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EXHIBIT 10.10
CONFIDENTIAL
WOOD PULP SUPPLY AGREEMENT
May 1, 1996
The parties to this Wood Pulp Supply Agreement (the "Agreement") are
GEORGIA-PACIFIC CORPORATION, a Georgia corporation ("Seller"), with a principal
address of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and INBRAND
CORPORATION, a Georgia corporation ("Buyer"), with a principal address of ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Seller desires to sell to Buyer and Buyer desires to purchase from Seller
fluff pulp ("Pulp") for Buyer's business upon the terms and conditions
hereinafter set forth. The parties intend to enter into a long-term agreement
for the sale and purchase of Pulp, on a firm "take or pay" basis, with
dependable pricing.
Now, therefore, for and in consideration of $10.00 and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller hereby agree as follows:
1. Term
a. The term of this Agreement shall be from May 1, 1996 to and
including January 31, 2003; provided, however, that this Agreement shall be
extended in accordance with and to the extent provided in Exhibit A hereto with
regard to Option Tonnage, if Option 2 thereof is elected by Buyer. Except where
otherwise provided, the monthly and quarterly periods applicable to this
Agreement shall be in accordance with Seller's fiscal periods.
b. For purposes of this Agreement, the "year of the Agreement"
shall mean the period of May 1, 1996 to January 31, 1997 (also referred to as
"first year of the Agreement"), and each subsequent February 1 to January 31
period, the last of such periods being the period of February 1, 2002 to January
31, 2003.
2. Purchase and Sale Commitment
Subject to the terms and conditions stated herein, Buyer shall take or pay
for [confidential] Air Dried Metric Tons (each such Ton, an "ADMT") of Pulp per
month ("Basic Tonnage") at the price specified in Section 4 of this Agreement
("Base Price") and
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as adjusted in accordance with Section 5. Buyer shall also purchase additional
Pulp under the terms and conditions in Exhibit A, which is incorporated herein
by this reference ("Additional Tonnage"), and Option Tonnage on the terms set
forth therein.
3. Specifications
The Pulp to be sold and purchased hereunder shall be of prime quality and
shall conform to the typical specifications as and to the extent set out in
Exhibit B attached hereto and made a part of this Agreement. SELLER MAKES NO
FURTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. SPECIFICALLY EXCLUDED ARE THE
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND THE IMPLIED WARRANTY
OF MERCHANTABILITY.
4. Base Price
a. The Base Price for all Pulp (excluding the Additional Pulp Tons
described in Exhibit A, Item # 1, but including the Option Tonnage described in
Exhibit A, Item # 2), shall be $[confidential]/ADMT for untreated Pulp - and for
the [confidential], location only, $[confidential]/ADMT ($[confidential] +
$[confidential] upcharge) for treated Pulp - through [confidential], plus the
appropriate Distribution Cost Adjustment for shipment to the following locations
("Distribution Cost Adjustment"):
[confidential] (Port of [confidential]) + $[confidential]/ADMT
[confidential] (Port of [confidential]) + $[confidential]/ADMT
[confidential] + $[confidential]/ADMT
[confidential] + $[confidential]/ADMT
[confidential] + $[confidential]/ADMT
[confidential] + $[confidential]/ADMT
b. During the period from [confidential] through [confidential] only,
Buyer, at its option, shall be entitled to one of the following distribution
cost reductions (based on the estimated Buyer's purchases from Seller of
[confidential] ADMT of Pulp per month):
(1) Seller's Waiver of the Distribution Cost Adjustment for all
locations in [confidential] on the first [confidential] ADMT of Basic
(and Optional, if any) Tonnage; or
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(2) Seller's Reduction of the Invoice Price (which includes the Base
Price plus the Distribution Cost Adjustment) to all locations in an
amount of $[confidential]/month for Basic (and Optional, if any) Tonnage;
provided that regardless of which option above is selected, the invoice price
for any amount of Basic Tonnage for [confidential] locations shall not be less
than $[confidential]/ADMT during the first year of the Agreement.
