EXHIBIT 10.8
AMENDMENT ONE TO
AGREEMENT C-1041-R2 and AGREEMENT H-1066-R2
July 31,1997
THIS AMENDMENT ONE is made to those certain agreements by and between ADVANSTAR
COMMUNICATIONS, INC. ("Customer") and ▇▇▇▇▇ PUBLICATIONS GROUP (two divisions of
▇▇▇▇▇ Corporation, f/k/a The ▇▇▇▇ Press and ▇▇▇▇▇ Printing Company; collectively
and individually herein, "Printer") dated May 5, 1995, and identified as
Agreement C-104 1-R2 and Agreement H-1066-R2 (the "Agreements"), effective July
28, 1997.
WHEREAS, Customer and Printer desire to amend the Agreements, which shall remain
in full force and effect with the modifications and additions set forth below;
THEREFORE, in consideration of the mutual covenants contained herein, Customer
and Printer agree as follows:
(1) The terms of the Agreements are extended from December 31, 2000 to December
31, 2002.
(2) Effective with Printer's invoices dated July 28, 1997, Printer will reduce
Customer's current manufacturing prices by four percent (4%) and furnish
Customer a revised price schedule reflecting this change within fifteen (15)
days of Customer's acceptance. Such revised prices shall remain firm through
December 31, 1998.
(3) The annual escalation cap, as included in Section 3-A of the Agreements,
shall be reduced to one percent (1%) in 1999 and remain at two percent (2%) in
years 2000, 2001 and 2002.
(4) The Printer will rebate a certain percentage of the aggregate annual
▇▇▇▇▇▇▇▇, invoiced to Customer from Printer, excluding paper, ink and freight,
upon achieving the following annual sales levels:
Sales Range excluding paper ink and freight: Progressive Rebate Percent
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-$7.50 - $7.99 Million One Half (1/2%) percent
-$8.00 - $8.50 Million One (1%) percent
-$8.51 - $8.99 Million One and one half (1-1/2) percent
-$9.00 - $9.50 Million Two (2%) percent
-$9.51 - $9.99 Million Two and one half (2-1/2) percent
-$10.00 - $10.50 Million Three (3%) percent
-$10.51 - $10.99 Million Three and one half (3-1/2%) percent
-$11.00 - $11.50 Million Four (4%) percent
-$11.51 - $11.99 Million Four and one half (4-1/2%) percent
-$12.00 Million and more Five (5%) percent
If the Customer's 1997 year-end aggregate annual ▇▇▇▇▇▇▇▇, excluding paper, ink
and freight are below $7 Million, this chart will be re-calculated with the same
increments at value $500,000 higher than the Customer's 1997 year-end aggregate
annual ▇▇▇▇▇▇▇▇, excluding paper, ink and freight.
The rebate will be calculated on a calendar year basis, beginning January 1,
1998, and include all work that is invoiced to Customer, by Printer, within the
calendar year. The rebate, if any, will be made within sixty (60) days of the
calendar year end and be applied as a credit to the Customer's account balance.
(5) Customer will begin to phase in its remaining mail prep requirements,
beginning in January, 1998, upon Printer's demonstrated ability and capability
to efficiently prepare and process Customer's mail lists. Mail prep requirements
will include list sortation, label output and other related postal requirements,
that Customer may request, from time to time.
(6) Printer has expressed an interest in furnishing Customer's paper
requirements and will submit a separate proposal to Customer. Upon receipt of
Printer's proposal, Customer will have the right to accept, in whole or part,
Printer's paper proposal. Customer shall not be obligated to accept Printer's
paper proposal, in whole or part, but has assured Printer that it will, in good
faith, evaluate Printer's proposal. If in the event Customer rejects Printer's
paper proposal, Customer will assist Printer to improve and/or enhance
runnability of paper furnished by Customer should such paper adversely affect
Printer's pressroom performance.
Customer's Acceptance: Printer's Acceptance:
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Advanstar Communications, Inc. ▇▇▇▇▇ Publications Group
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. By: /s/
_______________________________ ___________________________
Title: V.P. Publishing Operations Title: President
____________________________ ________________________
Date: 8/6/97 Date: 8/7/97
_____________________________ _________________________
H-1066-R2
PROPOSAL FOR
ADVANSTAR COMMUNICATIONS, INC.
SEPTEMBER 5, 1995
1. Subject of Agreement. Advanstar Communications, Inc. ("Customer"), a
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New York corporation located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and The ▇▇▇▇ Press ("Printer"), a division of ▇▇▇▇▇ Corporation, located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ agree that Printer shall print all of
Customer's requirements for the publication(s) identified as (Refer to Exhibit A
attached), commencing September 5, 1995 and continuing through December 31,
2000. Printer shall perform those printing services in accordance with the
specifications and within the time(s) set forth, respectively, in the attached
Specifications Schedule, and the Production Schedule either attached or (if not
attached) established by mutual agreement of the parties conforming to Section
25 below. This Agreement shall also apply to other, future work performed by
Printer for Customer, as provided in Section 22 below. Upon expiration of the
initial term, this Agreement shall be renewed for one (1) year, unless either
party gives written notice to the other of its intent to terminate this
Agreement not less than ninety (90) days prior to the expiration date of
December 31, 2000.
2. Prices. Prices for Printer's services are set forth in the attached
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Price Schedule. Those prices are based upon (i) Printer's labor costs on the
date of this Agreement, (ii) Printer's material costs on the date of this
Agreement and (iii) Customer's specifications set forth in the Specifications
Schedule. Any volume or trade discounts earned with respect to materials or
services utilized by Printer or for which Printer contracts on behalf of
Customer in connection with Printer's performance under this Agreement shall be
and remain the property of the Printer.
