EXHIBIT 10.11
[*] Confidential Treatment Requested
PARTS SUPPLY AGREEMENT
THIS PARTS SUPPLY AGREEMENT ("Agreement") is made and entered into as
of January 1, 1998 by and between Packaging Resources Incorporated, a
Delaware corporation ("PRI"), and General Xxxxx Operations, Inc., a Delaware
corporation ("Yoplait").
RECITALS:
WHEREAS, PRI and Yoplait are parties to a Restated Parts Supply
Agreement dated July 15, 1992, pursuant to which PRI sells to Yoplait rigid
plastic container sidewalls and bottoms identified on Schedule A attached
hereto and made a part hereof (the "Parts") for assembly into six-ounce
reverse tapered, spin welded cups ("6 oz. Cups"); and
WHEREAS, Yoplait desires to continue to purchase from PRI, and PRI
desires to continue to sell to Yoplait, the Parts upon the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. SUPPLY OF PARTS. PRI shall sell to Yoplait, and Yoplait
shall purchase and take delivery from PRI the Parts in accordance with the
terms of Schedule C, attached hereto and made a part hereof. Purchases of
Parts shall be in accordance with Yoplait's written purchase orders submitted
to PRI. In the event there is any conflict between the terms of any such
purchase order and the terms of this Agreement, the terms of this Agreement
shall govern.
2. TERM.
(a) The term of this Agreement shall commence on January
1, 1998 and shall continue in full force and effect until December 31, 1999
(the "Initial Term").
(b) Yoplait shall have an option, subject to PRI's right
of refusal, to renew the term of this Agreement for a period of one (1) year
after the Initial Term upon written notice to PRI not less than nine (9)
months prior to the end of the Initial Term upon such terms and conditions as
the parties shall mutually agree in writing, including a new Schedule C.
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3. PRICE.
(a) BASE PRICE. The base price of the Parts shall be as
noted in Schedule B, attached hereto and made a part hereof.
(b) RESIN PRICE CHANGES. Effective as of January 1, 1999,
a price adjustment for the Parts shall be implemented and effective through
December 31, 1999. Such price adjustment shall be based on any increase or
decrease between the market price of polystyrene on March 1, 1998 and such
price on January 1, 1999. Any price adjustment pursuant to this Section 3(b)
shall be in accordance with the escalator/de-escalator provision of Schedule
B.
(c) COST SAVINGS. The parties agree that to the extent
cost savings are identified, mutually-agreed and implemented, any such
savings shall be passed along to GMI to reduce the base price of the Parts or
to reduce such other applicable costs as are paid by GMI.
4. PURCHASE OF INVENTORY. Upon the termination of this
Agreement for any reason, Yoplait shall purchase from PRI all Parts and
related work in progress then in PRI's inventory; provided, however, that
Yoplait shall not be obligated to purchase any such inventory in excess of
the maximum inventory levels contemplated by the forecasts furnished by
Yoplait pursuant to Section 5 hereof, nor shall Yoplait be obligated to
purchase any such inventory in excess of the volume guarantees provided in
Schedule C.
5. FORECASTS OF REQUIREMENTS. On or about the first (1st) day
of each calendar month during the term hereof, Yoplait shall provide PRI with
a four (4) calendar month forecast of Yoplait's anticipated needs for Parts
hereunder including without limitation, the month, plant location, flavor
design and product group.
6. SPECIFICATIONS AND STANDARDS. PRI in its performance
hereunder shall comply with all specifications and quality control standards
set forth in Schedule A and Schedule D, attached hereto and made a part
hereof ("specifications"). If PRI shall fail to meet such specifications with
respect to any Parts, such Parts shall be returned to PRI at PRI's sole
expense and PRI shall, within thirty (30) days of its receipt of such
defective Parts, either replace such Parts or refund (or credit) the entire
amount of any base price paid for such Parts.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY YOPLAIT. To the extent that the
Parts supplied hereunder comply with the specifications agreed to by the
parties in accordance with Section 6, Yoplait agrees to indemnify, defend and
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hold PRI harmless from and against any and all demands, claims, actions,
suits and proceedings which may at any time be brought against PRI and any
and all liabilities, losses, damages, costs and expenses (including, but not
limited to, reasonable attorneys' fees and other legal costs and expenses)
which may at any time be suffered or incurred by PRI, as a result of, arising
from or in connection with the handling, transportation, or use of the Parts
or any products to be sold within the 6 oz. Cups.
