EXHIBIT 10(k)
CONFIDENTIAL TREATMENT
The material marked by ({REDACTED}) on the attached pages has been omitted from
the filed copy of this agreement in connection with a confidential treatment
request filed with the Securities and Exchange Commission by Lesco, Inc. (the
"Company").
LONG-TERM SUPPLY AGREEMENT
This LONG-TERM SUPPLY AGREEMENT ("Agreement") is entered into effective as
of October 1, 2005 ("Contract Date"), by and between Turf Care Supply Corp., a
Delaware corporation ("Supplier"), and LESCO, Inc., an Ohio corporation
("LESCO"). Additional defined terms are set forth in Section 1 hereof.
RECITALS
A. Prior to the Purchase and Sale Closing Date, LESCO used the Purchased
Assets to manufacture and distribute the Products for its own account. Pursuant
to the Purchase Agreement, effective as of the Purchase and Sale Closing Date,
Supplier acquired from LESCO the Purchased Assets and will now commence to
manufacture and distribute the Products for LESCO (and other products for
others) pursuant to this Agreement.
X. XXXXX and Supplier have entered into this Agreement, effective as of the
Contract Date, to establish the terms and conditions for LESCO's ongoing
purchase from Supplier of Existing Products (and such New Products as Supplier
may make available pursuant to this Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, LESCO and Supplier agree as follows:
1. ACCOUNTING TERMS; DEFINITIONS. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if LESCO
notifies Supplier that LESCO requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision, regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith. Defined terms used in this Agreement shall have the
meaning ascribed thereto as follows:
"Agreement" is defined in the introductory paragraph hereof.
"Basic Warranty" is defined in Section 9(a) hereof.
"Basic Warranty Period" is defined in Section 9(a) hereof.
"Business Day" means any day other than a Saturday, Sunday or day on
which commercial banks are authorized to close under the laws of the State of
Ohio.
"CAS" means cost accounting standards as applied in the United States
of America and on a basis consistent with LESCO's historical practices, except
as otherwise modified or set forth in Attachments D and/or E to this Agreement.
"Confidential Information" is defined in Section 15 hereof.
"Conforming Goods" means Products that are manufactured or sourced by
Supplier
for or on behalf of LESCO that meet or exceed the Specifications and Quality
Standards; provided, however, that fertilizer blends produced with the existing
Ranco blenders at the Sebring, Florida facility will not be considered
non-conforming until such time as Supplier modifies, upgrades, replaces or no
longer uses the Ranco blenders.
"Conforming PO" means either a Conforming Seasonal PO or a Conforming
Non-Seasonal Replen PO, as applicable.
"Conforming Non-Seasonal Replen PO" means any Non-Seasonal Replen PO
delivered by LESCO to Supplier which:
(i) orders a quantity of Products not in excess of the amount
provided for such month in the Locked Non-Seasonal Purchase Forecast (as defined
in Attachment C),
(ii) provides for between seven and fourteen days to deliver the
applicable Non-Seasonal Product (to be adjusted by LESCO and Supplier based on
actual experience during the Transitional Period, but not to exceed 14 days),
and
(iii) contains the items set forth in subsections (i) through (v)
of Section 3(c) hereof.
"Conforming Seasonal PO" means any Seasonal PO delivered by LESCO to
Supplier which:
(i) orders a quantity of Products not in excess of the amount
provided for such month in the Locked PO Forecast (as defined in Attachment C),
(ii) is delivered on or before the first day of the applicable
month specified in the PO Forecast,
(iii) provides for seven to fourteen days' delivery time (to be
adjusted by LESCO and Supplier based on actual experience during the
Transitional Period, but not to exceed 14 days),
(iv) provides for the delivery location and SKU that is specified
in the PO Forecast, and
(v) contains the items set forth in subsections (i) through (v)
of Section 3(b).
A PO (an "In-Month Conforming Seasonal PO") will also be considered a
Conforming Seasonal PO if:
(i) the quantity of the SKU ordered by such PO, when taken
together with the quantities of such SKU ordered by other Conforming Seasonal
PO's and In-Month Conforming Seasonal PO's issued within the same month, does
not exceed an amount equal to 10% of the quantity of SKU forecasted in the
Locked PO Forecast (as defined in Attachment C) for such month,
(ii) provides for seven to fourteen days' delivery time (to be
adjusted by LESCO and Supplier based on actual experience during the
Transitional Period, but not to exceed 14 days), and
(iii) contains the items set forth in subsections (i) through (v)
of Section 3(b).
"Contract Date" is defined in the introductory paragraph hereof.
"Contract Term" is defined in Section 8(a) hereof.
"Customer" means any person who purchases any Product from LESCO,
whether
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through a Store, through LESCO's golf sales representatives network, through
Internet sales or otherwise.
"Environmental Protection Agency" means the U.S. Environmental
Protection Agency, and any successor agency or agencies that may exist from time
to time.
"Existing Products" means those certain fertilizers, seed, control
products and related products specifically listed by SKU and described in
Attachment A attached hereto and made a part hereof.
"Force Majeure" is defined in Section 11 hereof.
"Forecast" means a Non-Seasonal Purchase Forecast, a PO Forecast or a
Seasonal Purchase Forecast.
"GAAP" means generally accepted accounting principles as applied in
the United States of America and on a basis consistent with LESCO's historical
practices, as in effect as of the pertinent measurement or testing date, unless
otherwise modified or set forth in this Agreement.
"Last Leg Transportation Costs" is defined in Attachment D.
"LESCO" is defined in the introductory paragraph hereof.
"LESCO Purchase Order" means LESCO's purchase order issued in
electronic, written or other format to Supplier; provided, however, that in the
event of any inconsistency between a LESCO Purchase Order and this Agreement,
the terms hereof shall control.
"Lost Gross Profit" is defined in Attachment B hereof.
"Major Make-Whole Payment" is defined in Attachment B hereof.
"Maintenance Capital" means all capital expenditures (as defined and
determined in accordance with GAAP) made by Supplier in connection with the
assets acquired for purposes of manufacturing or sourcing Products for LESCO.
"Margin" means the Margin on A/R and the Margin on Maintenance
Capital, as applicable.
"Margin on A/R" is defined in Attachment F hereof.
"Margin on Maintenance Capital" is defined in Attachment F hereof.
"Minor Make-Whole Payment" is defined in Attachment B hereof.
"New Products" is defined in Section 3(e) hereof.
"Non-Seasonal Products" means all Products other than Seasonal
Products.
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"Non-Seasonal Purchase Forecast" is defined in Attachment C hereof.
"Non-Seasonal Replen PO" is defined in Section 3(c) hereof.
"Owner" is defined in Section 15 hereof.
"parties" means LESCO and Supplier, and their permitted successors and
permitted assigns, and "party" means LESCO or Supplier (and their respective
permitted successors and permitted assigns).
"person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government, or any agency or political subdivision
thereof, or any other form of entity.
"PO Forecast" is defined in Attachment C hereof.
"Products" means Existing Products and New Products, collectively,
that are manufactured or sourced for or on behalf of LESCO by Supplier pursuant
to this Agreement.
"Purchase Agreement" means that certain Asset Purchase Agreement
executed as of July 26, 2005 by Supplier and LESCO but effective as of the
Purchase and Sale Closing Date.
"Purchase and Sale Closing Date" means the closing date of the
purchase and sale transaction contemplated by the Purchase Agreement.
"Purchased Assets" means the assets purchased by Supplier from LESCO
pursuant to the Purchase Agreement.
"Recipient" is defined in Section 15 hereof.
"Seasons" means the various time periods set forth in Attachment A to
this Agreement with respect to the Seasonal Products set forth opposite such
time periods, and "Season" shall mean any one of them.
"Seasonal PO" is defined in Section 3(b).