Customer recognizes that Printer's prices are exclusive of: (a)
transportation charges, (b) charges for storage of paper and other materials
furnished by Customer and of finished goods produced by Printer and (c) any
manufacturer's, retailer's occupation, use, sales, excise, value added or other
tax, or any charge of any nature whatsoever imposed by any governmental
authority. Any such tax or charge shall be the responsibility of the Customer;
charges for storage and transportation by Printer shall be based on Printer's
standard rates in effect from time to time.
3. Price Adjustments.
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A. Except as provided in Section 2 above and in subsections 3B and 3C below,
prices in this Agreement shall remain firm through December 31, 1996.
Thereafter, prices shall be adjusted to proportionately reflect a increases or
decreases, since the effective date of this Agreement, in labor costs, including
state or federal social security taxes or other taxes related to labor
utilization. However, in no such case shall the annual increase exceed two (2%)
percent.
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B. Printer will, on or before the effective date of any price change under
this Agreement, provide to Customer notice and an explanation of such change,
together with appropriate supporting data.
4. Payment Terms.
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A. Net payment shall be made in advance of the production date as outlined in
Exhibit B attached. Printer reserves the right to amend and/or adjust weekly
payment amounts as necessary.
B. Printer shall invoice Customer as follows:
(1) Preparatory work, plates, presswork, binding, cartons, pallets,
services preparatory for mailing finished work, freight and shipping
charges, and paper furnished by Printer - upon completion of Printer's
services with respect to each shipment of work under this Agreement;
provided, however, that if the Customer delays the performance of Printer's
services as established in the Production Schedule, printer may invoice for
services rendered to date.
(2) Storage of paper and other materials furnished by Customer and of
finished work produced by Printer - as provided for in Sections 14 and 15.
5. Production Schedule. Each of the parties will use its best efforts to
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comply with the Production Schedule at all times. Customer's delay in
furnishing and/or returning all paper, copy, specifications, artwork, proofs,
copies or other material in accordance with the Production Schedule may result
in an extension of scheduled delivery date(s) and/or additional charges to
Customer for accelerated production at Printer's standard overtime rates then in
effect. Any additional charges incurred by Printer on behalf of Customer, must
be pre-approved by Customer in advance of the charges incurred.
6. Proofs. Printer shall furnish Customer the proofs and materials set
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forth in the Specifications Schedule; and Customer shall return to Printer one
set of proofs for each completed page indicating any and all changes (editorial
and art). Printer shall not be liable for errors or subsequent corrective costs
for work completed pursuant to Customer's approval or for errors due to
Customer's failure to order proofs, refusal to accept proofs, failure to return
proofs marked with changes, or Customer's instructions to proceed without
submission of proofs.
7. Materials Furnished by Customer. Paper stock, film (negatives and
-------------------------------
positives), and other materials furnished by Customer shall be properly packed,
free from dirt, grit, torn sheets, bad splices, etc. and shall comply with the
specifications set forth in the Specifications Schedule, and within S W O P
standards. Additional costs due to delays, impaired production or the necessity
to repair or replace such materials because of Customer's failure to meet such
standards shall be charged to Customer at Printer's standard rates then in
effect. Semi-finished materials or covers furnished by Customer shall include
manufacturing waste allowances Printer deems adequate and shall be adjusted to
Printer's count.
-3-
Printer shall not be liable for the fitness of any materials furnished by
Customer unless directed by Customer, at additional cost to Customer, to make
corrections, repairs, or substitutions Printer deems necessary. In no event
does Printer assume responsibility for color fidelity of finished goods made
from film furnished by Customer, unless proofed by Customer to Printer's
requirements.
8. Responsibility for Content; Right to Rescind. Customer warrants that
--------------------------------------------
any matter it furnishes for printing pursuant to this Agreement does not
infringe any copyright or trademark, is not libelous, and does not otherwise
violate any law or infringe the rights of any third party. Customer agrees to
indemnify and hold Printer harmless against all losses, claims, damages,
liabilities and expenses, including Printer's attorneys' fees, which Printer may
incur as the result of any claims of such violation or infringement. Printer
shall have the right, without liability of any kind to Customer, to refuse to
print any publication containing material that, in Printer's good faith
judgment, may give rise to such claims.
9. Business Reply Mail. Customer shall be responsible for complying with
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all postal service requirements concerning business reply mail; and Printer
shall not be liable to Customer for any damages or claims whatsoever in the
event that business reply mail is rejected by the postal service.
10. Quantity Variation. Variations in quantity of 0% over and 0% under
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quantities ordered shall constitute acceptable delivery; and the excess or
deficiency shall be charged or credited at the "additional thousands" rate set
forth in the Price Schedule.
11. Warranty. Printer warrants that its services shall be performed
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according to the terms of this Agreement and S W O P standards acceptable in the
printing industry. However, due to differences in equipment, paper, inks, and
other conditions between the color proofing and production pressroom operations,
a reasonable variation in color between color proofs and the completed job, and
a reasonable variation on press, may exist. Work containing such variations
shall be considered in conformity with this warranty. Customer however,
retains, sole and absolute discretion in determining whether standards of
quality are sufficient. In the event Customer reasonably concludes performance
of Printer is inadequate, then Customer may, with 30 days written notice, remove
affected publications(s) from Printer without penalty to Customer.