(b) INDEMNIFICATION BY PRI. To the extent that PRI shall
fail to meet the specifications agreed to by the parties in accordance with
Section 6 with respect to any Parts, PRI agrees to indemnify, defend and hold
Yoplait harmless from and against any and all demands, claims, actions, suits
and proceedings which may at any time be brought against Yoplait and any and
all liabilities, losses, damages, costs and expenses (including, but not
limited to, reasonably attorneys' fees and other legal costs and expenses)
which may at any time be suffered or incurred by Yoplait, as a result of,
arising from or on account of any act or omission in connection with the
handling or transportation of such Parts, or any products to be sold within
the 6 oz. Cups; provided, however, in no event shall PRI be liable for the
incidental or consequential losses or damages (including lost profits) of
Yoplait.
8. EXCLUSIVITY. PRI agrees that it will not sell Parts set
forth on Schedule A to any third party.
9. MISCELLANEOUS.
(a) FORCE MAJEURE. In the event that either party hereto
shall be prevented from the performance of any act required hereunder by
reason of strikes, lock-outs, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reasons of a like nature not the fault of, or
under the control of, the party delayed in performing work or doing acts
required under the terms of this Agreement, then performance of such act
shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay, provided the party delayed in performing promptly gives
written notice to the other party of its inability to perform and provided,
further, that upon the termination of the force majeure event the delayed
party promptly commences performance.
(b) NOTICES. Any notice, claim, demand, request or other
communication required or permitted under this Agreement shall be valid and
effective only if given by written instrument which is personally delivered,
sent by facsimile, air courier or registered or certified airmail, postage
prepaid, addressed as follows:
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To PRI: Packaging Resources Incorporated
One Xxxxxx Park
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
To Yoplait: General Xxxxx Operations, Inc.
Number Xxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Any notice, claim, demand, request or other communication
given as provided in this Section if given personally, shall be effective
upon delivery; if given by facsimile, shall be effective one day after
transmission; if given by air courier, shall be effective five (5) days after
deposit with the courier; and if given by mail, shall be effective ten (10)
days after deposit in the mail. Either party may change the address at which
it is to be given notice by giving written notice to the other party as
provided in this Section.
(c) ENTIRE AGREEMENT. This Agreement and the Schedules
hereto constitute the entire understanding and agreement between the parties,
and supersedes all prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter of this
Agreement. This Agreement may not be modified or amended except by an
instrument in writing executed by the parties hereto.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
(e) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of all successors and assigns of the parties hereto.
(f) ASSIGNMENT. PRI shall not assign or otherwise transfer
in any manner (either by contract, operation of law or change in control)
this Agreement or any of PRI's rights or obligations without Yoplait's prior
written consent, which consent shall not be unreasonably withheld or delayed.
(g) SEVERABILITY. If any provision of this Agreement shall
be found invalid or unenforceable, in whole or in part, by a court of
competent
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jurisdiction, then such provision shall be deemed to be modified or restricted
to the extent and in the manner necessary to render the same valid and
enforceable, or shall be deemed excised from this Agreement, as the case may
require, and this Agreement shall be construed and enforced to the maximum
extent permitted by law, as if such provision had been originally
incorporated herein as so modified or restricted, or as if such provision had
not been originally incorporated herein, as the case may be, provided that
the basic intent of the parties has not thus been rendered incapable of
achievement.
(h) HEADINGS. Section headings have been inserted in this
Agreement as a matter of convenience only and are not a part of this
Agreement and shall not be used in the interpretation of this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and the parties may execute and deliver this Agreement by
executing and delivering any of such counterparts.