"Seasonal Products" means, for each Season (and only with respect to
the period of such Season), the applicable category (i.e., Pre-emergent;
Post-emergent; Fertilizer; Insecticide; Fungicide; Seed; or Ice Melt) of Product
set forth opposite the name of the applicable Season in Attachment A hereof). A
Seasonal Product shall be considered a Non-Seasonal Product for all time periods
other than such Seasonal Product's Season(s) as set forth on Attachment A.
"Seasonal Purchase Forecast" is defined in Attachment C hereof.
"SEC" means the U.S. Securities and Exchange Commission, and any
successor agency or agencies that may exist from time to time.
"Semi-Annual Forecast" is defined in Section 3(a) hereof.
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"SKU" means stock-keeping unit.
"Specifications and Quality Standards" means the specifications and
quality standards for manufacturing, packaging and labeling the products, which
shall be provided by LESCO to Supplier in written and/or electronic format
through XXXXX'x xxxx of materials system, as updated from time to time; provided
that to the extent the Specification and Quality Standards change from those in
existence today, any additional costs or savings resulting therefrom will adjust
the Historical Metrics in Attachment E appropriately.
"Standard Cost" is defined in Section 4(a) hereof
"Store" means any LESCO Stores-On-Wheels(R), LESCO Service Center(R)
or other LESCO owned or leased sales outlet.
"Supplier" is defined in the introductory paragraph hereof.
"Transitional Period" means the Transitional Period as defined in the
TSA.
"TSA" means that certain Transitional Services Agreement dated as of
October 1, 2005, by and between LESCO and Supplier.
2. SALE AND PURCHASE OF PRODUCTS.
(A) Agreement to Sell and Purchase Products. Supplier shall sell to
LESCO, and LESCO shall purchase from Supplier, Products pursuant to the terms
hereof. At all times during the Contract Term, Supplier shall maintain the
capacity and resources necessary to permit Supplier to satisfy each Conforming
PO, within agreed upon lead times and meeting all Specifications and Quality
Standards and the other terms and conditions contained in this Agreement, which
capacity and resource levels shall be at least equal to those of or related to
the Purchased Assets immediately prior to the Contract Date. This Agreement
constitutes a requirements contract with regard to all Products, meaning that
(i) Supplier hereby grants LESCO a first call on Supplier's manufacturing
capacity and resources to the extent required to satisfy one hundred and five
percent (105%) of each June Capacity Forecast and December Capacity Forecast
(subject to the provisions of Section 3(a) hereof and provided that Supplier
shall not be obligated to possess capacity and resources beyond that available
with the Purchased Assets immediately prior to Closing), and that Supplier will
manufacture products for other customers only to the extent that fulfilling one
hundred and five percent (105%) of the June Capacity Forecast and December
Capacity Forecast (subject to the provisions of Section 3(a) hereof) does not
require such capacity and resources and (ii) LESCO shall purchase all Products
that it requires from Supplier except (A) that, to the extent Supplier informs
LESCO that it is unable to produce the volume of the applicable Product
indicated in a Forecast or LESCO Purchase Order, LESCO may acquire any shortfall
from third party suppliers; (B) that, to the extent LESCO acquires certain
Products (including, for avoidance of doubt, branded products) from third party
manufacturers as of the date hereof, LESCO may continue to source those Products
from such manufacturers if Supplier is not able to manufacture or source such
Products on a basis at least as favorable to LESCO; (C) that nothing in this
Agreement shall be construed to prohibit or limit LESCO from acquiring
Product(s) from any other person to the extent
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Supplier is unable to comply with any of its obligations under this Agreement or
to the extent delivery costs to any Store or Customer make any purchase(s) of
Product(s) from Supplier more costly to LESCO than from any other source; and
(D) pursuant to Section 3(b) hereof.
(B) Product Specifications. Supplier will manufacture or source all
Products to the Specifications and Quality Standards. As required by applicable
law but normally once per fiscal year, Supplier shall deliver to LESCO (i) for
any Product sold to LESCO hereunder that is registered with the EPA, a
specification sheet and a certificate of analysis in the form submitted to the
EPA for such Product, and (ii) for any Product sold to LESCO hereunder that is
not registered with the EPA, a specification sheet and a certificate
satisfactory to LESCO certifying that such Product conforms with the
Specifications and Quality Standards applicable thereto.
(C) LESCO's Resale of Products. LESCO is permitted to resell the
Products to any person anywhere in the world at any price and in any manner
whatsoever including, but not limited to, from a Store, through LESCO's golf
sales representatives network or through Internet sales. For avoidance of doubt,
Supplier acknowledges and agrees that (i) LESCO may receive co-operative
advertising payments from vendors (for, among other things, advertising,
slotting and spiffs) in connection with LESCO's sales of the Products, and (ii)
all such payments are not covered by this Agreement, do not impact in any manner
whatsoever the price to be paid by LESCO hereunder for Products, and may be
retained by LESCO without any accounting whatsoever to Supplier.
(D) Special Provisions Relating to Turfgrass Seed. Pursuant to the
Purchase Agreement, Supplier has acquired LESCO's turfgrass seed facilities and
personnel in Silverton, Oregon. However, LESCO is retaining all contracts and
licenses relating to the manufacture and purchase of turfgrass seed ("Turfgrass
Seed Contracts").
(i) LESCO will arrange to have the turfgrass seed purchased
pursuant to the Turfgrass Seed Contracts delivered to Supplier's facility in
Silverton, Oregon (as elsewhere, as the Parties may agree from time to time).
LESCO shall sell to Supplier, and Supplier shall purchase from LESCO, such
turfgrass seed upon delivery thereof to Supplier's facility. The terms of
purchase/sale shall be identical to the terms of purchase/sale, including
payment terms, between LESCO and its turfgrass seed vendors pursuant to the
applicable Turfgrass Seed Contracts (for avoidance of doubt, LESCO shall sell
such turfgrass seed to Supplier at LESCO's cost thereof, and TCS shall remit
payment (equal to what LESCO must pay its turfgrass seed vendor(s)) to LESCO at
least one (1) Business Day before LESCO pays its turfgrass seed vendor(s)).
(ii) All turfgrass seed sold to Supplier shall be held solely and
exclusively for LESCO, and LESCO shall purchase all of such Product as needed.
LESCO shall designate from time to time whether a particular quantity of such
seed shall be delivered to it under LESCO's "variety specific" names and labels
or under a "non-variety specific" name and label. If Supplier must have a
license or other permission to re-sell such turfgrass seed to LESCO, the parties
shall cooperate in good faith in order for Supplier to obtain such
license/permission.
(iii) Supplier shall use its commercially reasonable best efforts
to assist LESCO in maintaining good relationships with its turfgrass seed
vendors in the manner historically maintained by LESCO prior to the Contract
Date.
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(iv) Except as otherwise set forth in this Section 2(d),
turfgrass seed purchased by Supplier from LESCO shall, upon such purchase, be
treated like any other Product hereunder.
3. QUANTITIES AND ORDERING
(A) Forecasting; Production Scheduling; Ordering. As set forth in
Attachment C, LESCO or Supplier shall prepare (and, as specified on such
attachment, LESCO and Supplier shall agree on): (i) with respect to Seasonal
Products (including the seasonal allocations of Non-Seasonal Products), (A)
monthly forward 12-month Seasonal Purchase Forecasts, (B) monthly forward
12-month Seasonal Production Schedules and (C) monthly forward 12-month Seasonal
PO Forecasts and (ii) with respect to Non-Seasonal Products, a monthly forward
12-month Non-Seasonal Purchase Forecast, in each case all as set forth in
Attachment C hereto. (The 12-month Seasonal Purchase Forecasts and the 12-month
Non-Seasonal Purchase Forecasts that are delivered in June and December are
referred to herein, respectively, as the "June Capacity Forecast" and the
"December Capacity Forecast" and the first six months of each of the June
Capacity Forecast and the December Capacity Forecast are referred to herein
collectively as the "Semi-Annual Forecasts" and each as a "Semi-Annual
Forecast."). The June Capacity Forecast and the December Capacity Forecast shall
be considered final for purposes of determining capacity and resources that must
be reserved for LESCO pursuant to Section 2(a) hereof and for purposes of
Section 8; provided that where the June Capacity Forecast and the December
Capacity Forecast overlap, the forecast first provided shall govern with respect
to such six month period and the capacity and resources required under Section
2(a) hereof and provided, further, that Supplier shall make available to LESCO
all excess capacity and resources in excess of such June and December Capacity
Forecasts to the extent not otherwise committed to other customers. For example,
if (1) the December Capacity Forecast delivered in December 2005 requires 1000
tons between January 1, 2006 and June 30, 2006 and 1,500 tons between July 1,
2006 and December 31, 2006 and (2) the June Capacity Forecast delivered in June
2006 requires 2,000 tons between July 1, 2006 and December 31, 2006 and 2,500
tons between January 1, 2007 and June 30, 2007, then Supplier is required to
reserve capacity and resources to LESCO to produce (a) 1,575 tons from July 1,
2006 to December 31, 2006 and (b) 2,625 tons between January 1, 2007 and June
30, 2007 provided that Supplier shall make available to LESCO all excess
capacity and resources in excess of such June and December Capacity Forecasts to
the extent not otherwise committed to other customers.
