Exhibit 10.44
"***" - Confidential portions of this Agreement have been omitted and
filed separately with the Securities and Exchange Commission under a
Confidential Treatment Request, pursuant to Rule 406 of the
Securities Act of 1933, as amended
By-Products Marketing
Agreement
ConAgra Trade Group Pty Ltd
ConAgra Trade Group, Inc.
Australia Meat Holdings Pty Limited
BY-PRODUCTS MARKETING AGREEMENT
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Consents or approvals 4
2. TERM 4
2.1 Term 4
2.2 Termination of Licence 4
2.3 Clauses which Survive Termination 4
3. SPECIFICATIONS 4
4. TRADING NAME 5
4.1 CTG's Common Law Rights 5
4.2 Licence of Common Law Rights 5
4.3 Trade Xxxx Licence 5
4.4 Purpose of Licence 5
4.5 Termination 5
4.6 Power of Attorney 6
5. PROVISION OF KEY PERSONS 6
5.1 Secondment of Key Persons 6
5.2 Responsibilities of CTG for Key Persons 6
5.3 Responsibilities of AMH for Key Persons 6
5.4 Key Persons not Employees of AMH 7
6. PRICES 7
6.1 Notification of Prices 7
6.2 Agreement of Prices 7
6.3 Adjustment of Prices to Reflect Freight Differentials 7
7. CALCULATION OF PROFIT AND LOSS 7
7.1 Maintain Accounts 7
7.2 Debited Amounts 8
7.3 Australian Business Account Only 8
7.4 Credited Amounts 8
7.5 Annual Review of Debited Amounts 8
8. FEES 9
8.1 Fees 9
8.2 Base Fee 9
8.3 Bonus Fee 9
8.4 Interim Profit or Loss statements 10
8.5 Profits or Losses for the Term 10
8.6 Payment of Fees 10
9. AUDIT 10
9.1 Access to Records 10
9.2 Discrepancies disclosed by audit 10
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10. GST 10
10.1 GST to be added to amounts payable 11
10.2 Liability net of GST 11
10.3 Timing of the payment of the GST Amount 11
10.4 Revenue exclusive of GST 11
10.5 Cost exclusive of GST 11
10.6 GST obligations to survive termination 11
10.7 Application to New Zealand GST 11
11. FORCE MAJEURE 12
12. NO CONSEQUENTIAL DAMAGES 12
13. RELATIONSHIP OF THE PARTIES 12
13.1 No partnership 12
14. INDEMNITY 12
15. RECALL OF PRODUCTS 13
16. COMPLIANCE WITH LAW/TESTING 13
17. NOTICES 13
18. ENTIRE AGREEMENT 14
19. ASSIGNMENT 14
20. NO WAIVER 15
21. FURTHER ASSURANCES 15
22. NO MERGER 15
23. GOVERNING LAW AND JURISDICTION 15
24. COUNTERPARTS 15
SCHEDULE 1 - PRICES 17
SCHEDULE 2 - SPECIFICATIONS 1
SCHEDULE 3 - FORM 5 3
SCHEDULE 4 - BID SHEETS 4
SCHEDULE 5 - MONTHS AND QUARTERS 6
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DATE October 8, 2003
PARTIES
1. CONAGRA TRADE GROUP PTY LTD (ACN 003 823 701) incorporated in
New South Wales of 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx (XXX)
2. CONAGRA TRADE GROUP, INC., incorporated in Delaware, United
States of America (CTGI)
3. AUSTRALIA MEAT HOLDINGS PTY LIMITED (ACN 011 062 338)
incorporated in
Queensland of 000 Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxx (AMH)
RECITALS
A As at the date of this Agreement, AMH carries on the Business
through its division known as "CTG Rendered Products".
B The parties wish to provide for AMH to continue to carry on
the Business using the Registered Business Name. AMH also
wishes to retain the licence previously granted to AMH by CTG
to use CTG's common law rights in the Business Name and CTG's
rights in the Trade Xxxx.
C CTG and CTGI agree to provide to AMH the services of the Key
Persons, to assist with the marketing and selling of the
Products.
D In consideration of supplying the services of the Key Persons
to AMH, AMH will pay to CTG the fees calculated in accordance
with this Agreement.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
BASE FEE means the fee referred to and calculated in accordance with
clause 8.2.
BONUS FEE means the fee referred to and calculated in accordance with
clause 8.3.
BUSINESS means the marketing and sale of the Products by AMH in either
Australia or New Zealand, whether through CTGRP or otherwise.
BUSINESS NAME means the name "CTG Rendered Products".
COMMENCEMENT DATE means (despite the date on which this Agreement is
executed) 26 May 2003.
CTGRP means the trading division of AMH known as "CTG Rendered
Products" as at the date of this Agreement.
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FACILITIES means the facilities owned by AMH and known as:
o Dinmore,
Queensland;
o Beef City,
Queensland;
o Rockhampton;
Queensland; and
o Townsville,
Queensland,
(each of them a FACILITY).
FORM 5 means a Form 5 "Notice of Cessation of Business under Business
Name" pursuant to the Business Names Act 1962 (Qld) (or such other form
as may replace that form) substantially in the form set out in Schedule
3.
KEY PERSONS means Xxx Xxxxxxx, Xxxx Xxxxx and Xxxxx Xxxxxxxxxx for so
long as they remain employees of CTG located in Australia, Xxxxx
Xxxxxxxxxx for so long as he remains an employee of CTG located in New
Zealand, Xxxx Xxxxx for so long as he remains an employee of CTGI in
Australia and such other employees of CTG or CTGI as the parties may
agree from time to time.