12. Risk of Loss. The risk of loss of finished work shall pass to the
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Customer F.O.B. the facilities at which the same was printed, upon the earlier
of Printer's delivery to carrier or postal service, or delivery into storage,
regardless of whether the transport medium or storage facilities are owned
and/or operated by Printer. The risk of loss of property furnished and/or owned
by Customer shall be on the Printer while such property is at the facilities at
which the printing is to occur. Customer shall bear the risk of loss while
property is in transit to and from Printer's facilities.
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13. Passage of Title. Title to finished goods shall pass to Customer upon
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the earlier of Printer's delivery to carrier or postal service, or delivery into
storage, regardless of whether the transport medium or storage facilities are
owned and/or operated by Printer. Artwork, drawings, sketches, dummies, film
positives, negatives, and separations furnished by Printer shall become the
property of Customer upon completion of printing and payment therefor; provided,
however, that if such items are furnished by Printer by subcontracting the
production thereof, then title thereto shall pass to Customer upon shipment to
Printer. All printing plates shall be and remain the property of Printer.
14. Storage. Customer's materials which are in film form shall be stored
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without charge for a period of 12 months from the time of last use and
thereafter destroyed. If Customer's materials other than film are not shipped
within 24 hours after notification to Customer that they are ready to be
shipped, for any reason beyond Printer's reasonable control, including but not
limited to Printer's retention of such materials pursuant to Section 18 below,
Printer may store such materials at Customer's risk in a warehouse or at the
facilities at which printing occurred, and Customer shall pay all resulting
handling, transportation and storage charges as invoiced by Printer.
15. Customer Furnished Paper. If Customer furnishes paper, Printer agrees
------------------------
to provide storage, at no cost to Customer, for up to two (2) months supply.
Inventory levels exceeding two (2) months supply are subject to storage charges
which are included in the Price Schedule.
16. Contingencies. Printer shall not be liable for any delay or failure
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to perform under this Agreement if such delay or failure to perform arises out
of causes beyond its reasonable control, including but not limited to labor
trouble, fires, severe weather and other acts of God, accidents, governmental
acts and regulations, inability to obtain materials or carrier space or
equipment, or delays of suppliers or carriers. Printer shall give notice to
Customer of any such condition within a reasonable time after it arises.
If Printer's operations are suspended for any of the above causes, Printer
shall have the right to have the work performed by one of its subsidiaries on
the same terms and conditions set forth in this Agreement.
If Printer is unable for any reason to have the work done by one of its
subsidiaries, Customer shall have the right to have the services covered by this
Agreement performed elsewhere, and to remove from Printer's plant any and all
completed work, proofs, film, paper and other material and uncompleted work only
upon payment to Printer for all services rendered and materials furnished or
ordered by Printer prior to the date of suspension of operations.
The parties agree that when Printer resumes operation, upon 30 days'
written notice to Customer, production shall resume and continue at Printer's
facilities under the terms and conditions of this Agreement.
17. Claims. All claims for defective or damaged product or for shortages
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must be made by Customer in writing fully setting forth the nature of the
alleged defect, damage or
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shortage, within 30 days after Customer's receipt thereof. Customer's failure to
so notify Printer shall constitute irrevocable acceptance of the product and a
waiver of any claim of defect, damage or shortage. Claims for damage or loss in
transit must be made by Customer directly against the carrier.
18. Limitation of Remedies. Customer's sole and exclusive remedy for
----------------------
Printer's negligence or other tort, breach of warrant or contract or any other
claim arising out of or connected with to that portion of the work which is
nonconforming or, at Printer's option, printing of a correction in subsequent
work, if applicable.
IN NO EVENT SHALL PRINTER BE LIABLE FOR ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF
CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ON ANY
STRICT LIABILITY THEORY.
19. Printer's Security Interest and Rights Upon Customer's Default. If
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any amount due Printer from Customer shall remain unpaid at the due date, or if
Customer defaults in the performance of any other covenant or condition of this
Agreement or any other agreement with Printer, Printer shall have the right to
terminate its obligations under this Agreement, to declare immediately due and
payable all obligations of the Customer for the work theretofore furnished by
the Printer under this Agreement, to retain possession of any product or
materials owned by Customer (including but not limited to work-in-process and
undelivered work) pending payment in full of all such obligations, to change
credit terms with respect to any further work furnished by Printer, and/or to
suspend or discontinue any further performance for Customer until overdue
amounts are paid in full and until cash or security satisfactory to Printer
covering further work, as may be require by Printer, is deposited in advance
with Printer. These rights of Printer shall be in addition to and not in
substitution for any other rights of Printer; and suspension or discontinuance
of work by Printer pursuant to this Section shall not in any way prejudice any
claim or right of action which Printer may have by reason of any breach of this
Agreement or any other agreement by Customer.
20. Right to Assurance. Whenever either party in good faith has reason to
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question the ability or intent of the other party to perform, the party having
such question may demand in writing adequate assurance from the other party of
its ability or intent to perform, and may suspend performance under this
Agreement pending such assurance. In the event that such a demand is made and
such assurance is not given within a reasonable time, the party having made such
demand may treat that failure as an anticipatory repudiation of this Agreement
and exercise any appropriate remedy for repudiation.
21. Bankruptcy. If either party makes an assignment for the benefit of
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creditors, or admits in writing its failure or inability to pay its debts as
they become due, or becomes the subject of an "order for relief" within the
meaning of that phrase in the U.S. Bankruptcy Code, or applies for or consents
to the appointment of a receiver for any of its property, the other party
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may terminate this Agreement at any time, effective immediately upon notice.