The parties acknowledge that Supplier need not begin production (other than
sourcing of raw materials) of Seasonal Products (including the seasonal
allocations of Non-Seasonal Products) until Supplier receives a Conforming PO.
(B) Ordering of Seasonal Products. A LESCO Purchase Order for Seasonal
Products (including the seasonal allocations of Non-Seasonal Products) (a
"Seasonal PO") will be issued by LESCO to Supplier pursuant to the PO Forecast
or Section 3(d) hereof. Issuance of a Seasonal PO will commit LESCO to purchase
from Supplier the Products ordered on the Seasonal PO. LESCO will endeavor to
deliver all Seasonal POs (other than In-Month Seasonal PO's) on or before the
first day of the month specified in the PO Forecast. Each Seasonal PO will
contain:
(i) the SKU of the ordered Product;
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(ii) the quantity and Standard Price per SKU;
(iii) the address or delivery site of the Store or Customer where
the Product is to be delivered or the service area containing the Store where
the Product will ultimately be delivered with sufficient specificity so that
Supplier can determine the appropriate distribution center and manufacturing
plant;
(iv) the date of delivery to the Store or Customer; and
(v) any mutually-agreed special delivery requirements.
(C) Ordering of Non-Seasonal Products. LESCO Purchase Orders for
Non-Seasonal Products may be issued by LESCO to Supplier from time to time for
the replenishment of Non-Seasonal Products (a "Non-Seasonal Replen PO").
Issuance of a Non-Seasonal Replen PO will commit LESCO to purchase from Supplier
the Products ordered on such PO. Each Non-Seasonal Replen PO will contain the
following information:
(i) Product SKU,
(ii) the address or delivery site of the Store or Customer where
the Product is to be delivered,
(iii) the quantity and Standard Price per SKU,
(iv) the date of delivery to the Store or Customer, and
(v) any mutually-agreed special delivery requirements.
(D) Changes in Need for any Product. LESCO will promptly advise
Supplier in writing if LESCO has placed any Product SKU on "watch" or
"phase-out" status, or if LESCO has any other reason to anticipate any increase
or decrease in its need for any Product not otherwise reflected in any Forecast.
In any such event, Supplier shall use all commercially reasonable best efforts
(including, but not limited to, the running of additional production shifts, if
necessary) to fulfill LESCO's revised needs with respect to any Product ordered
pursuant to a LESCO Purchase Order as soon as practicable after receipt of a
revised LESCO Purchase Order reflecting an increased or decreased order for such
Product; provided that Supplier shall not be subject to any penalties or any
other liabilities if it is unable to deliver the increased volume of Products in
accordance with the revised LESCO Purchase Order. If Supplier determines that it
will be unable to deliver an increased volume of Products to comply with LESCO's
revised needs, it shall promptly so notify LESCO of such fact and the reason(s)
therefor, and LESCO shall be free to purchase from any other supplier or
suppliers the quantities that Supplier is unable to deliver.
(E) New Products.
(i) Supplier will keep LESCO fully informed as to the development
status of all proposed new fertilizer, combination fertilizer, seed, ice melt,
pesticide, pest control products and/or related product(s) (collectively, "New
Products" and individually, a "New Product") being developed by or on behalf of
Supplier and, to the extent known, by any other person; provided, however, that
the foregoing provision shall not require Supplier to violate any written or
oral contractual confidentiality obligation to a third party, any trade secrets
of a third party or any applicable law (so long as such written or oral
contractual confidentiality obligation was not created in order to circumvent
such foregoing provision). As soon as Supplier determines that a New Product to
be manufactured or sourced by Supplier is commercially viable, it shall so
notify LESCO in writing, describing the New Product(s) to be manufactured or
sourced, the anticipated
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availability schedule therefor and the quantities thereof that are anticipated
to be available for delivery. For any New Product(s) being developed or sold by
a person other than Supplier, Supplier shall keep LESCO apprised of any
information relating thereto that becomes known to Supplier, and Supplier shall,
at the request of LESCO, either obtain, at LESCO's cost, sufficient rights to
allow Supplier to manufacture or source such New Product(s) for the benefit of
LESCO and its Customers or permit LESCO to purchase such New Products(s) for
distribution to LESCO and/or LESCO's Customers through Supplier's distribution
network. Any intellectual property related to New Product(s) developed by
Supplier pursuant to this paragraph shall be the property of Supplier, subject
to the license rights granted to LESCO in Section 7(c) hereof.
(ii) LESCO may from time to time propose to Supplier the
development and/or manufacture of a New Product (including, but not limited to,
derivatives of Existing Products) and, subject to Section 3(e)(iv) hereof,
Supplier shall proceed with such development. In the event that Supplier does
not proceed with such development as a result of such Section 3(e)(iv), LESCO
shall be free to proceed with such development as LESCO proposes. Supplier shall
so notify LESCO in writing, describing the New Product(s) to be manufactured or
sourced, the anticipated availability schedule therefor and the quantities
thereof that are anticipated to be available for delivery. If, as a result of
such development, a patentable invention, technology or other protectable
intellectual property right is created, LESCO and Supplier shall cooperate with
one another to register or otherwise protect such intellectual property at
LESCO's cost. Any such intellectual property related to New Product(s) proposed
by LESCO pursuant to this paragraph shall be the property of LESCO, subject to
the license rights granted to Supplier in Section 7(b) hereof.
(iii) Any New Product purchased by LESCO under this Section 3(e)
shall be deemed to be one of the "Products" for purposes hereof, and Attachment
A shall be updated from time to time to reflect any New Product(s) that become
Existing Products.
(iv) If the manufacture of a New Product would result in a
material increase in Standard Cost pursuant to Section 6(a)(iv) hereof, then
Supplier and LESCO shall cooperate in good faith to reset the metrics set forth
in Attachment E hereof in order to take such change into account. If the parties
are unable to agree on such new metrics, then Supplier may refuse to manufacture
such New Product(s).
(F) Information Transmission Process. Supplier and LESCO shall
cooperate in good faith to establish and thereafter utilize, as soon as is
reasonably practicable and cost effective, an electronic data transmission
process to support data transmission and communication between LESCO and
Supplier including, but not limited to, forecasts, production schedules and any
other information mutually desired by the parties.
(G) Bar Coding. Supplier and LESCO shall cooperate in good faith to
establish and thereafter utilize, as soon as is reasonably practicable and cost
effective, a Product bar-coding system mutually acceptable to the parties.
4. PRODUCT PRICING.
(A) Product Pricing. For each Product purchased by LESCO from Supplier
hereunder (including pursuant to Section 5(b) and 5(c)), LESCO shall pay to
Supplier Supplier's cost, as
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determined in accordance with Attachments D and E to this Agreement, to provide
such Product to or on behalf of LESCO ("Standard Cost") plus (without
duplication of any costs included in Standard Costs) Last Leg Transportation
Costs (as provided in Attachment D). At all times during the Contract Term,
Supplier shall use all commercially reasonable efforts to minimize the costs
payable by LESCO hereunder.