LOSS means an amount (which is a negative number) which is:
(a) the total of the amounts credited to the accounts kept in
respect of the Business during the relevant Year; less
(b) the total of the amounts debited to the accounts kept in
respect of the Business during the relevant Year.
MONTH means each monthly financial reporting period for CTG during the
Term as set out in Schedule 5.
PRICE means the notional price for a Product calculated in accordance
with clause 6.
PRODUCTS means
(a) all of the following rendered by-products produced by AMH at
the Facilities:
o blood meal;
o inedible tallow;
o anti/post mortem tallow;
o edible tallow;
o meat and bone meal; and
o save all tallow; and
(b) all rendered meat by-products of any kind purchased by AMH in
Australia or New Zealand from third parties for the purpose of
resale.
(each of them a PRODUCT).
PROFIT means an amount (which is a positive number) which is:
(a) the total of the amounts credited to the accounts kept in
respect of the Business during the relevant Year; less
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(b) the total of the amounts debited to the accounts kept in
respect of the Business during the relevant Year.
QUARTER means quarterly financial period for CTG during the Term as set
out in Schedule 5.
REGISTERED BUSINESS NAME means the business name "CTG Rendered
Products" registered in
Queensland with the number BN17329036.
SALARY AMOUNT means an amount equal to the salary and employee
benefits, including any taxes and charges, which CTG or CTGI is liable
to pay to, or in respect of the employment by CTG or CTGI of the Key
persons for a Month.
SPECIFICATIONS means the specifications for the Products set out in
Schedule 3.
TERM means the term of this Agreement in clause 2.
TRADE XXXX means Australian Trade Xxxx registration 842732 owned by
CTG.
YEAR means each yearly financial reporting period for CTG during the
Term as set out in Schedule 5.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural, and the converse also
applies.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person includes a corporation, trust,
partnership, unincorporated body or other entity, whether or
not it comprises a separate legal entity.
(e) A reference to a clause, schedule or annexure is a reference
to a clause of or schedule or annexure to, this Agreement.
(f) A reference to an agreement or document (including a reference
to this Agreement is to the agreement or document as amended,
supplemented, novated or replaced, except to the extent
prohibited by this Agreement or that other agreement or
document.
(g) A reference to writing includes any method of representing or
reproducing words, figures, drawings, or symbols in a visible
and tangible form.
(h) A reference to a party to this Agreement or another agreement
or document includes the party's successors, permitted
substitutes and permitted assigns.
(i) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and regulation or statutory
instrument issued under it.
(j) A reference to conduct includes an omission, statement or
undertaking, whether or not in writing.
(k) A reference to an agreement includes any undertaking, deed,
agreement and legally enforceable arrangement, whether or not
in writing, and a reference to a document includes an
agreement (as so defined) in writing and any certificate,
notice, instrument or document of any kind.
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(l) A reference to dollars or $ is to Australian currency.
(m) A reference to an asset includes any real or personal, present
or future, tangible or intangible property or asset (including
intellectual property) and any right, interest, revenue or
benefit in, under or derived from the property or asset.
(n) All references to time are to Brishane time.
(o) Mentioning anything after includes, including, for example, or
similar expressions, does not limit what else might be
included.
(p) Nothing in this Agreement is to be interpreted against a party
solely on the ground that the party put forward this Agreement
or a relevant part of it.
(q) Schedules and annexures to this Agreement form part of the
terms of this Agreement.
1.3 CONSENTS OR APPROVALS
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion unless expressly
provided otherwise.
2. TERM
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2.1 TERM
This Agreement commences on the Commencement Date and expires on 31 May
2005 (the "Initial Term"). Provided, however, this Agreement shall
automatically renew for additional one (1) year terms thereafter on the
same terms and conditions unless either party gives written notice of
its intention not to renew the Agreement at least ninety (90) days
prior to the end of the Initial Term or any renewal term. Provided
further, that in the event CTG notifies Swift & Company and AMH that
CTG, CTGI or one of their affiliates have executed a long-term
agreement for the storage of rendered by-products (the "Storage
Agreement"), then the parties agree to amend this Agreement so that the
term of this Agreement shall expire at the same time as the Storage
Agreement. Provided further, however, that the foregoing sentence shall
not apply unless AMH or one of its affiliates has approved the terms of
the Storage Agreement.
2.2 TERMINATION OF LICENCE
At the expiration of the Term, the licence of the common law rights
in the Business Name and the licence of the Trade Xxxx granted under
clause 4 of this Agreement are terminated.
2.3 CLAUSES WHICH SURVIVE TERMINATION
Clauses 4 (except for subclauses 4.2, 4.3 and 4.4), 8, 9, 12, 14 and 15
shall survive the expiry of this Agreement.
3. SPECIFICATIONS
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AMH shall ensure that each of the Products conforms with the
Specifications for that Product.
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4. TRADING NAME
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4.1 CTG'S COMMON LAW RIGHTS
AMH acknowledges that CTG has common law rights in the Business Name
and that AMH has no rights in the Business Name.
4.2 LICENCE OF COMMON LAW RIGHTS
CTG grants to AMH for the duration of the Term a revocable and
non-exclusive licence of CTG's common law rights in the Business Name
for the purposes of the Business. Under the licence, AMH may be the
registered proprietor of the Registered Business Name.
4.3 TRADE XXXX LICENCE
(a) CTG grants to AMH, for the duration of the Term, a revocable
and non-exclusive licence to use the Trade Xxxx.
(b) AMH may only use the Trade Xxxx in respect of the Products if
such Products conform to the standards of manufacture and
quality laid down, given or approved from time to time by CTG.