5. Price Adjustments
a. The Base Price established in paragraph 4 above, shall be
subject to an annual adjustment beginning [confidential] and each [confidential]
thereafter during the term of this Agreement, as provided in Section 5(h). The
base year cost components to be used to calculate the annual adjustment are
established for the first year of the Agreement as follows:
Wood Cost Component $[confidential]
Other Costs Component $[confidential]
Depreciation Cost Component $[confidential]
Distribution Cost Adjustment (as set out in
paragraph 4 above)
b. The Wood Cost Component shall be adjusted annually based on the
actual average monthly wood cost changes experienced at Seller's [confidential],
facility in the period [confidential] through [confidential] for the adjustment
of Base Price to take place on [confidential], and in the preceding calendar
year ([confidential] through [confidential]) for the adjustment of Base Price on
[confidential] of each subsequent year during the term of this Agreement.
c. The Depreciation Cost Component shall remain constant
throughout the duration of the Agreement.
d. The Other Costs Component shall be adjusted annually based on
the average monthly percentage change in the Producer Price Index, as published
in Economic Indicators (Prices; Intermediate Materials; Other) by the Council of
Economic Advisors to the Joint Economic Committee of the U. S. House of
Representatives, for the preceding eleven months ([confidential] through
[confidential]) in [confidential] for the adjustment of
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Base Price to take place on [confidential] and for the preceding calendar year
([confidential] through [confidential]) for the adjustment of Base Price on
[confidential] of each subsequent year during the term of this Agreement.
e. The [confidential] Wood Cost Component set forth in paragraph "a"
of this Section for the first year of the Agreement is derived from the year-end
[confidential] profit & loss statement ("P&L") of Seller's [confidential] mill,
a copy of which was provided to Buyer by Seller, using the component "Wood" in
Direct Costs. The Wood Costs Component for each subsequent year of the Agreement
shall be derived in the same manner from the year-end P&L for the calendar year
immediately preceding such year of the Agreement. Buyer shall have the right to
review, and Seller agrees to provide to Buyer, a copy of the year-end P&L to
verify the "Wood" amount used in calculating the Adjusted Base Pulp Price for
any year of the Agreement, upon 14-day prior written notice to the Seller.
f. The Distribution Cost Adjustment shall be adjusted annually to
reflect the actual average quarterly export and ocean freight costs incurred by
the [confidential] mill to the port locations in question during the calendar
year preceding the year of the Agreement. Buyer shall have the right to review,
and Seller agrees to provide to Buyer, documents supporting the annual
adjustment, upon 30-day prior written notice to the Seller.
g. Commencing with the second year of the Agreement, a cost deflator
adjustment shall be made in each year of the Agreement equal to minus
[confidential] (minus [confidential] percent) annually.
h. Formula for Adjusted Base Pulp Price: The Base Price in Section 4
shall be adjusted at the beginning of the second year of the Agreement and of
each subsequent year of the Agreement in the following manner:
An amount equal to the sum of
i. the difference between the Wood Cost Component for the year
of the Agreement in question and the Wood Cost Component for the previous
year of the Agreement; and
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ii. the Other Costs Component from the previous year of the
Agreement multiplied by the applicable Producer Price Index, defined in
paragraph 5.d. of this Section from the previous year of the Agreement,
shall be added to the Base Price for the previous year of the Agreement and such
aggregate amount shall be multiplied by [confidential] plus the cost deflator to
arrive at the Adjusted Base Pulp Price for the year of the Agreement in
question.
i. The Adjusted Pulp Price shall become the Base Price for the year
of the Agreement in question and it shall be readjusted in accordance with the
aforesaid formula for all subsequent years of the Agreement.
j. Attached hereto and incorporated herein is Exhibit C that
illustrates the operation of the pricing scheme. Exhibit C is incorporated for
purposes of reference and illustration only. In the event of any conflict
between Exhibit C and the other terms of this Agreement, the terms of this
Agreement shall control.
k. Absent manifest error, Seller's determination of the price
adjustments in Section 5 shall be conclusive and binding on the parties.
6. Payment Terms
a. The terms of payment are [confidential]. These credit terms
shall apply during the term of the Agreement; however, Seller retains the right
to cancel these terms and demand terms less favorable to the Buyer, including
but no less favorable than "cash in advance," if at any time during the term of
this Agreement Seller determines that a material adverse change in Buyer's
financial position has occurred. Seller shall have the right to continue
demanding such less favorable terms until Buyer posts an acceptable bond
securing full payment in favor of Seller, or until the material adverse change
condition has been eliminated for a period of two consecutive fiscal quarters of
Buyer. In addition, all past due payments must be corrected by Buyer within
thirty (30) days of written notification from Seller, and if at any time during
the term of this Agreement Buyer fails to make the required correction Seller
may require Buyer to pay cash in advance for all future shipments until all past
due balances are eliminated. Seller may declare the Buyer to be in breach of
this Agreement if Buyer
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rejects any such revised payment terms advised to Buyer by Seller as a result of
the material adverse change or if Buyer fails to correct a past due payment
within the time period set forth in this Section 6.a.
b. "A material adverse change," for purposes of this provision,
shall be deemed to have occurred if one or more of the following events occur
and continue for a period of two consecutive fiscal quarters of Buyer:
i. Buyer's cash flow before working capital changes
annualized over the most recent four fiscal quarters of Buyer is less
than current portion of long term debt;
ii. Buyer's cash flow from operations annualized over the most
recent four fiscal quarters of Buyer is negative;
iii. Times interest earned is less than 1.5. "Times interest
earned" is defined for purposes of this provision as net income before
extraordinary items, interest and taxes divided by interest charges
annualized over the most recent four fiscal quarters of Buyer.
c. Buyer shall provide to Seller current financial information on an
ongoing basis in order to provide Seller with access to the information
necessary to make the determination of material adverse change, if any, for
purposes of this Section. Buyer agrees to provide to Seller 10-Q and 10-K forms
upon 14-day prior written notice to Buyer.