(b) Competitive Pricing. Any other provision hereof to the contrary
notwithstanding, Supplier covenants and guarantees that it will not offer or
sell products to any of its direct or indirect customers (that are buying
products similar to the Products at quantity levels similar to or less than
LESCO's levels) at a purchase price (after taking into account all discounts,
allowances, incentives, rebates or other concessions, no matter the type or
form) that yields to Supplier a profit margin less than the profit margin earned
by Supplier from the sale to LESCO hereunder of the same or substantially
similar products.
5. PRODUCT DELIVERY AND ACCEPTANCE; PRODUCT RETURNS; MANDATORY ACCEPTANCES.
(A) Delivery and Acceptance; Returns. Supplier shall deliver
Conforming Goods to LESCO or its Customers at such locations (and quantities per
location) as are specified in a Conforming PO. If Supplier fails to do so,
Supplier shall pay to LESCO the Minor Make-Whole Payments and the Major
Make-Whole Payments on the terms and subject to the conditions set forth in
Attachment B to this Agreement (for avoidance of doubt, Minor Make-Whole
Payments and the Major Make-Whole Payments are designed to reasonably compensate
LESCO for Supplier's failure to perform in accordance with its obligations under
this Agreement and shall be construed as liquidated damages and not as
penalties). Except as otherwise provided in this Section 5(a) or Section 12
hereof, any return of Product must be approved in advance by Supplier, and must
be accompanied by a return authorization from Supplier. LESCO shall notify
Supplier of any obvious defects in the Products or packaging therefor that are
apparent from visual inspection thereof within five (5) Business Days of the
date of delivery to a LESCO Store. LESCO shall notify Supplier of any alleged
defects in the Products or packaging therefor within six (6) months of LESCO's
(or, if direct-shipped by Supplier to a Customer, such Customer's) receipt
thereof. LESCO shall endeavor to return to Supplier at least one (1) unopened
bag of any allegedly non-conforming Product so that it may undergo appropriate
testing. LESCO reserves the right to refuse and/or to return to Supplier any
non-Conforming Goods (or Conforming Goods delivered) in excess of the
quantities, or delivered significantly before or after the times, specified in
the applicable Conforming PO.
(B) Forced Sale and Delivery of Seasonal Products (excluding the
seasonal allocation of Non-Seasonal Products) and Certain Other Products. At any
time during the 13th to 18th days of the last month of any Season, Supplier
shall have the right, by giving notice to LESCO during such period, to sell to
LESCO any Product consisting of Inventory included within the Purchased Assets
and any Seasonal Product (but not including any seasonal allocation of
Non-Seasonal Products) produced, sourced or manufactured for LESCO or a LESCO
Customer pursuant to a Seasonal PO relating to the Season in which such notice
is given. LESCO shall be obligated to purchase such Product within three (3)
Business Days of receipt of such notice. Such notice shall contain the Product
and volume that Supplier will sell to LESCO (and that LESCO will purchase from
Supplier) pursuant to this Section 5(b). Within two (2) Business Days after
LESCO's
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receipt of such notice, LESCO shall advise Supplier of the location to which
such Product will be delivered. Absent such agreement, Supplier will use its
reasonable judgment in delivering such Product to the most cost-effective
Stores.
(C) Forced Sale of Fertilizer and Certain Other Products and Forced
Non-Seasonal Products PO. If, at any time, Supplier determines that it is
carrying an amount of Non-Seasonal Product (based on SKU), or an amount of the
Seasonal Product "Fertilizer" (based on SKU), or any Product consisting of
Inventory included within the Purchased Assets (based on SKU), that was produced
or sourced for LESCO pursuant to a Non-Seasonal Purchase Forecast (or, in the
case of such Fertilizer, a Seasonal PO) but is then greater than LESCO's
forecasted demand for the next six (6) months (per the most recent Non-Seasonal
Purchase Forecast or Seasonal Purchase Forecast), or if Supplier has not
received a Non-Seasonal Replen PO in six (6) months for a particular
Non-Seasonal Product SKU that was produced or sourced for LESCO pursuant to a
Non-Seasonal Purchase Forecast, then Supplier has the right to cease further
production of such Product and, on five (5) Business Days notice, sell to LESCO
(and LESCO shall purchase from Supplier) in accordance with Section 4 hereof all
such Product in excess of such six months forecasted demand.
6. INVOICING AND PAYMENT.
(A) Payment of Standard Cost and Margin.
(i) Payment of Standard Costs and Last Leg Transportation Costs.
Supplier will deliver to LESCO an invoice identifying the types, quantities and
applicable Standard Costs, by SKU, as well as Last Leg Transportation Costs at
each time that Products are shipped from Supplier's manufacturing plant or
Supplier's distribution center (whichever is the last point in Supplier's
shipment) to a Store, to a Customer or to such other delivery location (other
than a Supplier distribution center) as is specified in a Seasonal PO or
Non-Seasonal Replen PO, FOB such manufacturing plant or distribution center,
with freight paid. All payments for Standard Costs are due:
For Products Shipped Within the Period: Payment Terms
--------------------------------------- -------------
To and including December 31, 2006 Within 45 days
From January 1, 2007 to December 31, 2007 Within 42 days
From January 1, 2008 to December 31, 2008 Within 39 days
From January 1, 2009 to December 31, 2009 Within 36 days
From January 1, 2010 to December 31, 2010 Within 33 days
From and after January 1, 2011 Within 30 days
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in each case after date of shipment of the Product to a Store, to a Customer or
to such other delivery location as is specified in the applicable LESCO Purchase
Order. If LESCO fails to pay the invoiced cost (i.e. Standard Cost plus Last Leg
Transportation Cost) when due, it shall pay Supplier simple interest, accrued
daily, on the overdue amount at the rate of 1.5% per month accrued daily.
(ii) Payment of Margin on A/R. Supplier will calculate Margin on
A/R pursuant to Attachment F to this Agreement. If the annual aggregate Margin
on A/R for such calendar year (which shall be prorated for the period from the
Contract Date through December 31, 2005, and for any other period that is less
than 12 months) is less than {REDACTED}, LESCO shall pay to Supplier the amount
of such shortfall. If LESCO fails to pay such shortfall Margin on A/R to
Supplier when due for such year, it shall pay Supplier simple interest on the
overdue amount at the rate of {REDACTED}% per month, accrued daily.
(iii) Payment of Margin on Maintenance Capital. Supplier will
calculate the Margin on Maintenance Capital pursuant to Attachment F to this
Agreement. For such calculation, the annual Maintenance Capital shall not be
more than ${REDACTED} (provided that any amount thereof unused in any one year
may be carried over to one (1) succeeding year and provided that Supplier may
use 2007's allocation of ${REDACTED} in whole or in part in 2006). If LESCO
fails to pay the Margin on Maintenance Capital to Supplier when due, it shall
pay Supplier simple interest on the overdue amount at the rate of {REDACTED}%
per month, accrued daily.
(iv) Cost Savings; Cost Cap. Section 1 of Attachment E hereof
sets forth the mechanics and methodologies for determining and allocating
savings that will, if realized, be shared by the parties as provided therein.
Section 2 of Attachment E hereof sets forth the mechanics and methodologies for
establishing the maximum aggregate annual costs that may be charged to LESCO.