(c) During the term of this Agreements and on request by CTG, AMH
hereby agrees:
(i) that it will supply CTG, at all reasonable times,
samples or specimens or all wrappers, packaging and
literature in use by AMH relating to any of the
Products offered for sale by AMH; and
(ii) CTG or its duly authorized representative or agent
has the right to inspect the Products for which the
Trade Xxxx is to be used and to inspect the methods
of making said Products on the premises of AMH or
on the premises of any sub-contractor of AMH.
4.4 PURPOSE OF LICENCE
The parties acknowledge that the licences granted under clauses 4.2 and
4.3 are limited solely to the purpose of carrying on the Business and
for no other purpose.
4.5 TERMINATION
(a) Immediately upon the expiration of the Term, AMH will
cooperate with CTG and execute and lodge all documents
(including but not limited to the Form 5), and do all things
necessary to have AMH's registration as proprietor of the
Registered Business Name cancelled.
(b) Following expiration of the Term, AMH will not, anywhere in
the world:
(i) claim any common law rights in;
(ii) make an application for a registered trade xxxx for;
(iii) carry on business using;
(iv) make any application for any interest in a business
name or company name containing,
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the words "CTG", "CTG Rendered Products" or any
derivation thereof.
4.6 POWER OF ATTORNEY
AMH irrevocably appoints CTG and each director and secretary of CTG
from time to time severally as its attorneys, in its name and on its
behalf or otherwise, to sign, execute and do all things whatsoever
which AMH ought to sign, execute and do for the purposes of clause 4.5.
5. PROVISION OF KEY PERSONS
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5.1 SECONDMENT OF KEY PERSONS
CTG shall second and shall procure that CTGI seconds the Key Persons
who are their respective employees to AMH for the duration of the Term
to provide to AMH the same services in relation to the Business as were
provided by employees of CTG or CTGI seconded to AMH for a similar
purpose during the 12 month period prior to the Commencement Date.
5.2 RESPONSIBILITIES OF CTG FOR KEY PERSONS
CTG shall and shall procure that CTGI:
(a) direct the Key Persons who are their respective employees, in
performing the services listed in clause 5.1, to act in
accordance with the requests and directions of AMH, provided
those requests and directions are consistent with the terms
of this Agreement; and
(b) use reasonable endeavours to ensure that the Key Persons who
are their respective employees, subject to paragraph (a);
(i) perform the services set our in clause 5.1 with all
skill, care and diligence to be expected from a
qualified, competent and experienced person
performing services of similar scope and complexity;
(ii) comply with all applicable laws and requirements
including all applicable permits, licences,
authorisations and accreditations held by AMH and
notified by AMH to the Key Persons, CTG and CTGI in
writing; and
(iii) comply with all AMH company policies notified by AMH
to the Key Persons, CTG and CTGI in writing.
5.3 RESPONSIBILITIES OF AMH FOR KEY PERSONS
(a) AMH shall indemnify and hold CTG and CTGI harmless from and
against any and all costs, liabilities, losses, claims,
actions, suits, proceedings or demands whatsoever (including
legal fees and costs on a full indemnity basis) that may be
incurred or sustained by CTG or CTGI as result of any act,
omission, error or judgement (whether or not negligent or
otherwise actionable) committed by a Key Person in performing
the services set out in clause 5.1.
(b) AMH shall effect and maintain a public liability insurance
policy for not less than $10 million noting CTG and CTGI as
separate insured parties and insuring each of AMH's, CTG's and
CTGI's insurable interest in relation to the actions of the
Key Persons in performing the services set out in clause 5.1.
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5.4 KEY PERSONS NOT EMPLOYEES OF AMH
During the period of any secondment under this Agreement, each Key
Person will remain an employee of CTG or CTGI (as the case may be).
Nothing in this Agreement shall be interpreted as construing that any
Key Person is an employee of AMH.
6. PRICES
6.1 NOTIFICATION OF PRICES
Upon request by AMH, and, in any event if no such request is made, no
later than 2 business days prior to the commencement of a Month, CTG
will, or will cause the Key Persons to, calculate the Prices for each
Product in accordance with Schedule 1 for that Month and for the two
Months following that Month and notify AMH of those prices in the form
set out in Schedule 4.
6.2 AGREEMENT OF PRICES
Prior to the commencement of a Month, CTG and AMH shall use their best
endeavours to agree on the Prices to apply for each Product for that
Month. If the parties fail to agree a Price for a Product prior to
the commencement of a Month, the Price for that Product for that Month
will be the Price for that Product for the Month most recently notified
by CTG to AMH pursuant to clause 6.1.
6.3 ADJUSTMENT OF PRICES TO REFLECT FREIGHT DIFFERENTIALS
The parties acknowledge that certain items in Schedule 1 reflect actual
freight differentials as at the Commencement Date. The parties agree to
review and amend at the end of each Quarter those items set out in
Schedule 1 which incorporate a freight differential so that they
reflect actual freight differentials as at the end of that Quarter. In
the event that the parties cannot agree the adjusted Price to reflect
actual freight differentials as at the end of a particular Quarter, the
freight differential shall remained unchanged.
7. CALCULATION OF PROFIT AND LOSS
7.1 MAINTAIN ACCOUNTS
AMH shall maintain and keep separate accounts, books, ledgers,
financial and other records in respect of the Business for each
jurisdiction in which the Business is conducted. AMH shall ensure that
all such accounts, books, ledgers, financial and other records in
respect of the Business in each such jurisdiction:
(a) are fully and properly maintained and contain accurate records
of all matters required to be entered in them by generally
accepted accounting principles and practices in that
jurisdiction consistently applied and the provisions of this
Agreement;
(b) do not contain or reflect any material inaccuracies or
discrepancies;
(c) are sufficient to enable CTG to conduct the audits
contemplated by clause 9.