(j) PRIOR AGREEMENT. The execution of this Agreement shall
render null and void any agreements previously executed by the parties
regarding the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
PACKAGING RESOURCES INC. GENERAL XXXXX OPERATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx X. Friendly
------------------------------ -------------------------------
Name: XXXXXX X. XXXXXX Name: Xxx X. Friendly
Title: PRES, C.E.O. Title: President, Yoplait Colombo
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SCHEDULE A Schedule A
1 of 4
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SCHEDULE A
2 of 4
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SCHEDULE A 3 of 4
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SCHEDULE A 4 of 4
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Schedule B
1 of 3
March 1, 1998
SCHEDULE B
PACKAGING RESOURCES INCORPORATED
Pricing Schedule
Effective March 1, 1998
Includes $0.03/lb Market Price Increase for High Impact Styrene
(Initial Contract Pricing)
YOPLAIT - COLOMBO
-----------------
Ship to: Carson, California
(#109779)
Part Description Price/M
---------------- -------
POLYSTYRENE
6 oz. White Sidewall, Printed (Process - 5 to 6 Colors) [*]
6 oz. Yellow Sidewall, Printed (Line - 4 Colors) [*]
6 oz. White Bottom, Unprinted [*]
Title: Passes at Packaging Resources Incorporated.
Freight: Collect
Terms: 1% 10 Days, Net 30 Days.
Sale subject to credit approval.
Current Resin Escalator/Deescalator
----------------------------------
Price change for each $0.01/lb. of polystyrene market price change is as
follows:
Sidewall - [*]
- [*]
Bottom - [*]
Tooling
-------
Packaging Resources owns all tools: 1 Bottom tool (100 cavity); 3 Sidewall
tools (80 cavity, 56 cavity, 56 cavity).
Packaging Resources performs and bears the cost of all routine maintenance to
include routine inspection, periodic cleaning and polishing, and recalibration
of all tooling assemblies and, at a minimum of every two years, a rebuild of
main mold assemblies to include seals, shafts, die pins and bushings.
5
2 of 3
March 1, 1998
SCHEDULE B
PACKAGING RESOURCES INCORPORATED
Pricing Schedule
Effective March 1, 1998
Includes $0.03/lb Market Price Increase for High Impact Styrene
(Initial Contract Pricing)
YOPLAIT - COLOMBO
-----------------
Ship to: Xxxx City, Michigan
(#109820)
Part Description Price/M
---------------- -------
POLYSTYRENE
6 oz. White Sidewall, Printed (Process - 5 to 6 Colors) [*]
6 oz. Yellow Sidewall, Printed (Line - 4 Colors) [*]
6 oz. White Bottom, Unprinted [*]
Title: Passes at Packaging Resources Incorporated.
Freight: Customer Pickup.
Terms: 1% 10 Days, Net 30 Days.
Sale subject to credit approval.
Current Resin Escalator/Deescalator
----------------------------------
Price change for each $0.01/lb. of polystyrene market price change is as
follows:
Sidewall - [*]
- [*]
Bottom - [*]
Tooling
-------
Packaging Resources owns all tools: 1 Bottom tool (100 cavity); 3 Sidewall
tools (80 cavity, 56 cavity, 56 cavity).
Packaging Resources performs and bears the cost of all routine maintenance to
include routine inspection, periodic cleaning and polishing, and recalibration
of all tooling assemblies and, at a minimum of every two years, a rebuild of
main mold assemblies to include seals, shafts, die pins and bushings.
6
3 of 3
March 1, 1998
SCHEDULE B
PACKAGING RESOURCES INCORPORATED
Pricing Schedule
Effective March 1, 1998
Includes $0.03/lb Market Price Increase for High Impact Styrene
(Initial Contract Pricing)
YOPLAIT - COLOMBO
-----------------
Ship to: Methuen, Massachusetts
(#109816)
Part Description Price/M
---------------- -------
POLYSTYRENE
6 oz. White Sidewall, Printed (Process - 5 to 6 Colors) [*]
6 oz. Yellow Sidewall, Printed (Line - 4 Colors) [*]
6 oz. White Bottom, Unprinted [*]
Title: Passes at Packaging Resources Incorporated.