(v) Vendor Rebates. By December 15 of each year, Supplier will
provide LESCO with a reasonable estimate of anticipated third party vendor or
supplier rebates, refunds or similar payments for the immediately succeeding
year. In accordance with CAS, Supplier's Standard Cost shall be net of such
estimated rebates, refunds or payments. On the 15th of each month of such
succeeding year, LESCO shall pay Supplier 1/12th of such estimated annual
rebates. LESCO shall pay simple interest at the rate of {REDACTED}% per month,
accrued daily, in the event it fails to pay on such date. Subject to Section
6(d) hereof, within 15 days of Supplier's receipt of any such vendor or supplier
rebates, refunds or similar payments (to the extent such rebates, refunds or
payments have been netted from Standard Cost), it shall pay such amounts to
LESCO. Any amounts that remain unpaid by Supplier when due under this subsection
shall accrue simple interest at the rate of {REDACTED}% per month, accrued
daily. To the extent that actual vendor or supplier rebates, refunds or similar
payments are greater or less than the amount netted from Standard Costs, such
amounts shall be trued-up at the end of each year in connection with the true-up
of actual costs relative to Standard Costs as provided in Attachment D.
-12-
(b) Audit Rights. LESCO shall have the right to audit Supplier's books
and records annually to ensure compliance with this Agreement by Supplier in its
calculation of the Margin, Cost Savings (as defined on Schedule 1 of such
Attachment E) and Cost Cap (as defined on Schedule 1 of such Attachment E).
LESCO shall have until the end of the third (3rd) full month following receipt
of Schedule 1-A from Supplier (as provided in Attachment E) to complete any
audit of Supplier's books and records. If at any time it is determined that
Supplier has overcharged LESCO, Supplier immediately shall pay to LESCO (A) the
amount of such overcharge plus the Margin improperly paid by LESCO to Supplier
on account of such overcharge plus (B) simple interest thereon equal to
{REDACTED}% per month beginning on the date LESCO has paid the Margin, the Cost
Savings Amount (as defined on Schedule 1 of such Attachment E) or costs in
excess of the Cost Cap, as applicable, for the applicable period plus (C)
LESCO's costs and expenses incurred in conducting such an audit.
(c) Sales Tax Exemptions. LESCO shall provide Supplier with
appropriate sales tax exemption and/or resale exemption certificates. If LESCO
fails to provide any such certificates, then Supplier shall add applicable sales
tax(es) to the invoices described in Section 6(a)(i) hereof, and the Historical
Metric shall be adjusted upward under Schedule E to reflect such sales tax.
(d) Financial Standards.
x. XXXXX shall:
A. During the period commencing with the Contract Date to and
including December 31, 2007, distribute to its shareholders (whether in the form
of dividends or distributions or through the repurchase of its shares, in each
case whether for cash or other property) no more than an aggregate of
Twenty-Five Million Dollars ($25,000,000);
B. During the period commencing with the Contract Date to and
including December 31, 2007, make no more than Two Million Dollars ($2,000,000)
per annum of Capital Expenditures for capital needs other than to finance new
Stores or the remodeling of existing Stores;
C. During the period commencing with the Contract Date to and
including December 31, 2007, maintain minimum EBITDA, calculated on a trailing
twelve-month basis as of the end of each fiscal month, as follows: an amount
equal to the sum of x) 1) $6,000,000 to and including June 30, 2006, and 2)
$12,000,000 from July 1, 2006 to and including December 31, 2007 plus y) the
amount by which Capital Expenditures for the given period exceed $3,000,000;
D. During the period commencing on January 1, 2008 and continuing
through the Contract Term, maintain a Fixed Charge Coverage Ratio of at least
1.0 to 1.0, determined on a trailing twelve-month basis as of the end of each
fiscal month;
E. During the Contract Term, maintain a Senior Debt Ratio not to
exceed the applicable ratio set forth in the following table:
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Maximum
Determination Date Senior Debt Ratio
------------------ -----------------
At all times from (i) the Contract 0.60 to 1.00
Date to and including
June 30, 2006 and (ii) January 1
of each subsequent Contract Year
to and including June 30 of each
subsequent Contract Year
Commencing July 1, 2006, at all 0.40 to 1.00
times from July 1 of each Contract
Year to and including December 31
of each Contract Year
In addition, aggregate Senior Debt shall not exceed $30,000,000 at any time
following the Contract Date to and including June 30, 2006.
F. During the Contract Term, maintain Tangible Net Worth equal to, or
greater than $20,000,000 though and including June 30, 2006 (and $25,000,000
thereafter) less,
i) to and including June 30, 2006, the amount of dividends,
distributions, or stock buybacks in excess of $10,000,000 incurred between the
Contract Date and the date of calculation, or
ii) from July 1, 2006 to and including December 31, 2006, the
amount of dividends, distributions, or stock buybacks in excess of $17,500,000
incurred between the Contract Date and the date of calculation; and
G. Have issued to Supplier under LESCO's senior credit facility a
stand-by letter of credit in the original face amount of Ten Million Dollars
($10,000,000) (the "L/C"), the costs of issuance of which, up to 125 basis
points of the face amount, are to be paid, and recognized as interest expense,
by Supplier with the remainder, if any, to be paid by LESCO.
ii. If LESCO fails to maintain any of the financial standards set forth in
Section 6(d)(i), then effective immediately upon such failure (but not before):
A. Supplier shall be permitted to reduce the then-effective payment
terms (as specified in Section 6(a) hereof) by up to one-half, in Supplier's
sole discretion, rounding down to the next whole number (e.g., if the payment
terms are then 45 days, the revised payment terms would be 22 days); provided,
however, that:
1. No more than once in any twelve month period, such payment
terms shall be modified as specified in this sub-section at such time as the
failure under section 6(d)(ii) is cured within 5 days (and, if the L/C is drawn,
it is replaced to the full amount at no cost to Supplier), as determined on a
pro forma basis (excluding any funded Senior Debt incurred in order to fund any
payment required by Section 6(d)(ii)(B) hereof ("New Senior Debt"), and there
are then no other failures under Section 6(d)(ii). Payment terms shall increase
(rounding up to the next whole number) on a basis directly proportionate with
LESCO's ability to maintain the retirement of the New Senior Debt, as determined
by Supplier in good faith, to the extent that such retirement is not funded by
additional Senior
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Debt (but not in excess of the applicable level that would otherwise be
applicable pursuant to Section 6(a) hereof);
2. Such reduced payment terms immediately shall revert to the
original levels that would apply had such failure not occurred, if and when
LESCO is in compliance with the standards set forth in Section 6(d)(i) hereof at
all times for two (2) consecutive months (and, if the L/C is drawn, it is
replaced to the full amount at no cost to Supplier).
B. If Supplier so reduces the then-effective payment terms, then LESCO
shall make a payment to Supplier equal to the dollar amount of the accounts
payable from LESCO to Supplier that become past due on account of such
reduction. Such payment shall be funded:
1. First, by a set-off against the vendor rebate amount payable
by Supplier to LESCO pursuant to Section 6(a)(v) hereof, so long as Supplier is
legally entitled to collection of such vendor rebate (subject to the no offset
letter attached to the Purchase Agreement as Exhibit E);
2. Second, by a payment in immediately available funds, whether
from cash on hand, a draw upon LESCO's senior secured credit facility or
otherwise; and
3. Third, by a draw against the L/C.
iii. Supplier is hereby granted a second priority security interest in all
of LESCO's money, accounts, deposit accounts, inventory, equipment, goods,
fixtures, investment property, documents, instruments, chattel paper, commercial
tort claims, letters of credit, letter-of-credit rights, general intangibles,
and supporting obligations, each as defined in the Uniform Commercial Code,
intellectual property (and proceeds of each of the foregoing) (collectively, the
"Collateral"), subject to the express condition subsequent that Supplier and
LESCO's senior secured lender, PNC Bank, National Association, negotiate and
enter into an intercreditor agreement that provides that Supplier may not take
any enforcement action(s) against the Collateral with regard to such security
interest (other than the filing of appropriate financing statements) unless and
until all of LESCO's Senior Debt has been indefeasibly repaid in full, but that
Supplier may accept and retain all payments required under this Agreement.