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7.2 DEBITED AMOUNTS
AMH shall cause the following amounts incurred in respect of the
Business conducted in each jurisdiction to be debited to the accounts
kept in respect of the Business for each such jurisdiction:
(a) the Price for the Products calculated in accordance with
clause 6.2;
(b) costs incurred for storing Products in third party facilities
for longer than 7 days (on an actual cost to AMH, without xxxx
up, basis);
(c) interest charged to AMH by third party creditors referable to
the activities of the Business;
(d) the Salary Amount notified to AMH by CTG pursuant to clause
8.2(c) of this Agreement;
(e) all ocean freight costs for shipping of Products and all FOB
costs;
(f) interest on working capital at the rate charged from time to
time by AMH to its debtors;
(i) debtors outstanding for 21 days or more from invoice
date; and
(ii) inventory stored in third party facilities;
provided, however, that credits shall be made to the accounts
kept in respect of the Business for any interest and inventory
storage charges which have not been incorporated in the
pricing for such items and have been collected separately by
the Business.
(g) an amount equal to the salaries of staff employed by AMH to
provide clerical sales support services for trading assistance
to the Business for that jurisdiction (on a pro rata basis
based on the number of hours worked for the Business where
those employees also perform services for AMH outside of the
Business);
(h) the debits set out in Schedule 1.
7.3 AUSTRALIAN BUSINESS ACCOUNT ONLY
In addition to the amounts listed in clause 7.2 to be debited to the
account, in respect of the Business carried out in Australia (the
AUSTRALIAN ACCOUNT), AMH shall cause the following amounts to be
debited to the Australian Account at the end of each Quarter:
(a) a fee of $64,000 per annum (applied pro rata where a relevant
part or term of this Agreement is less than one year) to cover
the cost of administrative support services provided by AMH in
respect of the Business; and
(b) an amount equal to 4.7% of AMH's costs for that Quarter
(without xxxx up) of running its Documentation and Treasury
departments (to cover the cost of services provided by those
departments in respect of the Business).
7.4 CREDITED AMOUNTS
AMH shall cause the amounts payable under invoices issued to the
purchasers of the Products to be credited to the accounts kept in
respect of the Business for each jurisdiction.
7.5 ANNUAL REVIEW OF DEBITED AMOUNTS
(a) Parties to agree
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Prior to the commencement of the second Year and each
subsequent Year the parties shall use their best endeavours to
agree on the amounts payable under clause 7.3(a) and 7.3(b)
(the AMOUNTS) for the forthcoming year.
(b) If parties cannot agree
If the parties fail to agree on the Amounts before the
commencement of the relevant Year then the matter will be
referred to PriceWaterhouseCoopers (Brisbane Office) (the
EXPERT) to be resolved by them acting as an expert.
The Expert's determination of the Amounts shall be binding.
(c) Amounts payable pending resolution
Whilst the determination of the Amounts is being resolved by
the Expert, debits shall continue to be made to the Australian
account at the rates charged the previous Year for such items.
(d) Expert's determination and adjustments
If the Amounts agreed or determined exceed the Amounts payable
under clauses 7.3(a) and 7.3(b) then AMH may deduct the
difference from the Australian Account.
If the Amount agreed or determined is less than the amounts
debited under clauses 7.3(a) and 7.3(b), then AMH must credit
the Australian Account by the amount of the difference.
(e) Cost of Expert
The parties must share the costs, fees and expenses of the
Expert equally.
8. FEES
8.1 FEES
In consideration of making available the Key Persons, AMH shall pay to
CTG the Base Fee and the Bonus Fee in accordance with clause 8.6.
8.2 BASE FEE
(a) The Base Fee is the total Salary Amount notified to AMH by CTG
pursuant to clause 8.2(c) during the relevant Quarter, less
the Adjustment (if any) calculated pursuant to paragraph (b),
provided however, that the Base Fee cannot be less than zero.
(b) The Adjustment is, in respect of each Quarter of each Year, an
amount equal to half of the loss for that year to date less
any previous Adjustment payments made in relation to that
Year.
(c) At the end of each Month CTG shall notify AMH of the Salary
Amount.
8.3 BONUS FEE
The Bonus Fee is, in respect of each Quarter of each Year, an amount
equal to half of the profit for that Year to date less any previous
Bonus Fee payments made in relation to that Year.
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8.4 INTERIM PROFIT OR LOSS STATEMENTS
Within 7 days of the end of each Month, AMH will deliver to CTG a
statement showing the profit or loss (as the case may be) for the
preceding Month containing sufficient particulars to enable CTG to
verify the profit or loss (as the case may be) for that Month.
8.5 PROFITS OR LOSSES FOR EACH YEAR
Within 7 days of the expiry of each Year, AMH will deliver to CTG a
statement showing the Profit or Loss (as the case may be) for that Year
containing sufficient particulars to enable CTG to verify the Profit or
Loss (as the case may be) for that Year.
8.6 PAYMENT OF FEES
Within 10 days of the expiry of each Quarter, AMH shall pay to CTG the
Base Fee and the Bonus Fee.
9. AUDIT
9.1 ACCESS TO RECORDS
AMH will, upon reasonable notice by CTG, permit CTG or any other person
that CTG may from time to time nominate by notice to AMH, to inspect
the accounts and records kept by AMH in relation to the Business for
the purpose of auditing any statement given pursuant to clause 8.4 or
clause 8.5. The cost of any such audit shall be borne by CTG; provided
however, that if such audit reveals a different amount of Profit or
Loss for the Business, requiring additional amounts to be paid by AMH
to CTG under clause 9.2, then AMH and CTG shall each pay one half (1/2)
the cost of such audit.