7. Confidentiality
a. Each party shall consider all information furnished by the
other party hereto which is designated as "confidential" to be confidential and
shall not disclose any such information to any other person, unless required by
law or to its professional advisors bound by a duty of confidentiality, or use
such information itself for any purpose other than performance of this
Agreement, unless it first obtains written permission from the party whose
confidential information is to be disclosed. Neither party shall advertise or
publicize any information relating to the Agreement, unless required by law,
without the other party's prior written consent. Seller and Buyer agree that the
existence of the Agreement itself and all terms thereof are confidential, and
that
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they shall not be disclosed to third parties, except to professional advisors,
who are bound by a duty of confidentiality, or where limited disclosure is
dictated by normal business needs; provided, however, that Seller and Buyer
agree that the prices, price adjustment formulae, terms of sale and Seller's
costs stated in this Agreement as well as any confidential information provided
by Seller to Buyer in the course of negotiation and implementation of this
Agreement (including, but not limited to, Seller's P&Ls) are per se
"confidential information" within the purview of paragraph 7 of this Agreement
and that their disclosure by the disclosing party requires written consent of
the other party under all circumstances. A party may disclose confidential
information of the other party to a third party only after such third party
entered into a confidential disclosure agreement that was reviewed and approved
by the party whose confidential information is to be disclosed.
b. The restrictions and obligations of nondisclosure and non-use
shall apply to confidential information in accordance with this Section 7 except
as to confidential information which (i) is in the public domain at the time of
disclosure by the disclosing party hereunder or which later enters the public
domain through no fault of the party receiving the information; (ii) is in the
possession of the recipient at the time of disclosure other than by virtue of a
breach of any person's confidentiality obligations; (iii) becomes available to
the recipient from a third party who is under no obligation to the party
disclosing the information; (iv) is independently developed by representatives
of recipient who did not have access to confidential information provided
pursuant to this Agreement; (v) a party is obligated to produce under order of a
court of competent jurisdiction, in which case the party under such order shall
give written notice of the same to the other party at least fifteen (15) days
prior to the date of compliance with such order (unless that party has less than
fifteen (15) days notice itself, in which case said party shall give the other
party as much notice as is practicable under the circumstances); provided,
however, that when a party has notice of the pendency of any action which may
result in a court order to produce such Confidential Information, said party
agrees to notify the other party of the facts pertaining to any such action as
soon as practicable under the circumstances in order to give the other party an
opportunity to protect its interests; or (vi) a party is obligated to disclose
or report to the U.S. Securities Exchange Commission or any other U.S. or
foreign government agency acting in its regulatory capacity;
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provided that the party disclosing confidential information will use its best
endeavors to obtain assurances from the relevant agency that the agency will,
except to the extent required by law, maintain absolute secrecy and
confidentiality of any confidential information disclosed in accordance with
this Section 7 and that the party disclosing confidential information will
provide the other party with an opportunity to review and comment on the manner
in which the confidential information shall be redacted for purposes of
placement on public file of the agency in question for purposes of
non-confidential disclosure to third parties that are not entitled to the access
to the confidential information under the rules of the government agency
pertaining to handling of confidential information submitted to such an agency.
c. The obligations of confidentiality set forth in this Section 7
shall continue (a) for trade secrets of Seller, as defined by the Georgia Trade
Secrets Act of 1990, as it may be amended from time to time, for so long as such
confidential information remains trade secrets of Seller, and (b) for other
confidential information, for five (5) years after the expiration of this
Agreement or any renewal hereof or the expiration of any agreement to which the
parties agree in writing and which replaces this Agreement.