Supplier is hereby authorized to file all financing statements necessary or
appropriate to perfect the foregoing security interest. NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO SUPPLIER
PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE
SUPPLIER HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT,
DATED AS OF ___________, 2005 (AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE "INTERCREDITOR AGREEMENT"), AMONG SUPPLIER, LESCO, THE
OTHER BORROWERS (AS DEFINED THEREIN) PARTY THERETO, AND PNC BANK, NATIONAL
ASSOCIATION AS CREDIT AGENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF
THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR
AGREEMENT SHALL GOVERN.
iv. During the Contract Term, at no time will Supplier and LESCO permit the
aggregate amount of trade payables owing from LESCO to Supplier pursuant to this
Agreement to exceed Fifty Million Dollars ($50,000,000) (or such other amount as
Supplier and LESCO may otherwise mutually agree in writing) (or such lower
amount that results from payment terms being reduced in accordance with Section
6(d)(ii)(A) hereof).
v. For purposes of this Section 6(d):
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A. "Capital Expenditures" means, without duplication, any expenditure
for any purchase or other acquisition of any asset, including by way of stock
purchase, merger or other reorganization, which would be classified as a fixed
or capital asset on a consolidated balance sheet of LESCO and its subsidiaries
prepared in accordance with GAAP.
B. "EBITDA" means Net Income plus, to the extent deducted from
revenues in determining Net Income, without duplication (1) Interest Expense,
(2) expense for taxes paid or accrued net of tax refunds, (3) depreciation, (4)
amortization and other non-cash charges (other than non-cash losses (as
determined in accordance with GAAP) incurred in the ordinary course of
business), (5) non-cash losses (as determined in accordance with GAAP) incurred
other than in the ordinary course of business and (6) one-time transaction costs
incurred in accordance with the consummation of the transactions contemplated by
this Agreement and the Purchase Agreement up to $6,000,000, minus, to the extent
included in Net Income, gains (as determined in accordance with GAAP) realized
other than in the ordinary course of business, all calculated for LESCO and its
subsidiaries on a consolidated basis.
C. "Fixed Charge Coverage Ratio" means the ratio of (1) EBITDA to (2)
Fixed Charges, all calculated for LESCO and its subsidiaries on a consolidated
basis in accordance with GAAP.
D. "Fixed Charges" means, with reference to any period, without
duplication, cash Interest Expense, plus income taxes paid in cash during such
period, plus Capital Expenditures made during such period, plus dividends,
distributions and stock repurchases, in each case whether funded in cash or
other property.
E. "Interest Expense" means, with reference to any period, the
interest expense (including that attributable to capital lease obligations) of
LESCO and its subsidiaries for such period with respect to all outstanding
monetary indebtedness of LESCO and its subsidiaries, calculated on a
consolidated basis for LESCO and its subsidiaries for such period in accordance
with GAAP.
F. "Net Income" means, for any period, the consolidated net income (or
loss) of LESCO and its subsidiaries, determined on a consolidated basis in
accordance with GAAP.
G. "Senior Debt" means, without duplication, (1) the aggregate
outstanding principal amount of all of LESCO's indebtedness for borrowed money,
plus interest accrued thereon, evidenced by notes, bonds, debentures,
guaranties, letters of credit or similar evidences of indebtedness that has a
lien priority senior to the lien for indebtedness of LESCO to Supplier
hereunder, and (2) all obligations under capital leases; provided, that Senior
Debt shall include neither letters of credit issued on behalf of LESCO up to a
maximum aggregate face amount of $3,000,000 nor the L/C.
H. "Senior Debt Ratio" means the ratio of (1) Senior Debt to (2)
Senior Debt plus Tangible Net Worth.
I. "Tangible Net Worth" means all amounts which would be included
under shareholders' equity (less goodwill and other intangible assets) on a
balance sheet calculated on a consolidated basis for LESCO and its subsidiaries
for such period in accordance with GAAP.
7. RAW MATERIALS AND PACKAGING.
(A) Purchasing of Raw Materials and Packaging. During the Transitional
Period, to the extent available, Supplier will manufacture or source Products
utilizing raw material supply lines and purchase orders in place for LESCO as of
the Contract Date. In any event, Supplier
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shall be responsible for obtaining all raw materials and packaging in quantities
sufficient to allow it to manufacture Products in conformity with the Forecasts,
and may do so in such a manner as Supplier determines would be more commercially
reasonable. Title and risk of loss with respect to all raw materials and
packaging shall be with Supplier. In the event that LESCO's existing supply
agreements and/or purchase orders require that LESCO be the purchaser and/or
recipient of the subject raw materials, Supplier and LESCO will work out a
mutually agreeable arrangement with respect to Supplier's payment therefor and
receipt thereof consistent with the terms hereof. For Products manufactured or
sourced for LESCO hereunder, Supplier shall use commercially reasonable efforts
to enter into forward contracts on terms and conditions (including lengths), and
with suppliers, reasonably acceptable to LESCO and on a basis consistent with
each Semi-Annual Forecast in order to fix the price of raw materials for prices
and time frames mutually acceptable to the parties. In addition, the parties
shall discuss acquiring raw materials on the spot market and/or establishing
other hedging mechanisms under mutually beneficial circumstances. Seller and
LESCO shall cooperate in the timing and quantity of raw material purchases in
order to maximize vendor rebates. So long as such raw materials are being
acquired solely for Products manufactured or sourced for LESCO, Supplier will
endeavor to have all supply agreements include LESCO as a party (or indicate
that LESCO is a third-party beneficiary thereof).
(B) LESCO Branded Products; License to Use Certain of LESCO's
Intellectual Property. All Products shall be packaged by Supplier and
private-labeled under the LESCO(R) name or as otherwise directed by LESCO.
During the Contract Term, LESCO grants to Supplier a non-exclusive,
royalty-free, limited term license to use, without the right to sublicense,
assign or otherwise convey, LESCO's trademarks, service marks and/or trade dress
for the sole purpose of manufacturing or sourcing the Products, or displaying
LESCO's intellectual property on such Products and/or packaging for Products in
a manner that will cause it to be identified as LESCO's intellectual property.
LESCO shall provide Supplier with facsimiles of the approved form of LESCO's
intellectual property and packaging, and only LESCO-approved packaging may be
used. During the Contract Term, LESCO hereby grants to Supplier a non-exclusive,
royalty-free, limited-term license, with the right to make derivative works, to
use LESCO's patent no. 5,478,375 - "Sealants for fertilizer compositions
containing natural waxes" in the manufacture or distribution of the Products or
the operations ancillary thereto. Upon termination hereof pursuant to Section 8,
and subject to Supplier's payment to LESCO of a royalty equal to ${REDACTED} per
ton produced (the "Royalty Fee"), LESCO hereby grants to Supplier a
non-exclusive, perpetual license, with the right to make derivative works, to
use LESCO's patent no. 5,478,375 - "Sealants for fertilizer compositions
containing natural waxes" in the manufacture or distribution of the Products or
the operations ancillary thereto (the "Patent"); provided however that so long
as Supplier is producing or sourcing Products for LESCO, the Royalty Fee will be
waived. In the event this Agreement is terminated pursuant to Section 8,
Supplier is not otherwise producing or sourcing Products for LESCO and Supplier
does not license the Patent from LESCO, LESCO shall reimburse Supplier for all
reasonable costs and expenses incurred by Supplier, up to a maximum of
{REDACTED}, to convert its manufacturing facilities to enable Supplier to
produce substantially similar products as those produced with the Patent using
an alternative process or technology.
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(C) License to Use Certain of Supplier's Intellectual Property. During
the Contract Term, Supplier grants to LESCO a non-exclusive, royalty-free,
limited term license to use, without the right to sublicense, assign or
otherwise convey, (i) Supplier's Intellectual Property developed pursuant to
Section 3(e)(i) hereof and (ii) Supplier's trademarks, service marks and/or
trade dress which shall be used to identify the Products as being "manufactured
for LESCO [or its designee] by [Supplier]."
8. TERM AND TERMINATION.
(A) Contract Term. The term hereof shall be perpetual, commencing on
the Contract Date (the "Contract Term"), subject to termination as provided in
this Section 8.