Such termination shall not relieve either party from any obligations accrued
under this Agreement up to the date of notice of termination.
22. Waivers. No waiver by either party of any default by the other in the
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performance of or compliance with any provision, condition or requirement in
this Agreement shall be deemed to be a waiver of, or in any manner release such
other party from compliance with any such provision, condition or requirement in
the future; nor shall any delay or omission of either party to exercise any
right under this Agreement or otherwise in law in any manner impair the exercise
of any such right thereafter.
23. Other Work. In the event that, at any time during the term of this
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Agreement, Customer requests that Printer perform any work not related to the
publication(s) identified in Section 1 above, and Printer agrees to do so, all
rights and liabilities of Customer and Printer arising in connection with such
other work (as well as the rights and liabilities of the parties in connection
with Printer's work on the publication(s) identified in Section 1 above) shall
be governed exclusively by the terms and conditions contained in this Agreement;
provided, however, that, with respect to such other work, the Specifications,
Price and Production Schedules to this Agreement shall be superseded by
specifications, scheduling terms, quantities and prices set forth in accepted
orders, to the extent that the same are inconsistent with such Schedules. No
additional or different terms contained in any of Customer's forms or other
correspondence shall be of any force or effect.
24. Entire Agreement. The attached Specifications Schedule and Price
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Schedule and the Production Schedule either attached or established in
accordance with this Agreement form a part of this Agreement. This Agreement,
together with such Schedules, is intended by the parties as the final and
exclusive expression of their agreement, superseding all prior oral or written
agreements, understandings, negotiations, representations and correspondence
between the parties, on the subject of this Agreement. There are no conditions
to this Agreement not expressed in this Agreement.
25. Term and Termination. This Agreement shall take effect September 5,
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1995 and shall remain in effect through December 31, 2000. Either party may
terminate this Agreement at any time upon written notice to the other, but only
by specific reference to this Agreement (by title and date) in such notice. Any
such termination shall have no effect upon the respective rights and liabilities
of the parties in connection with any work previously performed under this
Agreement or in process on the date of termination, or in connection with any
accepted order under this Agreement, including but not limited to the commitment
set forth in Section 1 above.
26. Amendment. Except as provided in Sections 2 and 3, this Agreement,
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including the Schedules made a part of this Agreement, may be amended or
supplemented only by a writing signed on behalf of both of the parties by their
duly authorized representatives. In the event that the Production Schedule is
not attached, mutual agreement to a Production Schedule shall be established
only by a writing so signed.
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27. Assignment. Neither party shall assign any of its rights under this
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Agreement without the prior written consent of the other party. Subject to any
required consent, this Agreement shall inure to the benefit of and shall bind
the successors and assigns of the parties to this Agreement.
28. Notices. Notice required or permitted by this Agreement shall be
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deemed given only upon enclosure of such notice in a adequately post-paid
envelope, deposited in a U.S. Post Office, sent certified mail - return receipt
requested, and addressed to the party to be given notification at the address to
which it has previously notified the party giving notice that notices are to be
sent or, otherwise, to the address for the party receiving notice first set
forth in this Agreement.
29. Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal laws of the state in which the printing involved is
performed.
If the above terms are satisfactory, please sign two copies of this
document and return them. It will then be an offer, subject to acceptance by an
authorized agent of Printer at any time prior to 30 days after the date first
above written. Upon acceptance, Printer will return one fully executed copy of
the Agreement to Customer; and this Agreement will be a binding contract between
Printer and Customer.
Respectfully submitted,
By:___________________________________
▇▇▇ ▇▇▇▇▇▇▇
Sales Representative
Agreed to:
ADVANSTAR COMMUNICATIONS, INC.
("Customer")
By /s/
____________________________
Title V.P. Human Resources &
Publishing Operations
_________________________
Date 9/28/95
__________________________
Accepted: This new agreement supercedes
and replaces the old agreements.
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THE ▇▇▇▇ PRESS, a division of ▇▇▇▇▇ Corporation
("Printer")
By /s/
______________________________________
Title Executive VP
___________________________________
Date 9/29/95
____________________________________
================================================================================
EXHIBIT A
PUBLICATIONS LISTING
September 5, 1995
The following publications are included under this Agreement.
Production will commence in the month/year indicated:
Physician's Management Special Edition September, 1995
PC Graphics & Video September, 1995
Hospital Formulary September, 1995
Infotext September, 1995
Neurology September, 1995
Environmental Solutions September, 1995
Landscape Management September, 1995
Geriatrics September, 1995
Pit & Quarry September, 1995
Drug & Cosmetic Industry September, 1995
American Salon September, 1995
RSI September, 1995
Relax September, 1995
America's Network September, 1995
Response TV September, 1995
American Stylist September, 1995
American Big Twin February, 1996
Dealernews February, 1996
LP Gas February, 1996
Paperboard Packaging February, 1996
Pest Control February, 1996
Applied Clinical Trials December, 1995
Biopharm November, 1995
GEO Info Systems January, 1996
GPS World January, 1996
LC GC November, 1995
Pharmaceutical Technology December, 1995
Pharmaceutical Executive January, 1996
Spectroscopy November, 1995
Managed Heathcare November, 1995
Cadalyst December, 1995
Initials: /s/
_____________________________
/s/
_____________________________
===============================================================================
[THIS PAGE ON ▇▇▇▇▇ PUBLICATIONS GROUP LETTERHEAD]
EXHIBIT B
December 20, 1994
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer and Controller
Advanstar Communications
▇▇▇ ▇. ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
I have taken the opportunity to summarize our conversation from last Friday and
to outline how Advanstar's account will be administered beginning in 1995. If
you have any question with any of the points below, please call me as soon as
possible.