8. Assignments
a. Neither party may assign this Agreement without the written
consent of the other party; provided, however, that such consent shall not be
unreasonably withheld; provided further, that either party may grant a security
interest in or assign as security its rights under this Agreement to any lender
to such party. Subject to the foregoing, this Agreement shall inure to the
benefit of the parties and their permitted successors and assigns hereunder.
b. Each party agrees that, in the event of any merger,
consolidation, any sale of its shares, any sale of all or substantially all of
its assets, or any lease or other transaction having an effect similar to any of
the foregoing involving such party (the "Affected Party"), (i) the Affected
Party shall ensure that the successor entity, purchaser, lessee or other such
acquiring entity, as the case may be (the "Successor Entity") shall assume this
Agreement in the place of the Affected Party; (ii) the obligations of such
Affected Party under this Agreement shall be assumed and performed by such
Successor Entity in accordance with
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the terms hereof; and (iii) the Affected Entity and the Successor Entity shall
(and the Affected Entity shall ensure that the Successor Entity shall) execute
and deliver such agreements and documentation as may be reasonably requested by
the other party hereto to effectuate the terms of this Section 8(b), including
without limitation any amendment or supplement to this Agreement.
c. Without prejudice to any other rights of termination provided
hereunder or by law, either party may terminate this Agreement if the other
party hereto breaches any of its obligations under this Section 8. In such
event, the non-breaching party shall have available to it all rights and
remedies available under this Agreement and applicable law, including without
limitation the right to obtain damages from the breaching party in accordance
with Section 9 hereof.
9. Liquidated Damages
a. It is expressly agreed that if either of the parties to this
Agreement fails to comply with any of its obligations under Sections 2, 3, 4, 5
or 6 or under Exhibit A of this Agreement for any month during the term of this
Agreement, except as permitted in Sections 10 and 11), that party shall be in
material breach of this whole Agreement. In that event, the parties further
agree (i) that the injury caused by this material breach will be difficult or
impossible to estimate accurately, (ii) that the breaching party will therefore
be liable to the non-breaching party for liquidated damages under the formulae
and principles set forth below this Section 9, (iii) that this Section 9 is
intended to provide solely for liquidated damages and not a penalty, and (iv)
that these agreed to liquidated damages constitute a reasonable pre-estimate of
the probable loss to the nonbreaching party for any such material breach of the
Agreement.
b. It is expressly agreed that if either of the parties to this
Agreement fails to comply with any of its obligations under Sections 2, 3, 4, 5
or 6 or under Exhibit A of this Agreement the following provisions shall be
employed to calculate the damages payable to the other party as liquidated
damages for the remainder of the term of this Agreement and that such liquidated
damages shall be calculated for every remaining quarter of this Agreement and
payment of such liquidated damages made within twenty-one (21) days from the
last day of each quarter, with no offset to Seller's payment for any previous
quarter in which the residual value was negative if Seller is the breaching
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party and with no offset to Buyer's payment for any previous quarter in which
the residual value was positive if Buyer is the breaching party:
Option I. The residual quarterly contract basis as
defined below shall be calculated at the end of each
quarter of the remaining term of the Agreement. If the
residual quarterly contract basis is positive, then,
if Seller is the breaching party, Seller shall pay
Buyer the residual quarterly contract basis. If the
residual quarterly contract basis is negative, then,
if Buyer is the breaching party, Buyer shall pay
Seller the residual quarterly contract basis.
The residual quarterly contract basis is determined by
subtracting the then prevailing Base Price from the
average of the published RISI and Pulp & Paper Week
Fluff Pulp price for the quarter, multiplied by the
quarterly contract tonnage.
The residual quarterly contract basis shall be
calculated and paid by the breaching party for
each successive quarter during the remaining term of
the Agreement.
Option II. Upon mutual agreement of the parties, the
Agreement may be terminated at any time after an
initial breach or default occurs, on and subject to
payment of a settlement amount under the Agreement,
which shall be a single lump sum payment mutually
agreed to by the parties. If a mutual settlement
agreement is not reached within 30 days of the notice
of breach from one party to the other, then the amount
calculated under Option I shall be paid by the party
obligated to pay under Option I.
c. Attached hereto and incorporated herein is Exhibit D that
illustrates the operation of the liquidated damages scheme. Exhibit D is
incorporated for purposes of reference and illustration only. In the event of
any conflict between Exhibit D
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and the other terms of this Agreement, the terms of this Agreement shall
control.
d. Liquidated damages shall only apply to, and shall be calculated
only on the basis of, the Basic Tonnage and the Option Tonnage, if the latter is
exercised.
e. The breaching party shall not be entitled to receive liquidated
damages.
