Exhibit 10.5
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (the "Agreement") made and entered into as of
February 29, 2000, by and between Asia Pulp & Paper Company Ltd., a Singapore
corporation ("APP"), and XxxxxXxxxxxxx.xxx, Inc., a Delaware corporation
("PaperExchange").
WHEREAS, APP manufactures and markets certain paper products (the "APP
Products") world-wide and purchases paper pulp in the manufacture of the APP
Products;
WHEREAS, PaperExchange provides a real-time on-line trading exchange (the
"Exchange") for paper and other products to registered users of PaperExchange
services (the "Members");
WHEREAS, APP is a Member of PaperExchange pursuant to the terms of the
Membership Agreement dated as of __________ (the "Membership Agreement"); and
WHEREAS, Paper Exchange and APP desire that, among other things, APP
commit to list on the Exchange certain quantities of APP Products for sale in
Credit-Approved Transactions, as such term is defined in the Membership
Agreement, and to list a portion of its pulp paper requirements on the Exchange;
NOW THEREFORE, the parties, in consideration of the undertakings and
commitments set forth herein, agree as follows:
1. Defined Terms. All capitalized terms not otherwise defined herein shall
have the meaning set forth in the Membership Agreement.
2. Listings. (a) APP agrees to use reasonable commercial efforts to list
on the Exchange for sale pursuant to Credit--Approved Transactions a minimum of
***** metric tons of APP Products per month, subject to availability of the APP
Products. PaperExchange agrees to accept the foregoing listings. (b) APP agrees
to list a portion of its pulp purchase requirements on the Exchange
3. Further Use of the Exchange. APP agrees to make a good faith evaluation
of the expansion of its use of the Exchange for additional sales of APP
Products, including without limitation, transitioning some portion of APP's
existing customers to the site and using the site to facilitate future sales of
APP Products to APP's existing customer base.
4. Terms of Sale. The terms of sale for the APP Products listed on the
Exchange shall be governed by the Credit-Approved Transactions Agreement and the
Credit-Approved Purchase Terms for Credit-Approved Transactions in effect as of
the sale. APP understands that in the case of all Credit-Approved Transactions,
all sales shall be to PaperExchange and that PaperExchange shall resell the APP
Products to Buyers in accordance with the Credit-Approved Buyer Terms for
Credit-Approved Transactions in effect as of the sale date.
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
5. Term and Termination. Unless earlier terminated as hereinafter
provided, the term of this Agreement shall be for period of one (1) year from
the date hereof. APP and PaperExchange acknowledge that either party may
terminate this Agreement at any time without cause, upon no less than thirty
(30) days' prior written notice to the other party. If PaperExchange (a) without
APP's consent makes material modifications to the Membership Agreement or the
Credit-Approved Transaction Agreement or any other of the Credit Approved
Transaction documents which, in APP's reasonable discretion, have a potential
adverse economic impact on APP, or (b) materially breaches any of the economic
terms of an Credit Approved Transaction Agreement or any other of the Credit
Approved Transaction documents, then APP may, in its sole discretion,
immediately terminate this Agreement and/or its Membership in the Exchange.
6. Goals. Notwithstanding any other provision of this Agreement, the
parties acknowledge that Paragraph 2 is intended to establish a minimum listing
goal for APP. APP and PaperExchange shall work together to cause APP to reach
the goal, however APP shall not be responsible to PaperExchange if it is unable,
for any reason, to meet the listing goal.
7. General Provisions.
7.1 APP and PaperExchange are independent contractors. Nothing in
this Agreement is intended to or will constitute either party as an agent, legal
representative, joint venturer or partner of the other for any purpose.
7.2 A waiver of a breach of any term of this Agreement will not be
construed as a waiver of any succeeding breach of that term or as a waiver of
the term itself. A party's performance after the other's breach will not be
construed as a waiver of that breach.
7.3 All notices required or permitted under this Agreement and all
requests for approvals, consents, and waivers must be in writing and must be
delivered to the parties at their respective addresses by a method providing for
proof of delivery. Any notice or request will be deemed to have been given on
the date of receipt.
If to PaperExchange: If to APP:
XxxxxXxxxxxxx.xxx, Inc. Asia Pulp & Paper Company Ltd.
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxxxxx 000000
Attention: President and CEO Attention: A. Nilo
Telecopier No.: (000) 000-0000 Telecopier No.: (00) 000-0000
with copies to: with copies to:
Xxxxxxx Xxxx LLP Pillsbury Madison & Sutro LLP
000 Xxxxxxx Xxxxxx 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq. Attention: Xxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000 Telecopier No.: (000) 000-0000
7.4 Neither party may assign its rights or obligations under this
Agreement without the prior written consent of the other, except that APP may
assign this Agreement to its parent company, to any of the companies owned or
controlled by its parent, or to any of its subsidiaries. The Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
permitted assigns.
7.5 Except as this Agreement or the Membership Agreement otherwise
provides, no amendment to this Agreement or the Membership Agreement will be
binding unless agreed to in writing and executed by the parties, and no
approval, consent, or waiver will be enforceable unless the granting party signs
it.
7.6 Each term of this Agreement is severable. If a court, agency, or
arbitrator having jurisdiction determines that any term is invalid or
unenforceable under applicable law, that determination will not affect the other
terms of this Agreement, as the case may be, which other terms will continue to
be enforced as if the invalid or unenforceable terms were omitted.
7.7 Any advertising, publicity, release, or other disclosure of
information concerning this Agreement must be approved in writing by both
parties, which approval shall not be unreasonably withheld or delayed, except to
the extent disclosure is legally required.
7.8 This Agreement, in conjunction with the Membership Agreement,
and the Credit-Approved Transaction Agreement, states the complete agreement
between the parties concerning the subject matter hereof, and supersedes earlier
oral and written communications between the parties concerning the subject
matter hereof.
7.9 The validity and construction of this Agreement shall be
governed by and construed in accordance with the internal laws (and not the
choice-of-law rules) of the State of New York.
7.10 This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7.11 The parties agree that any dispute relating to this Agreement
shall be subject to arbitration under the commercial rules of the American
Arbitration Association.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
XxxxxXxxxxxxx.xxx, Inc.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: PRESIDENT & CEO
Title: XXXX X. XXXXX
ASIA PULP & PAPER COMPANY LTD.,
a Singapore corporation
By:
---------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
XxxxxXxxxxxxx.xxx, Inc.,
a Delaware corporation
By:
---------------------------
Name:
Title:
ASIA PULP & PAPER COMPANY LTD.,
a Singapore corporation
By: /s/ Xxx X. Xxx
---------------------------
Name: Xxx X. Xxx
Title: Attorney in Fact