9.2 DISCREPANCIES DISCLOSED BY AUDIT
If the audit conducted pursuant to clause 9.1 reveals that a different
amount of Profit or Loss (as the case may be) was generated by the
Business during the Year than that shown in the statement given
pursuant to clause 8.5, the amount payable under clause 8.6 will be
varied accordingly as if the Profit or Loss (as the case may be)
revealed by the audit was the Profit of Loss shown in that statement.
10. GST
Subject to clause 10.7, the following definitions shall apply in this
clause:
CONSIDERATION has the meaning given by the GST Law.
GST has the meaning given by the GST Law.
GST AMOUNT means in relation to a Supply the amount of GST payable in
respect of that Supply.
GST GROUP has the meaning given by the GST Law.
GST LAW has the meaning given by the A New Tax System (Goods and
Services Tax) Xxx 0000 (Cth), or, if that Act does not exist means any
Act imposing or relating to the imposition or administration of a goods
and services tax in Australia and any regulation made under that Act.
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INPUT TAX CREDIT has the meaning given by the GST Law and a reference
to an input Tax Credit entitlement of a party includes an Input Tax
Credit for an acquisition made by that party but to which another
member of the same GST Group is entitled under the GST Law.
INVOICE has the meaning given by the GST Law.
SUPPLY has the meaning given to the term Taxable Supply by the GST Law
excluding the reference to section 84-5 of the A New Tax System (Goods
and Services Tax) Xxx 0000 (Cth).
10.1 GST TO BE ADDED TO AMOUNTS PAYABLE
If GST is payable on a Supply made under, by reference to or in
connection with this Agreement, the party providing the Consideration
for that Supply must also pay the GST Amount as additional
Consideration. This clause does not apply to the extent that the
Consideration for the Supply is expressly stated to be GST inclusive.
10.2 LIABILITY NET OF GST
Any reference in the calculation of Consideration or of any indemnity,
reimbursement or similar amount to a cost, expense or other liability
incurred by a party, must exclude the amount of any Input Tax Credit
entitlement of that party in relation to the relevant cost, expense or
other liability. A party will be assumed to have an entitlement to a
full Input Tax Credit unless it demonstrates otherwise prior to the
date on which the Consideration must be provided.
10.3 TIMING OF THE PAYMENT OF THE GST AMOUNT
Subject to having first received a Tax Invoice, the GST Amount is
payable at the same time as the consideration for the Supply.
10.4 REVENUE EXCLUSIVE OF GST
Any reference in this Agreement to price, value, sales, revenue or a
similar amount (REVENUE), is a reference to that Revenue exclusive of
GST.
10.5 COST EXCLUSIVE OF GST
Any reference in this Agreement (other than in the calculation of
Consideration) to cost, expense or other similar amount (COST), is a
reference to that Cost exclusive of GST.
10.6 GST OBLIGATIONS TO SURVIVE TERMINATION
This clause will continue to apply after expiration or termination of
this Agreement.
10.7 APPLICATION TO NEW ZEALAND GST
The provisions of this clause 10 shall apply with respect to the goods
and services tax chargeable in accordance with the Goods and Services
Tax Act (1985) (New Zealand) (the NZ ACT), save that for this purpose
the terms Consideration, GST, Input Tax Credit, Supply and Tax Invoice
shall have the meaning given to them in the NZ Act.
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11. FORCE MAJEURE
Neither CTG, CTGI nor AMH shall be liable for, or deemed to be in
default under this Agreement or subject to any remedies of the other
party as a result of, delays or performance failures due to power
failures, fire, acts of God, acts of civil or military authority,
embargoes, epidemics, terrorism, strikes, riots or similar causes
beyond each party's reasonable control, and without fault or negligence
of CTG, CTGI or AMH. Each party shall use reasonable efforts to
minimize the impact of any force majeure condition it experiences on
the other party to this Agreement and to otherwise keep the other party
timely advised as to minimisation and removal of such conditions.
12. NO CONSEQUENTIAL DAMAGES
Subject to clause 14, in no event shall a party, or its related bodies
corporate, or its affiliates or their respective officers, directors,
representatives and employees be liable to the other party or its
related bodies corporate, or its affiliates or their respective
officers, directors, representatives and employees, whether based in
contract, tort, warranty, or any other legal or equitable grounds, for
any loss of the income, profit or savings or cost of capital or
financing of the other party or its affiliates for any indirect,
incidental or consequential damages or for any exemplary, special or
punitive damages of any kind, resulting from or relating to this
Agreement or the products delivered hereunder, even if the other party
has been advised of the possibility of such damages.
13. RELATIONSHIP OF THE PARTIES
13.1 NO PARTNERSHIP
(a) This Agreement shall not be interpreted as constituting:
(i) the relationship of CTG, CTGI and AMH as a
partnership, xxxxx-partnership, association or any
other relationship in which one or more of CTG, CTGI
and AMH may (except as specifically provided for in
this Agreement) be liable generally for the acts or
omissions of any other party; or
(ii) CTG, CTGI or AMH as the general agent or
representative of one another with the exception of
any powers of attorney specifically granted or
contemplated by this Agreement.
(b) In particular, but without limitation, neither CTG, CTGI nor
AMH has the authority to pledge or purport to pledge the
credit of the other or to make or give (or purport to make or
give) any representations, warranties or undertakings for or
on behalf of the other.
14. INDEMNITY
AMH shall indemnify and hold CTG and CTGI harmless from and against any
and all costs, liabilities, losses, claims, actions, suits, proceedings
or demands whatsoever (including legal fees and costs on a full
indemnity basis) which may be brought or commenced against CTG or CTGI,
its related bodies corporate, its affiliates, its officers, directors,
employees or agents in connection with or arising in any way out of the
Products of AMH's use of the Business Name or the Trade Xxxx, and for
any breach of AMH's obligations hereunder.