Freight: Packaging Resources Arranges for, Prepays and Bills Customer.
Terms: 1% 10 Days, Net 30 Days.
Sale subject to credit approval.
Current Resin Escalator/Deescalator
----------------------------------
Price change for each $0.01/lb. of polystyrene market price change is as
follows:
Sidewall - [*]
- [*]
Bottom - [*]
Tooling
-------
Packaging Resources owns all tools: 1 Bottom tool (100 cavity); 3 Sidewall
tools (80 cavity, 56 cavity, 56 cavity).
Packaging Resources performs and bears the cost of all routine maintenance to
include routine inspection, periodic cleaning and polishing, and recalibration
of all tooling assemblies and, at a minimum of every two years, a rebuild of
main mold assemblies to include seals, shafts, die pins and bushings.
7
SCHEDULE C
PARTS VOLUME REQUIREMENTS
(1) Subject to paragraph (2) below, during the Initial Term of this
Agreement, Yoplait guarantees PRI that Yoplait shall purchase [*] Parts
during each calendar year of the Initial Term ("Guaranteed Purchase Volume").
If Yoplait does not purchase the Guaranteed Purchase Volume in each calendar
year of the Initial Term, Yoplait shall pay PRI [*] per one thousand Parts on
the difference between the Guaranteed Purchase Volume and the actual number
of Parts purchased (the "Shortfall Amount"). Yoplait's payment to PRI of the
Shortfall Amount shall be PRI's sole and exclusive remedy for Yoplait's
failure to purchase the Guaranteed Purchase Volume during each year of the
Initial Term. PRI shall invoice Yoplait for the Shortfall Amount at the end
of each calendar year of the Initial Term and the terms of payment shall be
net thirty (30) days.
(2) Yoplait shall not be obligated to purchase the Guaranteed Purchase
Volume during each calendar year of the Initial Term if Yoplait's total
requirements for Yoplait 6 oz. Original, Custard and Light yogurt cups as
referred to in Schedule A does not meet or exceed [*] during such year
because Yoplait is not selling Yoplait Original, Custard and Light 6 oz.
yogurt cups as referred to in Schedule A in sufficient quantities to meet the
Guaranteed Purchase Volume. However, if during any such calendar year,
Yoplait's total requirements do not meet or exceed the Guaranteed Purchase
Volume and Yoplait elects to order Yoplait Original, Custard and Light 6 oz.
cups as referred to in Schedule A from another source, then Yoplait will be
obligated to pay PRI the Shortfall Amount, plus the applicable Financing
Charges as described in subparagraph (3) below, but only on the quantity
ordered from the other source. Yoplait shall notify PRI of any such
quantities ordered from another source and PRI shall invoice Yoplait for the
Shortfall Amount at the end of each calendar year of the Initial Term and the
terms of payment shall be net thirty (30) days.
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(3) Financing Charges are defined as:
Quantity Shortfall X [*] per 1000 6 oz. cups X (Prime Interest
Rate + [*] divided by 12) X Number of Months below.
[*]
"Prime Interest Rate" means the base rate as announced by Citibank N.A. and
in effect on December 15 of the applicable calendar year during the Initial
Term.
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Printed: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 1 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
[*]
Printed: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 2 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
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Printed: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 3 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
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Printed: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 4 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
COMPONENTS
Type Unit of Measure Value
POLYSTYRENE
PHYSICAL PROPERTIES
Name Unit of Measure Test Procedure Min Max
This section currently has no information.