10. Reliefs (Force Majeure; Governmental or Judicial Action)
a. The following shall be considered as cases of relief, granting
the Buyer or the Seller (i) the right to terminate the contract without
liability if they intervene after the effective date of the Agreement (or when
they have occurred before the effective date, if their effects were not clearly
foreseeable before that date) and they permanently prevent, hinder or delay the
Buyer's acceptance of the Pulp or its production of the goods for which the Pulp
is destined or the Seller's sale, production or delivery by agreed means of
goods (ii) or the right to suspend performance under the Agreement without
liability in accordance with Sections 10(d) and 10(e) thereunder if the said
prevention, hindrance or delay is temporary - viz.: war; war risk; insurrection;
blockade; requisition; embargo; calling up of personnel for military service;
export or import prohibitions or restrictions; restrictions in the use of power;
labor conflicts; water shortage; fire; flood; storm; obstruction of railways;
obstruction of navigation by ice at port of shipment; loss or detention at sea;
non delivery, fault or delayed delivery by the Seller's suppliers of raw
material and other commodities for the production; any event of force majeure
howsoever defined in any supply contract with respect to any direct or indirect
inputs for production of Pulp under which Seller is a buyer; and any other
circumstances beyond the control of parties.
b. The following shall also be considered as cases of relief with
the consequences provided in this Section 10 if they arise and have the effect
specified in Sections 10(a)(i) or (ii) above after the effective date of the
Agreement: regulation, ruling, judgment, order, injunction, decree (including a
consent decree), failure to grant a permit or withdrawal of a permit, or any
other action by a federal, national, state, provincial, or
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local government or court, in or outside the United States, that renders for
Buyer production or sales of personal absorbent products, or for Seller's
production or sales of Pulp in or from the [confidential] facility, uneconomical
and/or impracticable. For purposes of this Agreement, "personal absorbent
products" shall mean infant diapers, feminine hygiene products and adult
incontinence products.
c. The Buyer or the Seller, as the case may be, may terminate, or
suspend performance under, this Agreement on the grounds of relief upon written
notice to the other such party, stating the reasons therefor, as provided in
Section 10(e) below, neither party being responsible to the other party for any
damages resulting from such termination or suspension.
d. In the event of suspension of performance under this Section 10,
shipment shall be resumed as soon as practicable for the full quantity called
for under the Agreement. The shipments omitted during the period of suspension
may be canceled without liability by either party, and subsequent shipments
shall be resumed thereafter according to the Agreement. During the period of
suspension, Buyer may purchase replacement Pulp from other suppliers, and Seller
may sell Pulp designated for shipment to Buyer to other customers, without
liability until the condition preventing performance is removed.
e. The party wishing to claim relief by reason of any of the said
circumstances shall notify the other party in writing, by facsimile without
delay on the occurrence of the intervention and on the cessation thereof and, as
soon as practicable, notify the other party to what extent the claim will
necessitate a suspension.
11. Reliefs (Technical Obsolescence)
Buyer shall have the option to terminate the Agreement - and in the case
of such election the parties will be excused from performance under the terms
of the Agreement without liability - if one or more major competitors of the
Buyer implement a product design change (and market products incorporating such
a change) that will render use of fluff pulp as a major component of Buyer's
product non-economic and/or impracticable from performance or cost standpoint.
This provision shall not apply in the event of Buyer's own election to make a
design change resulting in the elimination or reduction of use of fluff pulp in
Buyer's products which results
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in non-performance under the Agreement and which is not directly linked to a
threat from competitors that have implemented such a design change. Furthermore,
Buyer shall be relieved of the obligation to purchase the full amount of Basic
(and Optional, if any) Tonnage if a third, unrelated party offers to sell to
Buyer, and Buyer purchases (or obtains a license to use or otherwise acquires
the right to use) from that third party, on an exclusive basis within the
personal absorbent products industry, a technology that renders Buyer's full use
of Basic (and Optional, if any) Tonnage uneconomical and/or impracticable;
provided, however, that Buyer's obligation to purchase Pulp under this Agreement
shall continue to the extent Buyer has continuing requirements to purchase Pulp.
12. Verification of Reliefs
The party claiming relief under Section 10 or Section 11 shall provide to
the other party ail information reasonably requested by the other party to
verify assertions of the case or cases of relief within a reasonable time of
such request.
13. [confidential]
a. During the Term of this Agreement, Seller agrees [confidential]
("the Producer") if, [confidential] is executed, the Producer [confidential]:
i. In the [confidential] months preceding the [confidential]
date of [confidential], more than [confidential] of the Producer's total
revenues derived from sales of [confidential] manufactured by the Producer
in [confidential].
ii. In the [confidential] months preceding the [confidential]
date of [confidential], more than $[confidential] million in Producer's
revenues derived from [confidential] manufactured by Producer
[confidential].
iii. During the first [confidential] years of this Agreement,
the [confidential] price [confidential] net of discounts and incentives is
[confidential] the prevailing [confidential].
b. In [confidential], Seller [confidential] of Pulp [confidential]
this Agreement [confidential] any facility
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[confidential] of Buyer, which facility is located in [confidential].