1. Effective January 1, 1995, Advanstar's credit terms will be changed from
2%-10 days, Net 30 to "Cash in Advance."
2.. In consideration of cash in advance terms, ▇▇▇▇▇ will ▇▇▇▇▇ the contractual
2% manufacturing price increase.
3. Since payments are to be made in advance, the 2% early pay discount will be
reflected in Advanstar's new (1995) price schedules.
4. Payment amounts will be broken down into equal weekly payments which are to
be received every Friday beginning on December 30, 1994.
5. Initial weekly payments, which include both production and postage, have
been set at $125,000 to The ▇▇▇▇ Press and $60,000 to ▇▇▇▇▇ Printing
Company.
6. Advanstar's account will be reviewed monthly. Changes, if any, to the
weekly payments will be assessed through anticipated production and
reconciliation of payments to actual invoices. Within ▇▇▇▇▇, this will
have to be a coordinated effort with ▇▇▇ ▇▇▇▇▇▇▇-Sales Representative,
Customer Service, and the Controllers at both plants (▇▇▇▇ ▇▇▇▇▇▇▇ - The
▇▇▇▇ Press and ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ Printing Co.).
You and I will need to remain in contact as these payment amounts are
determined. I will ask both ▇▇▇▇ and ▇▇▇▇ to provide appropriate support for
their recommended payment amounts.
[THIS PAGE ON ▇▇▇▇▇ PUBLICATIONS GROUP LETTERHEAD]
Sincerely,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Group Controller
cc: ▇▇▇▇▇ Printing ▇▇▇▇▇ ▇▇▇▇▇▇ - Credit Manager ▇▇▇▇ ▇▇▇▇▇▇▇ - Controller
▇▇▇▇ Press ▇▇▇▇▇ ▇▇▇▇▇ - Credit Manager ▇▇▇▇ ▇▇▇▇▇▇▇ - Controller
▇▇▇▇▇ Publ. Group ▇▇▇ ▇▇▇▇▇▇▇ - Sales Rep. ▇▇▇ ▇▇▇▇▇▇▇ - Mgr. Contracts &
C-1041-R2
PROPOSAL FOR
ADVANSTAR COMMUNICATIONS, INC.
SEPTEMBER 5, 1995
1. Subject of Agreement. Advanstar Communications, Inc. ("Customer"), a
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New York corporation located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇ Printing Company ("Printer), a division of ▇▇▇▇▇ Corporation, located
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ agree that Printer shall print
all of Customer's requirements for the publication(s) identified as (Refer to
Exhibit A attached), commencing September 5, 1995 and continuing through
December 31, 2000. Printer shall perform those printing services in accordance
with the specifications and within the time(s) set forth, respectively, in the
attached Specifications Schedule, and the Production Schedule either attached or
(if not attached) established by mutual agreement of the parties conforming to
Section 25 below. This Agreement shall also apply to other, future work
performed by Printer for Customer, as provided in Section 22 below. Upon
expiration of the initial term, this Agreement shall be renewed for one (1)
year, unless either party gives written notice to the other of its intent to
terminate this Agreement not less than ninety (90) days prior to the expiration
date of December 31, 2000.
2. Prices. Prices for Printer's services are set forth in the attached
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Price Schedule. Those prices are based upon (i) Printer's labor costs on the
date of this Agreement, (ii) Printer's material costs on the date of this
Agreement and (iii) Customer's specifications set forth in the Specifications
Schedule. Any volume or trade discounts earned with respect to materials or
services utilized by Printer or for which Printer contracts on behalf of
Customer in connection with Printer's performance under this Agreement shall be
and remain the property of the Printer.
Customer recognizes that Printer's prices are exclusive of: (a)
transportation charges, (b) charges for storage of paper and other materials
furnished by Customer and of finished goods produced by Printer and (c) any
manufacturer's, retailer's occupation, use, sales, excise, value added or other
tax, or any charge of any nature whatsoever imposed by any governmental
authority. Any such tax or charge shall be the responsibility of the Customer;
charges for storage and transportation by Printer shall be based on Printer's
standard rates in effect from time to time.
3. Price Adjustments.
-----------------
A. Except as provided in Section 2 above and in subsections 3B and 3C below,
prices in this Agreement shall remain firm through December 31, 1996.
Thereafter, prices shall be adjusted to proportionately reflect any increases or
decreases, since the effective date of this Agreement, in labor costs, including
state or federal social security taxes or other taxes related to labor
utilization. However, in no such case shall the annual increase exceed two (2%)
percent.
-2-
B. Printer will, on or before the effective date of any price change under this
Agreement, provide to Customer notice and an explanation of such change,
together with appropriate supporting data.
4. Payment Terms.
-------------
A. Net payment shall be made in advance of the production date as outlined in
Exhibit B attached. Printer reserves the right to amend and/or adjust weekly
payment amounts as necessary.
B. Printer shall invoice Customer as follows:
(1) Preparatory work, plates, presswork, binding, cartons, pallets, services
preparatory for mailing finished work, freight and shipping charges, and
paper furnished by Printer - upon completion of Printer's services with
respect to each shipment of work under this Agreement; provided, however,
that if the Customer delays the performance of Printer's services as
established in the Production Schedule, printer may invoice for services
rendered to date.