(B) Termination Upon Three Years' Prior Notice. At any time on or
after the second anniversary of the Contract Date, either party may give the
other party written notice of its desire to terminate this Agreement (the
"Termination Notice"), provided that the desired effective date of termination
(the "Effective Termination Date") may not be less than three (3) years after
the giving of such notice. Upon giving of a Termination Notice, this Agreement
shall, except as modified by Section 8(e) hereof, continue in its then-present
form for the duration of such three-year notice period (the "Run Off Period")
and shall terminate on the Effective Termination Date specified in the
Termination Notice.
(C) Termination by LESCO. LESCO may terminate this Agreement
immediately by written notice to Supplier (i) if, pursuant to Section 11, there
is a Force Majeure period continuing for more than sixty (60) calendar days, or
(ii) if there is an event triggering the right by LESCO to collect the payment
of a Major Make-Whole Payment of {REDACTED} or more (either alone or cumulative
with all other Minor Make-Whole Payments and Major Make-Whole Payments paid or
payable to LESCO at any time during under this Agreement), provided that LESCO
is not then in material breach hereof.
(D) Termination by Either Party Without Notice. A party may terminate
this Agreement immediately, without notice: (i) if the other party becomes
insolvent; (ii) is generally not paying its material debts as they become due;
(iii) if the other party makes a general assignment for the benefit of
creditors; (iv) if the other party is the subject of any voluntary or
involuntary case or proceedings under the federal bankruptcy laws or other
applicable laws of any jurisdiction regarding bankruptcy, insolvency,
reorganization, adjustment of debt or other forms of relief for debtors; (v) if
the other party has a receiver, trustee, liquidator, assignee, custodian or
similar official appointed for it or for any substantial part of its property;
(vi) takes any action to liquidate, dissolve or cease doing business; or (vii)
so long as the terminating party is not then in material breach hereof, if the
other party sells, assigns or transfers a substantial part of its assets, or
undergoes any merger, consolidation or other substantial change, direct or
indirect, in its ownership or control, the effect of which would be a violation
of the provisions on non-assignability set forth in Section 18(a) hereof.
(E) Effect of Termination.
(i) As of the Effective Termination Date (as opposed to the date
of giving of Termination Notice) hereof (if terminated pursuant to Section 8(b)
hereof), or immediately upon termination hereof (if pursuant to Sections 8(c) or
8(d) hereof), all amounts due from one party to the other shall, at the option
of the non-terminating party, become immediately due and payable, together with
interest thereon from the Effective Termination Date, at the simple
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interest rate of {REDACTED}% per month, accrued daily. Termination shall not
affect the parties' respective rights and obligations or any amounts payable by
such party established or relating to periods prior to the Effective Termination
Date.
(ii) Supplier Termination - LESCO Purchase Option. In addition to
the amounts payable under Section 8(e)(i) hereof, in the event that Supplier
provides a Termination Notice or if LESCO terminates this Agreement pursuant to
Section 8(c), LESCO shall have the right (the "Purchase Option"), by providing
notice to Supplier within 180 days (the "Option Notice Period") of LESCO's
receipt (or giving) of a Termination Notice (the "Option Exercise Notice"), to
acquire and assume within an additional sixty (60) days (such 240 day period,
the "Option Period"),:
(1) all of Supplier's plant, property and equipment used to
produce and distribute Products to or for LESCO (and, if LESCO so desires, all
of Supplier's other plant, property and equipment) for an amount equal to the
higher of (a) the aggregate undepreciated portion of all Maintenance Capital on
the date of the Termination Notice determined in accordance with CAS and (b) the
fair market value of such assets as of the date of such Termination Notice;
(2) all of Supplier's inventory (including raw material,
work in process and finished Products) purchased or produced for LESCO pursuant
to or for the purpose of fulfilling the PO Forecast or Non-Seasonal Purchase
Forecast (and, if LESCO so desires, all of Supplier's other inventory), for an
amount equal to Supplier's actual costs to produce such inventory plus
distribution costs (but subject to the Cost Cap) as of the date of such
Termination Notice;
(3) all of Supplier's employees, contracts, and other assets
required for or used primarily in the manufacture or distribution of the
Products (and, if LESCO so desires, all of Supplier's other employees,
contracts, and other assets) (and LESCO shall assume all related obligations and
liabilities thereto or thereunder (other than any obligations arising due to
Supplier's breach)).
LESCO's Purchase Option shall be completed at the end of the Option Period and
shall be exercisable only in whole or not at all. If LESCO fails to exercise and
complete such Purchase Option by the end of the Option Period, Supplier shall be
free to continue to hold its assets and/or inventory or sell them to any third
party in Supplier's discretion. Upon consummation of the Purchase Option, this
Agreement will terminate. The Purchase Option is freely assignable by LESCO.
For purposes of this Section 8(e)(ii), the fair market value of
the property, plant and equipment and other assets acquired under this
subsection shall be an amount agreed upon by the parties, provided that if the
parties are not able to agree upon a fair market value within 30 days of the
beginning of the Option Period, the parties shall retain a qualified independent
investment banking firm mutually acceptable to the parties to determine the fair
market value of such assets, which fair market value shall be determined by
reference to the capacity of such assets and the most recent Seasonal Purchase
Forecast, Non-Seasonal Purchase Forecast and any other customer relationships of
Supplier that will be acquired by LESCO.
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(iii) Supplier Termination - No Exercise of Purchase Option. In
the event that Supplier issues a Termination Notice and LESCO does not exercise
the Purchase Option within the Option Notice period or otherwise complete the
Purchase Option within the Option Period, then:
(1) upon termination of the Option Period, LESCO shall have
the right to approve all of Supplier's purchasing of raw materials and all
production and sourcing of Products;
(2) the parties must mutually agree as to the need for any
Maintenance Capital and, if so, the funding thereof;
(3) during the last six (6) months of the Run Off Period,
the parties will work together to wind down the purchase of, and to liquidate,
all inventory; and
(4) in addition to any other amounts payable hereunder,
LESCO shall purchase, by or before the Effective Termination Date hereof, all of
Supplier's inventory (including raw material, work in process and finished
Products) purchased or produced for LESCO pursuant to or for the purpose of
fulfilling a Forecast, for an amount equal to Supplier's actual costs to produce
such inventory plus distribution costs (but subject to the Cost Cap) as of the
Effective Termination Date.
(iv) LESCO Termination. In the event that LESCO issues a
Termination Notice, then, in addition to any other amounts payable hereunder,
LESCO shall purchase all of Supplier's inventory (including raw material, work
in process and finished Products) purchased or produced for LESCO pursuant to or
for the purpose of fulfilling the PO Forecast or Non-Seasonal Purchase Forecast,
on or before the date that is three (3) months before the Effective Termination
Date, for an amount equal to Supplier's actual costs to produce such inventory
plus distribution costs (but subject to the Cost Cap) as of the Effective
Termination Date.
In addition, LESCO shall pay Supplier an amount (the "Termination
Payment") equal to:
Termination Notice Given
by LESCO Within the Period: Payment
--------------------------- -----------
After the second anniversary of the
Contract Date to and including the
third anniversary of the Contract Date ${REDACTED}
After the third anniversary of the
Contract Date to and including the
fourth anniversary of the Contract Date ${REDACTED}
After the fourth anniversary of the
Contract Date to and including the
fifth anniversary of the Contract Date ${REDACTED}
After the fifth anniversary of the
Contract Date to and including the
sixth anniversary of the Contract Date ${REDACTED}
After the sixth anniversary of the
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Contract Date to and including the
seventh anniversary of the Contract Date ${REDACTED}
After the seventh anniversary of the
Contract Date ${REDACTED}
The Termination Payment shall be paid in three equal installments, each payable
at the end of each successive twelve (12) month period following the date that
LESCO provides the Termination Notice.