14. Seller's Representations and Warranties
Seller represents and warrants that:
a. It is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Georgia. Seller has all requisite
corporate power and authority to enter into and perform this Agreement.
b. This Agreement and the transaction contemplated hereby have
been authorized by Seller; and this Agreement has been duly executed and
delivered by Seller and constitutes legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with its terms, subject,
however, to applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting creditors' rights generally and except as the
enforceability thereof may be limited by general principles of equity
(regardless whether considered in a proceeding in equity or at law).
c. The execution, delivery, and performance by Seller of this
Agreement and the transactions contemplated hereby do not (i) violate or
conflict with any provision of Seller's certificate of incorporation or bylaws,
(ii) violate or constitute a default under any agreement or instrument to which
Seller is a Party or by which Seller is bound, which violation will have a
material and adverse effect on Seller's ability to perform it obligations
hereunder, (iii) violate any existing statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority applicable to
Seller, which violation will have a material and adverse effect on Seller's
ability to perform its obligations hereunder.
d. There are no judicial or administrative actions, proceedings or
investigations (including, without limitation, bankruptcy, reorganization or
insolvency actions, proceedings or investigations) pending or, to Seller's
knowledge, threatened, that (i) challenge the validity of this Agreement or the
transactions contemplated hereby, (ii) seek to restrain or prevent any action
taken or to be taken by Seller in connection with this Agreement, or (iii) if
adversely determined, would have
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a material and adverse effect upon Seller's ability to perform its obligations
hereunder.
e. Seller is not in, and has not received notice of the existence
of, any default under any transportation, purchase or other agreement material
to Seller's performance under this Agreement, nor is there existing any event or
circumstance that, to Seller's knowledge, with notice or lapse of time or both
would give rise to a default on the part of Seller thereunder.
15. Buyer's Representations and Warranties
Buyer represents and warrants that:
a. It is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Georgia. Buyer has all requisite
corporate power and authority to enter into and perform this Agreement.
b. This Agreement and the transaction contemplated hereby have
been authorized by Buyer; and this Agreement has been duly executed and
delivered by Buyer and constitutes legal, valid and binding obligations of
Buyer, enforceable against Buyer in accordance with its terms, subject, however,
to applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditors' rights generally and except as the enforceability
thereof may be limited by general principles of equity (regardless whether
considered in a proceeding in equity or at law).
c. The execution, delivery, and performance by Buyer of this
Agreement and the transactions contemplated hereby do not (i) violate or
conflict with any provision of Buyer's certificate of incorporation or bylaws,
(ii) violate or constitute a default under any agreement or instrument to which
Buyer is a Party or by which Buyer is bound, which violation will have a
material and adverse effect on Buyer's ability to perform it obligations
hereunder, (iii) violate any existing statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority applicable to
Buyer, which violation will have a material and adverse effect on Buyer's
ability to perform its obligations hereunder.
d. There are no judicial or administrative actions, proceedings or
investigations (including, without
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limitation, bankruptcy, reorganization or insolvency actions, proceedings or
investigations) pending or, to Buyer's knowledge, threatened, that (i) challenge
the validity of this Agreement or the transactions contemplated hereby, (ii)
seek to restrain or prevent any action taken or to be taken by Buyer in
connection with this Agreement, or (iii) if adversely determined, would have a
material and adverse effect upon Buyer's ability to perform its obligations
hereunder.
e. Buyer is not in, and has not received notice of the existence
of, any default under any transportation, purchase or other agreement material
to Buyer's performance under this Agreement, nor is there existing any event or
circumstance that, to Buyer's knowledge, with notice or lapse of time or both
would give rise to a default on the part of Buyer thereunder.
16. Indemnification
a. By Seller: Seller shall defend, indemnify and hold Buyer
harmless from and against (i) any and all claims, liabilities, costs or damages
(including reasonable attorneys' fees), other than consequential or similar
damages, arising out of any claims, demands or judgments for personal injury or
death or property damage arising out of or resulting from the performance or
non-performance by Seller of Seller's delivery obligation this Agreement, except
to the extent that such claims, liabilities, costs or damages are caused by the
negligence (sole or concurrent) of Buyer, its agents and employees, and (ii) any
and all claims, liabilities, costs or damages (including reasonable attorneys'
fees), other than consequential or similar damages, arising out of any claims,
demands or judgments for personal injury or death or property damage arising out
of material non-conformance of Pulp with the typical specifications set forth in
Exhibit B.
b. By Buyer: Buyer shall defend, indemnify and hold Seller
harmless from and against any and all claims, liabilities, costs or damages
(including reasonable attorney's fees), other than consequential or similar
damages, arising out of any claims, demands or judgments for personal injury or
death or property damage arising out of or resulting from the performance or
non-performance of this Agreement or caused by Buyer's products which
incorporate the Pulp, except to the extent that such claims, liabilities, costs
or damages are caused by negligence (sole or concurrent) of Seller, its agents
or employees. As to any claim made by Seller hereunder, Buyer expressly waives
any defenses,
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reduction in or release of or from liability or immunity from suit with respect
to injuries to Buyer's employees which may be extended to Seller as a result of
any payments made by Buyer to such employees or under any applicable workers'
compensation statute or similar law or judicial decision.