(2) Storage of paper and other materials furnished by Customer and of
finished work produced by Printer - as provided for in Sections 14 and 15.
5. Production Schedule. Each of the parties will use its best efforts to
-------------------
comply with the Production Schedule at all times. Customer's delay in
furnishing and/or returning all paper, copy, specifications, artwork, proofs,
copies or other material in accordance with the Production Schedule may result
in an extension of scheduled delivery date(s) and/or additional charges to
Customer for accelerated production at Printer's standard overtime rates then in
effect. Any additional charges incurred by Printer on behalf of Customer, must
be pre-approved by Customer in advance of the charges incurred.
6. Proofs. Printer shall furnish Customer the proofs and materials set
------
forth in the Specifications Schedule; and Customer shall return to Printer one
set of proofs for each completed page indicating any and all changes (editorial
and art). Printer shall not be liable for errors or subsequent corrective costs
for work completed pursuant to Customer's approval or for errors due to
Customer's failure to order proofs, refusal to accept proofs, failure to return
proofs marked with changes, or Customer's instructions to proceed without
submission of proofs.
7. Materials Furnished by Customer. Paper stock, film (negatives and
-------------------------------
positives), and other materials furnished by Customer shall be properly packed,
free from dirt, grit, torn sheets, bad splices, etc. and shall comply with the
specifications set forth in the Specifications Schedule, and within S W O P
standards. Additional costs due to delays, impaired production or the necessity
to repair or replace such materials because of Customer's failure to meet such
standards shall be charged to Customer at Printer's standard rates then in
effect. Semi-finished materials or covers furnished by Customer shall include
manufacturing waste allowances Printer deems adequate and shall be adjusted to
Printer's count.
-3-
Printer shall not be liable for the fitness of any materials furnished by
Customer unless directed by Customer, at additional cost to Customer, to make
corrections, repairs, or substitutions Printer deems necessary. In no event
does Printer assume responsibility for color fidelity of finished goods made
from film furnished by Customer, unless proofed by Customer to Printer's
requirements.
8. Responsibility for Content; Right to Rescind. Customer warrants that
--------------------------------------------
any matter it furnishes for printing pursuant to this Agreement does not
infringe any copyright or trademark, is not libelous, and does not otherwise
violate any law or infringe the rights of any third party. Customer agrees to
indemnify and hold Printer harmless against all losses, claims, damages,
liabilities and expenses, including Printer's attorneys' fees, which Printer may
incur as the result of any claims of such violation or infringement. Printer
shall have the right, without liability of any kind to Customer, to refuse to
print any publication containing material that, in Printer's good faith
judgment, may give rise to such claims.
9. Business Reply Mail. Customer shall be responsible for complying with
-------------------
all postal service requirements concerning business reply mail; and Printer
shall not be liable to Customer for any damages or claims whatsoever in the
event that business reply mail is rejected by the postal service.
10. Quantity Variation. Variations in quantity of 0% over and 0% under
------------------
quantities ordered shall constitute acceptable delivery; and the excess or
deficiency shall be charged or credited at the "additional thousands" rate set
forth in the Price Schedule.
11. Warranty. Printer warrants that its services shall be performed
--------
according to the terms of this Agreement and S W O P standards acceptable in the
printing industry. However, due to differences in equipment, paper, inks, and
other conditions between the color proofing and production pressroom operations,
a reasonable variation in color between color proofs and the completed job, and
a reasonable variation on press, may exist. Work containing such variations
shall be considered in conformity with this warranty. Customer however,
retains, sole and absolute discretion in determining whether standards of
quality are sufficient. In the event Customer reasonably concludes performance
of Printer is inadequate, then Customer may, with 30 days written notice, remove
affected publication(s) from Printer without penalty to Customer.
12. Risk of Loss. The risk of loss of finished work shall pass to the
------------
Customer F.O.B. the facilities at which the same was printed, upon the earlier
of Printer's delivery to carrier or postal service, or delivery into storage,
regardless of whether the transport medium or storage facilities are owned
and/or operated by Printer. The risk of loss of property furnished and/or owned
by Customer shall be on the Printer while such property is at the facilities at
which the printing is to occur. Customer shall bear the risk of loss while
property is in transit to and from Printer's facilities.
13. Passage of Title. Title to finished goods shall pass to Customer upon
----------------
the earlier of Printer's delivery to carrier or postal service, or delivery into
storage, regardless of whether the
-4-
transport medium or storage facilities are owned and/or operated by Printer.
Artwork, drawings, sketches, dummies, film positives, negatives, and separations
furnished by Printer shall become the property of Customer upon completion of
printing and payment therefor; provided, however, that if such items are
furnished by Printer by subcontracting the production thereof, then title
thereto shall pass to Customer upon shipment to Printer. All printing plates
shall be and remain the property of Printer.
14. Storage. Customer's materials which are in film form shall be stored
-------
without charge for a period of 12 months from the time of last use and
thereafter destroyed. If Customer's materials other than film are not shipped
within 24 hours after notification to Customer that they are ready to be
shipped, for any reason beyond Printer's reasonable control, including but not
limited to Printer's retention of such materials pursuant to Section 18 below,
Printer may store such materials at Customer's risk in a warehouse or at the
facilities at which printing occurred, and Customer shall pay all resulting
handling, transportation and storage charges as invoiced by Printer.
15. Customer Furnished Paper. If Customer furnishes paper, Printer agrees
------------------------
to provide storage, at no cost to Customer, for up to two (2) months supply.