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BY-PRODUCTS MARKETING AGREEMENT
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15. RECALL OF PRODUCTS
AMH, CTG and CTGI agree to promptly communicate about any condition or
event that could result in a recall of the Products. In the event AMH,
CTGI or CTG determines that a recall is required, in whole or in part,
of any of the Products. AMH agrees to cooperate fully with CTG in
effecting any such recall of Products. To the extent practicable, CTG
agrees to give AMH advance notice of any such recall and work with AMH
to coordinate such recall and, consistent with CTG's responsibilities,
to minimize the impact of such recall on AMH and CTG. AMH shall bear
the cost of any such recall that arises under this Agreement, including
any costs or damages incurred by CTG, CTGI or the purchasers of such
Products.
16. COMPLIANCE WITH LAW/TESTING
AMH shall comply with all applicable laws and requirements when
producing the Products, including all applicable permits, licenses,
authorizations and accreditations. Notwithstanding any other provision
of this Agreement, CTG and CTGI shall have no obligation to test or
analyze any Product for conformance to Specifications or for any
contamination, adulteration or other circumstances that may affect
saleability.
17. NOTICES
Any notice, demand, consent or other communication (a Notice) given or
made under this Agreement:
(a) must be in writing and signed by the sender or a person duly
authorized by the sender;
(b) must be addressed and delivered to the intended recipient at
the address or fax number below or the address or fax number
last notified by the intended recipient to the sender after
the date of this Agreement:
(i) to CTG: ConAgra Trade Group Pty Ltd:
Attention: Xxxxxx Xxxxxx
Public Officer
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx, 0000
Xxxxxxxxx
Fax No: 00 0 0000 0000
(ii) with a copy to ConAgra Foods, Inc;
Attention: Corporate Controller
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000-0000
Xxxxxx Xxxxxx of America
Fax No: 000 000 0000
(iii) to CTGI ConAgra Trade Group, Inc:
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BY-PRODUCTS MARKETING AGREEMENT
--------------------------------------------------------------------------------
Attention: Xxxxxx X Xxxxxxx
BVP SFO ConAgra Trade
Group, Inc
XxxXxxx Xxxxx Xxx 0000
Xxxxx
Xxxxxxxx, 00000-0000
Xxxxxx Xxxxxx of America
Fax No: 000 000 0000
(iv) with a copy ConAgra Foods, Inc.
to Attention: Corporate Controller
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000-0000
Xxxxxx Xxxxxx of America
Fax No: 000 000 0000
(v) to AMH: Australia Meat Holdings Pty Ltd;
Attention: Xx Xxx Xxxxxxxx
Company Secretary
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx, 0000
Xxxxxxxxx
Fax No: 00 0 0000 0000
(vi) to Swift: Swift & Company:
Attention: General Counsel
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax No: 000 000 0000
(c) will be taken to be duly given or made when (i) delivered
personally or (ii) sent by facsimile or reputable overnight
courier. Notice by mail shall be deemed received within five
(5) business days of mailing as provided herein. Notice by
facsimile shall be deemed received within twenty-four hours
(24) of transmittal of such facsimile. If delivery or receipt
occurs on a day that is not a business day in the place to
which the Notice is sent or is later than 4pm (local time) at
that place, it will be taken to have been duly given or made
at the commencement of business on the next business day in
that place.
18. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties with
respect to its subject matter. It sets out the only conduct relied on
by the parties and supersedes all earlier conduct and prior agreements
and understandings between the parties in connection with its subject
matter.
19. ASSIGNMENT
Neither party may assign the Agreement or any of its rights and
obligations under this Agreement, without the prior written consent of
the other party, provided however that to the extent required by
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BY-PRODUCTS MARKETING AGREEMENT
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AMH's senior lenders, the parties shall execute and deliver such
documents as may be necessary to effect a collateral assignment of the
rights arising hereunder.
20. NO WAIVER
No failure to exercise nor any delay in exercising any right, power or
remedy under this Agreement operates as a waiver. A single or partial
exercise or waiver of the exercise of any right, power or remedy does
not preclude any other or further exercise of that or any other right,
power or remedy. A waiver is not valid or binding on the party granting
that waiver unless made in writing.
21. FURTHER ASSURANCES
Each party must do anything (including executing agreements and
documents) necessary or desirable to give full effect to this Agreement
and the transactions contemplated by it.
22. NO MERGER
The rights and obligations of the parties will not merge on the
completion of any transaction contemplated by this Agreement. They
will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing a transaction.
23. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of
Queensland. Each party
submits to the jurisdiction of courts exercising jurisdiction there,
and waives any right to claim that those courts are an inconvenient
forum.
24. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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BY-PRODUCTS MARKETING AGREEMENT
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EXECUTED in
EXECUTED by CONAGRA TRADE GROUP PTY LTD:
/s/ XXXXXXX X. XXXXXXX
-------------------------------- --------------------------------
Director Signature Director/Secretary Signature
Xxxxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Print Name Print Name
EXECUTED by AUSTRALIA MEAT HOLDINGS PTY
LIMITED:
/s/ XXXXX XXXXX /s/ XXX XXXXXXXX
-------------------------------- --------------------------------
Director Signature Secretary Signature
Xxxxx Xxxxx Xxx Xxxxxxxx
-------------------------------- --------------------------------
Print Name Print Name
EXECUTED by CONAGRA TRADE GROUP, INC:
/s/ XXXXXXX X. XXXXXXX
-------------------------------- --------------------------------
Director Signature Director/Secretary Signature
Xxxxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Print Name Print Name
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BY-PRODUCTS MARKETING AGREEMENT
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SCHEDULE 1 - PRICES
Prices notified to AMH by CTG will be calculated as follows:
o Australian meat and bone meal will be priced on a Delivered (Brisbane)
Container Terminal (DCT) basis;
o Australian blood meal will be priced on an "ex piant" basis;
o Australian tallow for Dinmore and Beef City will be priced on a
delivered tank farm basis in Brisbane;
o all tallow products for Rockhampton and Townsville will be priced on an
FOB basis with full cost recovery for movement from ex works to FOB;
o all Prices are to be calculate on a GST exclusive basis;
o the Price for Products purchased from third parties for the purpose of
onsale shall be the actual purchase price paid by AMH without markup.