17. Termination
Either party may terminate this Agreement without penalty or other expense
upon the occurrence of any of the following events:
a. The filing of a bankruptcy petition against or by the other
party, which is not dismissed within 60 days of filing, for relief under any
state insolvency law or under the U.S. Federal Bankruptcy Code;
b. The appointment of a receiver, trustee or liquidator for all or
substantially all of the other party's assets; or
c. An assignment by the other party for the benefit of its
creditors.
In such event, the party entitled to terminate the Agreement under this
Section 17 may do so upon five (5) business days' written notice, and the other
party will be liable for the liquidated damages under Section 9 of this
Agreement as of the effective date of such termination.
18. Termination (Other)
a. In the event that at any time during the Term of this
Agreement, Seller or Buyer or both parties make application to any relevant
regulatory body for any clearance, exclusion or exemption from any competition
or similar law and such application is denied or issued with conditions deemed
by either party to be materially commercially burdensome, either party may
terminate this Agreement with five business days written notice to the other
party without penalty or expense. In the event any such application is made,
Seller and Buyer will cooperate to the extent permitted by law to obtain such
clearance, exclusion or exemption as quickly as possible.
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b. This Section 18 shall terminate and be of no further force and
effect
i. if such clearance, exclusion or exemption is granted
without condition, on the date of issuance thereof; or
ii. if such clearance, exclusion or exemption is granted
with conditions, on the date which is thirty (30) days after the date of
issuance thereof if this Agreement has not been terminated by either party
prior to such date;
provided that, if such conditions or clearance, exclusion or exemption requires
subsequent application therefor to be made, or either party, in its reasonable
judgment, due to such conditions, deems a subsequent application advisable
(either such case, a "Refiling Condition") (A) neither party may terminate this
Agreement pursuant to this subsection (ii) on the basis of such Refiling
Condition and (B) the terms of this Section 18 shall apply in respect of each
such subsequent application.
19. Dispute Resolution
a. Each party will advise the other party hereto in writing of any
dispute controversy or claim ("Claim") hereunder promptly upon the occurrence
thereof ("Claim Notice"). The parties will attempt in good faith to resolve any
Claim arising out of or relating to this Agreement promptly by negotiations
between representatives and senior executives of the parties who have authority
to settle the Claim. If a Claim should arise, Vice President of Seller or
Director of Fluff Pulp Sales in the Pulp, Bleached Board & Logistics Division of
Seller, and Vice President of Buyer, or their respective successors in the
positions they now hold (herein called the "Project Managers"), will meet at
least once and will attempt to resolve the Claim within fourteen days of the
date of any such Claim Notice. Either Project Manager may request the other to
so meet within fourteen days, at a mutually agreed time and place.
b. If the Claim has not been resolved within twenty days of their
first meeting, or if either Project Manager will not meet within the
fourteen-day period referred to above, the Project Managers shall refer the
Claim to senior executives, who do not have direct responsibility for
administration of this Agreement (herein called "the Senior Executives").
Thereupon, the Project
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Managers shall promptly prepare and exchange memoranda stating (a) the issues
in dispute and their respective position, summarizing the evidence and
arguments supporting their position, and the negotiations which have taken
place, and attaching relevant documents, and (b) the name and title of the
Senior Executive who will represent that party. The Senior Executives shall
meet for negotiations at a mutually agreed time and place within fourteen days
of the end of the twenty-day period referred to above, and thereafter as often
as they reasonably deem necessary to exchange relevant information and to
attempt to resolve the Claim.
c. If the Claim has not been resolved within thirty days of the
meeting of the Senior Executives, or if either party will not meet within thirty
days of the end of the twenty-day period referred to in the preceding paragraph,
the parties will attempt in good faith to resolve the Claim by mediation in
accordance with the American Arbitration Association Commercial Mediation Rules
as in effect from January 1992 (the "Rules"). There shall be one mediator chosen
by the parties. If the parties are not able to agree upon a mediator within ten
(10) days, the sole mediator shall be selected by the American Arbitration
Association in accordance with the Rules. The place of mediation shall be
Atlanta, Georgia. Each party shall bear its own legal and other costs incurred
by it, but the cost of mediation, to be specified in accordance with the Rules
shall be allocated to by the mediator. The mediator shall not have authority to
apportion (equally or otherwise) the legal or other costs, including attorneys
fees, incurred by the parties themselves. The Claim which is the subject of the
mediation shall be resolved in accordance with and on the basis of the
substantive laws (not including the conflicts of laws rules) of the State of
Georgia. If the mediation is successfully concluded, the parties shall enter
into a settlement agreement setting forth the terms thereof and the settlement
of the Claim. Such settlement agreement shall be final and binding on the
parties, each of which agrees to waive any right of appeal thereon. Judgment may
be entered in relation to the settlement agreement in any court of competent
jurisdiction.