Inventory levels exceeding two (2) months supply are subject to storage charges
which are included in the Price Schedule.
16. Contingencies. Printer shall not be liable for any delay or failure
-------------
to perform under this Agreement if such delay or failure to perform arises out
of causes beyond its reasonable control, including but not limited to labor
trouble, fires, severe weather and other acts of God, accidents, governmental
acts and regulations, inability to obtain materials or carrier space or
equipment, or delays of suppliers or carriers. Printer shall give notice to
Customer of any such condition within a reasonable time after it arises.
If Printer's operations are suspended for any of the above causes, Printer
shall have the right to have the work performed by one of its subsidiaries on
the same terms and conditions set forth in this Agreement.
If Printer is unable for any reason to have the work done by one of its
subsidiaries, Customer shall have the right to have the services covered by this
Agreement performed elsewhere, and to remove from Printer's plant any and all
completed work, proofs, film, paper and other material and uncompleted work only
upon payment to Printer for all services rendered and materials furnished or
ordered by Printer prior to the date of suspension of operations.
The parties agree that when Printer resumes operation, upon 30 days'
written notice to Customer, production shall resume and continue at Printer's
facilities under the terms and conditions of this Agreement.
17. Claims. All claims for defective or damaged product or for shortages
------
must be made by Customer in writing fully setting forth the nature of the
alleged defect, damage or shortage, within 30 days after Customer's receipt
thereof. Customer's failure to so notify Printer shall constitute irrevocable
acceptance of the product and a waiver of any claim of defect,
-5-
damage or shortage. Claims for damage or loss in transit must be made by
Customer directly against the carrier.
18. Limitation of Remedies. Customer's sole and exclusive remedy for
---------------------
Printer's negligence or other tort, breach of warrant or contract or any other
claim arising out of or connected with to that portion of the work which is
nonconforming or, at Printer's option, printing of a correction in subsequent
work, if applicable.
IN NO EVENT SHALL PRINTER BE LIABLE FOR ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF
CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ON ANY
STRICT LIABILITY THEORY.
19. Printer's Security Interest and Rights Upon Customer's Default. If
--------------------------------------------------------------
any amount due Printer from Customer shall remain unpaid at the due date, or if
Customer defaults in the performance of any other covenant or condition of this
Agreement or any other agreement with Printer, Printer shall have the right to
terminate its obligations under this Agreement, to declare immediately due and
payable all obligations of the Customer for the work theretofore furnished by
the Printer under this Agreement, to retain possession of any product or
materials owned by Customer (including but not limited to work-in-process and
undelivered work) pending payment in full of all such obligations, to change
credit terms with respect to any further work furnished by Printer, and/or to
suspend or discontinue any further performance for Customer until overdue
amounts are paid in full and until cash or security satisfactory to Printer
covering further work, as may be require by Printer, is deposited in advance
with Printer. These rights of Printer shall be in addition to and not in
substitution for any other rights of Printer; and suspension or discontinuance
of work by Printer pursuant to this Section shall not in any way prejudice any
claim or right of action which Printer may have by reason of any breach of this
Agreement or any other agreement by Customer.
20. Right to Assurance. Whenever either party in good faith has reason to
------------------
question the ability or intent of the other party to perform, the party having
such question may demand in writing adequate assurance from the other party of
its ability or intent to perform, and may suspend performance under this
Agreement pending such assurance. In the event that such a demand is made and
such assurance is not given within a reasonable time, the party having made such
demand may treat that failure as an anticipatory repudiation of this Agreement
and exercise any appropriate remedy for repudiation.
21. Bankruptcy. If either party makes an assignment for the benefit of
----------
creditors, or admits in writing its failure or inability to pay its debts as
they become due, or becomes the subject of an "order for relief" within the
meaning of that phrase in the U.S. Bankruptcy Code, or applies for or consents
to the appointment of a receiver for any of its property, the other party may
terminate this Agreement at any time, effective immediately upon notice. Such
termination
-6-
shall not relieve either party from any obligations accrued under this Agreement
up to the date of notice of termination.
22. Waivers. No waiver by either party of any default by the other in the
-------
performance of or compliance with any provision, condition or requirement in
this Agreement shall be deemed to be a waiver of, or in any manner release such
other party from compliance with any such provision, condition or requirement in
the future; nor shall any delay or omission of either party to exercise any
right under this Agreement or otherwise in law in any manner impair the exercise
of any such right thereafter.
23. Other Work. In the event that, at any time during the term of this
----------
Agreement, Customer requests that Printer perform any work not related to the
publication(s) identified in Section 1 above, and Printer agrees to do so, all
rights and liabilities of Customer and Printer arising in connection with such
other work (as well as the rights and liabilities of the parties in connection
with Printer's work on the publication(s) identified in Section 1 above) shall
be governed exclusively by the terms and conditions contained in this Agreement;
provided, however, that, with respect to such other work, the Specifications,
Price and Production Schedules to this Agreement shall be superseded by
specifications, scheduling terms, quantities and prices set forth in accepted
orders, to the extent that the same are inconsistent with such Schedules. No
additional or different terms contained in any of Customer's forms or other
correspondence shall be of any force or effect.
24. Entire Agreement. The attached Specifications Schedule and Price
----------------
Schedule and the Production Schedule either attached or established in
accordance with this Agreement form a part of this Agreement. This Agreement,
together with such Schedules, is intended by the parties as the final and
exclusive expression of their agreement, superseding all prior oral or written
agreements, understandings, negotiations, representations and correspondence
between the parties, on the subject of this Agreement. There are no conditions
to this Agreement not expressed in this Agreement.