[*]
Printed: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 5 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
[*]
Printed: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 6 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
[*]
Printed: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 7 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
[*]
Printed: MAR 4 1990 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 39-302 PAGE 8 OF 28
For Supplier # 000000
XXXXXXXXX XXXXXXXXX
XXX XXXXXX, XX
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SCHEDULE D
PAGE 9 OF 28
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SCHEDULE D
PAGE 10 OF 28
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SCHEDULE D
Printed: MAR 4 1998 GENERAL XXXXX, INC. PAGE 11 OF 28
PACKAGING SPECIFICATION No. 30-292
For Supplier # 040335
WEYERHAEUSER - THREE RIVERS
THREE RIVERS, MI
[*]
SCHEDULE D
Printed: MAR 4 1998 GENERAL XXXXX, INC. PAGE 12 OF 28
PACKAGING SPECIFICATION No. 30-292
For Supplier # 040335
WEYERHAEUSER - THREE RIVERS
THREE RIVERS, MI
[*]
[*]
Printed : MAR 4 1998 GENERAL XXXXX, INC.
PACKAGING SPECIFICATION No. 30-293
SCHEDULE D
PAGE 14 OF 28
For Supplier # 040335
WEYERHAEUSER - THREE RIVERS
THREE RIVERS, MI
[*]
Printed : MAR 4 1998 GENERAL XXXXX, INC.
PACKAGING SPECIFICATION No. 30-293
SCHEDULE D
PAGE 15 OF 28
For Supplier # 040335
WEYERHAEUSER - THREE RIVERS
THREE RIVERS, MI
[*]
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Printed: Mar 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 30-294 PAGE 17 OF 28
For Supplier # 040335
WEYERHAEUSER - THREE RIVERS
THREE RIVERS, MI
[*]
Printed: Mar 4 1998 GENERAL XXXXX, INC. SCHEDULE D
PACKAGING SPECIFICATION No. 30-294 PAGE 18 OF 28
For Supplier # 040335
WEYERHAEUSER - THREE RIVERS
THREE RIVERS, MI
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PAGE 19 OF 28
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Date: MAR 3 1998 GENERAL XXXXX, INC. SCHEDULE D
GENERAL PACKAGING SPECIFICATION PAGE 20 OF 28
RETAINED SOLVENTS
CONFIDENTIAL
ORIGINATION DATE: 06/05/87
STATUS: ACTIVE
REVISION DATE: 03/28/96
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Date: MAR 3 1998 GENERAL XXXXX, INC. SCHEDULE D
GENERAL PACKAGING SPECIFICATION PAGE 21 OF 28
RIGID PLASTICS
CONFIDENTIAL
ORIGINATION DATE: 08/09/89
STATUS: ACTIVE
REVISION DATE: 01/28/93
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Date: MAR 3 1998 GENERAL XXXXX, INC. SCHEDULE D
GENERAL PACKAGING SPECIFICATION PAGE 22 OF 28
RIGID PLASTICS
[*]
DATE: MAR 3 1998 GENERAL XXXXX, INC. SCHEDULE D
GENERAL PACKAGING SPECIFICATION PAGE 23 OF 28
RIGID PLASTICS
[*]
DATE: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
GENERAL PACKAGING SPECIFICATION PAGE 24 OF 28
CORRUGATED
CONFIDENTIAL
ORIGINATION DATE: 12/04/89
STATUS: ACTIVE
REVISION DATE: 08/23/95
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Date: MAR 4 1998 GENERAL XXXXX, INC.
GENERAL PACKAGING SPECIFICATION SCHEDULE D
CORRUGATED PAGE 25 OF 28
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Date: MAR 4 1998 GENERAL XXXXX, INC.
GENERAL PACKAGING SPECIFICATION SCHEDULE D
CORRUGATED PAGE 26 OF 28
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Date: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
GENERAL PACKAGING SPECIFICATION PAGE 27 OF 28 PAGES
CORRUGATED
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Date: MAR 4 1998 GENERAL XXXXX, INC. SCHEDULE D
GENERAL PACKAGING SPECIFICATION PAGE 28 OF 28 PAGES
CORRUGATED
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