d. If the Claim has not been resolved pursuant to the aforesaid
mediation procedure within 60 days of the commencement of such procedure, or if
either party will not participate in a mediation, either party may initiate
litigation regarding such Claim upon a 30-day written notice to the other party.
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e. Any deadline specified in this Section may be extended by
mutual agreement.
f. The procedures specified in this Section shall be the sole and
exclusive procedures for the resolution of any Claim between the parties arising
out of or relating to this Agreement; provided, however, that a party may seek a
preliminary injunction or other preliminary judicial relief if in its judgment
such action is necessary to avoid irreparable damage. Despite such action the
parties will continue to participate in good faith in the procedures specified
in this Section. All applicable statutes of limitation shall be tolled while the
procedures specified in this Section are pending. The parties will take such
action, if any, required to effectuate such tolling.
20. Notices
All notices or other communications required under this Agreement shall be
in writing and shall be deemed to have been given when delivered by hand,
transmitted by facsimile (effective upon receipt of a confirmation showing
transmission to the correct facsimile number), or by overnight courier
(effective upon delivery when sent to the correct address), or by prepaid mail
(effective three [3] days following mailing to the correct address) addressed
to:
Seller:
Georgia-Pacific Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Director, Fluff Pulp Sales
Buyer:
INBRAND Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Either party may change its address by notice to the other party.
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21. Waiver
Failure by either party to enforce, at any time, any term or condition of
this Agreement will not constitute, nor will it be construed as, a waiver of
that party's right thereafter to enforce each and every term of the Agreement.
22. Severability
If for any reason any provision of this Agreement is invalid, illegal or
unenforceable, such provisions shall be deemed severed from the other
provisions of this Agreement and all remaining provisions shall nevertheless
remain in full force and effect.
23. Choice of Laws
This Agreement shall be construed and interpreted under, and the
respective rights and duties of the parties shall be governed by the laws of
the State of Georgia (excluding any conflicts of laws rules, if any, which
would mandate the application of laws other than the laws of State of Georgia).
Any legal action or proceeding arising out of this Agreement or any Claim shall
be brought in the federal or state courts of Georgia and each party hereby
consents, for itself and in respect of its property, to the jurisdiction of
such courts.
24. Entire Agreement
This Agreement and the attached Exhibits constitute the entire agreement
between the parties with respect to the sale and purchase of Pulp. This
Agreement supersedes any and all previous agreements, negotiations or other
understandings of the parties with respect to sales and purchases for which
orders are placed on and after May 1, 1996. This Agreement may be modified or
amended only by a written agreement signed by each of the parties.
25. Construction
This Agreement has been negotiated and jointly drafted by the parties. It
shall therefore be interpreted in accordance with the plain meaning of its
terms and not construed for or against either of the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement, as of the
date first written above.
GEORGIA PACIFIC CORPORATION INBRAND CORPORATION
By: By:
------------------------- --------------------
Senior Vice President Chairman & CEO
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EXHIBIT A
1. Additional Tonnage
a. [confidential]
2. Option Tonnage - At anytime before [confidential], Buyer shall have the
option to purchase additional tons of Pulp (the "Option Tonnage") on either of
the following terms:
Option 1: Seller shall supply and Buyer shall take or
pay for up to [confidential] ADMT/Month, at the
prevailing Agreement price for Pulp set forth in
paragraphs [confidential] of this Agreement, for
[confidential] months after exercise; or
Option 2: Seller shall supply and Buyer shall take or
pay for up to [confidential] ADMT/Month, at the
prevailing Agreement price for Pulp set forth in
paragraphs [confidential] of this Agreement, for
[confidential] years after exercise of the option.
This Option 2 may effectively extend the Agreement
term beyond [confidential] for the Option Tonnage.
If Buyer wishes to elect either of the foregoing options, it must advise Seller
in writing of such election before [confidential].
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EXHIBIT B
PRODUCT SPECIFICATIONS
[Confidential]
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EXHIBIT C
THEORETICAL PRICE ADJUSTMENTS
[Confidential]
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EXHIBIT D
Liquidated Damages Theoretical Calculations
[Confidential]