25. Term and Termination. This Agreement shall take effect September 5,
--------------------
1995 and shall remain in effect through December 31, 2000. Either party may
terminate this Agreement at any time upon written notice to the other, but only
by specific reference to this Agreement (by title and date) in such notice. Any
such termination shall have no effect upon the respective rights and liabilities
of the parties in connection with any work previously performed under this
Agreement or in process on the date of termination, or in connection with any
accepted order under this Agreement, including but not limited to the commitment
set forth in Section 1 above.
26. Amendment. Except as provided in Sections 2 and 3, this Agreement,
---------
including the Schedules made a part of this Agreement, may be amended or
supplemented only by a writing signed on behalf of both of the parties by their
duly authorized representatives. In the event that the Production Schedule is
not attached, mutual agreement to a Production Schedule shall be established
only by a writing so signed.
-7-
27. Assignment. Neither party shall assign any of its rights under this
----------
Agreement without the prior written consent of the other party. Subject to any
required consent, this Agreement shall inure to the benefit of and shall bind
the successors and assigns of the parties to this Agreement.
28. Notices. Notice required or permitted by this Agreement shall be
-------
deemed given only upon enclosure of such notice in a adequately post-paid
envelope, deposited in a U.S. Post Office, sent certified mail - return receipt
requested, and addressed to the party to be given notification at the address to
which it has previously notified the party giving notice that notices are to be
sent or, otherwise, to the address for the party receiving notice first set
forth in this Agreement.
29. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the state in which the printing involved is
performed.
If the above terms are satisfactory, please sign two copies of this
document and return them. It will then be an offer, subject to acceptance by an
authorized agent of Printer at any time prior to 30 days after the date first
above written. Upon acceptance, Printer will return one fully executed copy of
the Agreement to Customer; and this Agreement will be a binding contract between
Printer and Customer.
Respectfully submitted,
By:____________________________________
▇▇▇ ▇▇▇▇▇▇▇
Sales Representative
Agreed to:
ADVANSTAR COMMUNICATIONS, INC.
("Customer")
/s/
By____________________________
V.P. Human Resource &
Publishing Operations
Title_________________________
9/28/95
Date__________________________
Accepted: This new agreement supercedes
and replaces the old agreement
-8-
▇▇▇▇▇ PRINTING COMPANY, a division of ▇▇▇▇▇ Corporation
("Printer")
By /s/
---------------------------
Title Executive V.P.
------------------------
Date 9/28/95
-------------------------
================================================================================
EXHIBIT A
PUBLICATIONS LISTING
SEPTEMBER 5, 1995
The following publications are included under this Agreement.
Production will commence in the month/year indicated:
Hotel Motel Management September, 1995
Art Business News September, 1995
DVM September, 1995
Hearing Instruments September, 1995
Ophthalmology September, 1995
DVM New Product Review September, 1995
Afermarket Business September, 1995
AIDN September, 1995
AIDN - Asia September, 1995
AIDN - Latin September, 1995
America's Network Product Tab September, 1995
ITS Tab September, 1995
Hospitality Product News September, 1995
Environmental Solutions Tab September, 1995
Dermatology Times January, 1996
Urology Times January, 1996
Initials ________________________________
________________________________
================================================================================
EXHIBIT B
December 20, 1994
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer and Controller
Advanstar Communications
▇▇▇ ▇. ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
I have taken the opportunity to summarize our conversation from last- Friday and
to outline how Advanstar's account will be administered beginning in 1995. If
you have any question with an of the points below, please call me as soon as
possible.
1. Effective January 1, 1995, Advanstar's credit terms will be changed from
2%-10 days, Net 30 to "Cash in Advance".
2.. In consideration of cash in advance terms, ▇▇▇▇▇ will ▇▇▇▇▇ the contractual
2% manufacturing price increase.
3. Since payments are to be made in advance, the 2% early pay discount will be
reflected in Advanstar's new (1995) price schedules.
4. Payment amounts will be broken down into equal weekly payments which are to
be received every Friday beginning on December 30, 1994.
5. Initial weekly payments, which include both production and postage, have
been set at $125,000 tone ▇▇▇▇ Press and $60,000 to ▇▇▇▇▇ Printing Company.
6. Advanstar's account will be reviewed monthly. Changes, if any, to the
weekly payment will be assessed through anticipated production and
reconciliation of payments to actual invoices. Within ▇▇▇▇▇, this will
have to be a coordinated effort with ▇▇▇ ▇▇▇▇▇▇▇ Sales Representative,
Customer Service, and the Controllers at both plants (▇▇▇▇ ▇▇▇▇▇▇▇ - The
▇▇▇▇ Press and ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ Printing Co.).
You and I will need to remain in contact as these payment amounts are
determined. I will ask both ▇▇▇▇ and ▇▇▇▇ to provide appropriate support for
their recommended payment amounts.
Sincerely,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Group Controller
cc: ▇▇▇▇▇ Printing ▇▇▇▇▇ ▇▇▇▇▇▇ - Credit Manager Phil Suptich - Controller
▇▇▇▇ Press ▇▇▇▇▇ ▇▇▇▇▇ - Credit Manager ▇▇▇▇ ▇▇▇▇▇▇▇ - Controller
▇▇▇▇▇ Publ. Group ▇▇▇ ▇▇▇▇▇▇▇ - Sales Rep. ▇▇▇ ▇▇▇▇▇▇▇ - Mgr. Contracts &