Pricing for Products produced by AMH at the Facilities will be as follows:
Bloodmeal
Dinmore Market Price ex-Dinmore plant
Beef City "***" Dinmore price*
Rockhampton "***" Dinmore price*
Townsville Even Dinmore Price*
Meat and Bone Meal
Dinmore, Beef City and Rockhampton are priced off the Market Price DCT Brisbane
for the relevant specification. Townsville to receive "***" than that price. The
Townsville prices reflect ocean freight differentials as at the Commencement
Date and are to be reviewed at the end of each Quarter pursuant to clause 6.3.
Ex Works Credits
Meat and Bone Meal
As the pricing arrangement is on a delivered basis, tonnage that is sold on an
ex works basis (domestic) will be debited back to the accounts kept in respect
of the Business at the end of each Quarter as follows:
Dinmore Credit "***"
Beef City Credit "***"
Rockhampton Credit "***"
Townsville "***"
These reflect actual inland freight differentials exclusive of GST as at the
Commencement Date and are to be reviewed at the end of each Quarter pursuant to
clause 6.3.
Bloodmeal
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BY-PRODUCTS MARKETING AGREEMENT
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As the Bloodmeal price is on an ex works basis, if blood meal is exported, the
delivery charges will be debited back to the accounts kept in respect of the
Business at the end of each Quarter as follows:
Dinmore Debit "***"
Beef City Debit "***"
Rockhampton Debit "***"
Townsville Debit "***"
These reflect actual inland freight differentials exclusive of GST as at the
Commencement Date and are to be reviewed Quarterly pursuant to clause 6.3.
All Tallow Products
For Dinmore, Beef City, Rockhampton and Townsville price off the Market Price
Delivered Brisbane for the relevant specification.
In regard to the delivery of Tallow within Australia, the accounts kept in
respect of the Business will be debited for transport costs in excess of
transport costs to Brisbane. Such transport rates will be considered a freight
differential and will be reviewed Quarterly pursuant to clause 6.3.
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BY-PRODUCTS MARKETING AGREEMENT
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SCHEDULE 2 - SPECIFICATIONS
PRODUCT SPECIFICATIONS
Bloodmeal Crude protein not less than 85%
Crude fibre not more than 3%
Moisture not to exceed 12%
Meat and bone meal (50%) Crude protein not less than 50%
Crude fat not more than 12%
Crude fibre not more than 3%
Phosphorous not less than 4%
Calcium not more than 12%
Moisture not more than 10%
Meat and bone meal (45%) Crude protein not less than 45%
Crude fat not more than 12%
Crude fibre not more than 3%
Phosphorous not less than 4%
Calcium not more than 12%
Moisture not more than 10%
Meat and bone meal (40%) Crude protein not less than 40%
Crude fat not more than 10%
Crude fibre not more than 3%
Phosphorous not less than 6%
Calcium not more than 15%
Moisture not more than 10%
Edible tallow FFA not to exceed .75%
FAC not to exceed 9 max
MIU not to exceed .25% max
Inedible tallow (prime) FFA not to exceed 1% max
FAC not to exceed 11A max
MIU not to exceed 1% max
Bleach not to exceed .5 red max
Titre 42 deg min
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BY-PRODUCTS MARKETING AGREEMENT
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Anti/Post mortem tallow Must pass post mortem inspection
FFA not to exceed 1% max
FAC not to exceed 11A max
MIU not to exceed 1% max
Bleach not to exceed .5 red max
Titre 42 deg min
Save-all tallow FFA not to exceed 55% max
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BY-PRODUCTS MARKETING AGREEMENT
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SCHEDULE 3 - FORM 5
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BY-PRODUCTS MARKETING AGREEMENT
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SCHEDULE 4 - BID SHEETS
WEEKLY BID SHEET
CTG RENDERED PRODUCTS
TALLOW DATE:
Plant Commodity (month) Tonnage Contract (month) Tonnage Contract (month) Tonnage Contract
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Dinmore Edible/Anti post
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Dinmore Inedible tallow
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Beef City Anti post
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Beef City Inedible tallow
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Rockhampton Inedible tallow
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Townsville Edible tallow
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Townsville Inedible tallow
----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Dollar @
MARKET COMMENTS:
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BY-PRODUCTS MARKETING AGREEMENT
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WEEKLY BID SHEET
CTG RENDERED PRODUCTS
PROTEINS DATE:
Plant Commodity [month] Tonnage Contract [month] Tonnage Contract [month] Tonnage Contract
----------- --------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Dinmore 50% MBM DCT
Dinmore 40% MBM
Dinmore Bloodmeal
Beef City 45% MBM DCT
Beef City Bloodmeal
Rockhampton 45% MBM DCT
Rockhampton Bloodmeal
Townsville 50% MBM DCT
Townsville Bloodmeal DCT
Dollar@
MARKET COMMENTS:
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PRODUCTS MARKETING AGREEMENT
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SCHEDULE 5- MONTHS, QUARTERS AND YEARS
MONTHS
-------------------------------------------------
MONTH FIRST DAY OF MONTH LAST DAY OF MONTH
----- ------------------ -----------------
1 28-May-2003 22-Jun-2003
2 23-Jun-2003 20-Jul-2003
3 21-Jul-2003 24-Aug-2003
4 25-Aug-2003 21-Sep-2003
5 22-Sep-2003 19-Oct-2003
6 20-Oct-2003 23-Nov-2003
7 24-Nov-2003 21-Dec-2003
8 22-Dec-2003 18-Jan-2004
9 19-Jan-2004 22-Feb-2004
10 23-Feb-2004 21-Mar-2004
11 22-Mar-2004 18-Apr-2004
12 19-Apr-2004 30-May-2004
13 31-May-2004 27-Jun-2004
14 28-Jun-2004 25-Jul-2004
15 25-Jul-2004 29-Aug-2004
16 30-Aug-2004 26-Sep-2004
17 27-Sep-2004 24-Oct-2004
18 25-Oct-2004 28-Nov-2004
19 29-Nov-2004 26-Dec-2004
20 27-Dec-2004 23-Jan-2005
21 24-Jan-2005 27-Feb-2005
22 28-Feb-2005 27-Mar-2005
23 28-Mar-2005 24-Apr-2005
24 25-Apr-2005 28-May-2005
25 30-May-2005 26-Jun-2005
26 27-Jun-2005 24-Jul-2005
27 25-Jul-2005 28-Aug-2005
28 29-Aug-2005 25-Sep-2005
BY-PRODUCTS MARKETING AGREEMENT
--------------------------------------------------------------------------------
-------------------------------------------------
MONTH FIRST DAY OF MONTH LAST DAY OF MONTH
----- ------------------ -----------------
29 26-Sep-2005 23-Oct-2005
30 24-Oct-2005 27-Nov-2005
31 28-Nov-2005 26-Dec-2005
32 26-Dec-2005 22-Jan-2006
33 23-Jan-2006 26-Feb-2006
34 27-Feb-2006 26-Mar-2006
35 27-Mar-2006 23-Apr-2006
36 24-Apr-2006 28-May-2006
37 29-May-2006 25-Jun-2006
38 26-Jun-2006 23-Jul-2006
39 24-Jul-2006 27-Aug-2006
40 28-Aug-2006 24-Sep-2006
41 25-Sep-2006 22-Oct-2006
42 23-Oct-2006 26-Nov-2006
43 27-Nov-2006 24-Dec-2006
44 25-Dec-2006 21-Jan-2007
45 22-Jan-2007 25-Feb-2007
46 26-Feb-2007 26-Mar-2007
47 26-Mar-2007 22-Apr-2007
48 23-Apr-2007 27-May-2007
49 28-May-2007 24-Jun-2007
50 25-Jun-2007 22-Jul-2007
51 23-Jul-2007 28-Aug-2007
52 27-Aug-2007 23-Sep-2007
53 24-Sep-2007 21-Oct-2007
54 22-Oct-2007 25-Nov-2007
55 26-Nov-2007 23-Dec-2007
56 24-Dec-2007 20-Jan-2008
57 21-Jan-2008 24-Feb-2008
58 25-Feb-2008 23-Mar-2008
59 24-Mar-2008 20-Apr-2008
60 21-Apr-2008 25-May-2008
BY-PRODUCTS MARKETING AGREEMENT
--------------------------------------------------------------------------------
-------------------------------------------------
MONTH FIRST DAY OF MONTH LAST DAY OF MONTH
----- ------------------ -----------------
61 26-May-2008 22-Jun-2008
62 23-Jun-2008 20-Jul-2008
63 21-Jul-2008 24-Aug-2008
64 25-Aug-2008 21-Sep-2008
65 22-Sep-2008 19-Oct-2008
66 20-Oct-2008 23-Nov-2008
67 24-Nov-2008 21-Dec-2008
68 22-Dec-2008 18-Jan-2009
69 19-Jan-2009 22-Feb-2009
70 23-Feb-2009 22-Mar-2009
71 23-Mar-2009 19-Apr-2009
72 20-Apr-2009 31-May-2009
QUARTERS
-----------------------------------------------------------
QUARTERS FIRST DAY OF QUARTER LAST DAY OF QUARTER
-------- -------------------- -------------------
1 26-May-2003 24-Aug-2003
2 25-Aug-2003 23-Nov-2003
3 24-Nov-2003 22-Feb-2004
4 23-Feb-2004 30-May-2004
5 31-May-2004 29-Aug-2004
6 30-Aug-2004 28-Nov-2004
7 29-Nov-2004 27-Feb-2005
8 28-Feb-2005 29-May-2005
9 30-May-2005 28-Aug-2005
10 29-Aug-2005 27-Nov-2005
11 28-Nov-2005 26-Feb-2006
12 27-Feb-2006 28-May-2006
13 29-May-2006 27-Aug-2006
14 28-Aug-2006 28-Nov-2006
15 27-Nov-2006 25-Feb-2007
16 26-Feb-2007 27-May-2007
17 28-May-2007 26-Aug-2007
BY-PRODUCTS MARKETING AGREEMENT
--------------------------------------------------------------------------------
18 27-Aug-2007 25-Nov-2007
19 26-Nov-2007 24-Feb-2008
20 25-Feb-2008 25-May-2008
21 26-May-2008 24-Aug-2008
22 25-Aug-2008 23-Nov-2008
23 24-Nov-2008 22-Feb-2009
24 23-Feb-2009 31-May-2009
YEARS
-----------------------------------------------------------
YEARS FIRST DAY OF YEAR LAST DAY OF YEAR
----- ------------------ ----------------
1 26-May-2003 30-May-2004
2 31-May-2004 29-May-2005
3 30-May-2005 28-May-2006
4 29-May-2007 27-May-2007
5 28-May-2007 25-May-2008
6 26-May-2008 31-May-2009