In addition:
(1) LESCO shall have the right to approve all of Supplier's
purchasing of raw materials and all production and sourcing of Products;
(2) the parties must mutually agree as to the need for any
Maintenance Capital and, if so, the funding thereof; and
(3) during the last six (6) months of the Run Off Period,
the parties will work together to wind down the purchase of, and to liquidate,
all inventory.
9. LIMITED WARRANTIES.
(A) Warranties. Supplier warrants that it will convey to LESCO (i)
Conforming Goods and (ii) subject to Section 6(d) hereof, marketable title to
all Products delivered to LESCO, free from all liens and encumbrances created by
or arising through Supplier. To the extent that any of Supplier's suppliers
offer warranties, Supplier will endeavor to have such warranties flow through to
and cover LESCO and its Customers.
(B) Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION
9, SUPPLIER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PRODUCTS, OR THEIR CONDITION, EFFECTIVENESS, QUALITY OR PERFORMANCE.
(C) Indemnification. Any provision hereof to the contrary
notwithstanding, Supplier agrees to indemnify, defend and hold harmless LESCO,
its subsidiaries, affiliates, successors and assigns, and their respective
directors, officers, employees, agents and representatives (collectively, the
"LESCO Indemnified Parties"), from and against any and all losses, claims, costs
and expenses of any nature arising from third party claims against LESCO or the
LESCO Indemnified Parties (including without limitation attorneys' fees) arising
out of or relating to or resulting in any way from any actual or alleged
personal injury (including death), injury or damage to property (including, but
not limited to, consequential damages arising from damaged turf or lost profits
due to an end-customer's lawn being unusable during repair of same) that
results, or is claimed to result, in whole or part, from any actual or alleged
(i) claims for infringement of any patent or intellectual property right with
respect to the Products or any trademarks, trade names or other intellectual
property claimed to be owned by or licensed to Supplier (other than those
licensed to Supplier by or through LESCO or otherwise acquired by Supplier from
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LESCO), (ii) breach of the warranties made by Supplier pursuant to Section 9(a)
hereof, or (iii) failure of Supplier to fully and completely perform its
obligations under this Agreement.
(D) Limitation of Liability. OTHER THAN AS SET FORTH HEREIN, UNDER NO
CIRCUMSTANCES WILL SUPPLIER BE LIABLE TO ANY PERSON INCLUDING LESCO FOR ANY
INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF
ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUES, BUSINESS OR PROFITS,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT
LIABILITY, OR OTHERWISE, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
10. REMEDIES AND LIMITATIONS.
(A) General Remedies. Subject to the limitations in this Agreement
(including the limitations in Attachment B hereto), all rights and remedies
provided herein or permitted by law or in equity are cumulative, not exclusive,
and may be enforced concurrently or individually from time to time.
(B) Attorney's Fees. In the event of a dispute arising out of or in
connection with this Agreement, the party prevailing in such dispute shall be
entitled to its reasonable costs and attorneys' fees, in addition to all other
proper relief.
11. EXCUSED DELAYS. Neither party shall be responsible to the other for any
failure or delay, in whole or in part, to perform any obligations hereunder, to
the extent and for the length of time, that performance is rendered impossible
due to an event or occurrence beyond the reasonable control of such party,
including such things as acts of God, actions by any government authority
(whether valid or invalid), riots, public insurrections, wars, sabotage,
terrorism, floods, fires, windstorms, natural disasters, explosions, failure of
or interruptions in transportation, telecommunications or data transmission
systems, and other circumstances of substantially similar character beyond the
control of, and not reasonably foreseeable by, the affected party (collectively,
"Force Majeure").
Any party so affected shall (i) use all reasonable efforts to minimize the
effects thereof and (ii) promptly notify the other party in writing of the Force
Majeure, the effect of the Force Majeure on such party's ability to perform its
obligations hereunder, and the prospects for that party's future performance,
and shall respond promptly and fully in writing to the other party's requests
for information about such matters. The affected party shall promptly resume
performance after it is no longer subject to Force Majeure.
12. PRODUCT RECALLS. Unless the Product(s) subject to recall were
Conforming Goods:
(a) in the event any Product becomes subject to a corrective action
plan, consent agreement or order, whether voluntary or by mandate of any final
order of any federal, state or local government agency, requiring recall,
replacement, cancellation or suspension of registration, stop sale, stop use,
removal, seizure of the Product or the refund of purchase price of the Product,
or any final action similar to the foregoing actions, Supplier agrees to accept
return
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of all Products to which such actions apply or would apply and to credit LESCO
with the invoice cost of such Products plus the expenses of shipment;
(b) each affected Product shall be replaced or refunded by Supplier
regardless of ownership, and regardless of whether the units have been sold to
customers; and
(c) all freight, packaging and shipping charges shall be borne by
Supplier.
In the event of any judicial or administrative action or proceeding
(voluntary or involuntary), Supplier will provide LESCO with a form of the
bulletin or notice of such proceeding and LESCO shall assist in identifying such
purchasers and make a reasonable effort to notify purchasers of the affected
Products.
13. MAINTENANCE OF PRODUCTION ASSETS. During the Contract Term, (i) except
as otherwise agreed by LESCO, Supplier shall use the Purchased Assets only for
commercial or industrial purposes and shall not make any material change in or
to the character, nature or use of the Purchased Assets that will or might have
a material adverse impact on LESCO, and (ii) except to the extent the provisions
of Section 8(e)(iii)(2) or 8(e)(iv)(2) apply, Supplier shall maintain the
Purchased Assets (or such other assets as are being utilized to manufacture the
Products) in reasonable condition (subject to ordinary wear and tear) sufficient
to manufacture the Products in accordance with the Specifications and Quality
Standards.
14. INSURANCE. Supplier agrees to maintain at least the following insurance
under this Agreement which, in each case, shall include insurer's waiver of
subrogation and an endorsement naming LESCO, its subsidiaries, affiliates,
successors and assigns, and their respective officers, directors and employees,
as additional insured(s). The following minimum insurance will be procured and
maintained in force and will not be cancelled or not renewed nor restrictive
modifications added, until at least thirty (30) calendar days prior written
notice has been given to LESCO:
(A) Comprehensive General Liability Insurance (including, without
limitation, bodily injury, personal injury liability, property damage
liability, products liability and completed and operations liability
coverage):
Each Occurrence $1,000,000
General Aggregate $2,000,000
(B) Umbrella Liability Insurance:
Each Occurrence $25,000,000
General Aggregate $25,000,000
(C) Excess liability (over and above Comprehensive General Liability
Insurance and Umbrella Liability Insurance):
Each Occurrence $10,000,000
General Aggregate $10,000,000
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Prior to the commencement hereof and at least annually thereafter, Supplier
shall provide a Certificate of Insurance to LESCO evidencing the coverage
required by this provision.
15. CONFIDENTIAL INFORMATION. In the course hereof, either party may
disclose information that is (a) stamped or otherwise marked as being
confidential, or (b) if disclosed in oral form, identified as confidential at
the time of oral disclosure, or (c) whether disclosed orally or in writing, is
information that a reasonable person would consider to be proprietary or
confidential in nature, including any information concerning such party's
customers, products, dealers, prices, suppliers, security procedures or business
processes ("Confidential Information"). Each party ("Recipient") shall hold the
Confidential Information of the other party ("Owner") in strict confidence, and
except as previously authorized in writing by the Owner, shall not publish or
disclose the Confidential Information to anyone other than Recipient's employees
or agents on a need-to-know basis, and shall use the Owner's Confidential
Information solely for performance hereof. This requirement shall not apply to
any part of the Confidential Information that: (i) becomes generally known to
the public through no wrongful act or omission on the Recipient's part; (ii) is
approved for release by Owner's written authorization; (iii) is clearly
demonstrated by Recipient to have been independently developed by Recipient
after the date hereof without access to the Owner's Confidential Information; or
(iv) is required to be disclosed by order of a court or governmental body or by
applicable law, provided that the Recipient shall promptly notify Owner of such
intended disclosure in order to allow Owner to seek a protective order or other
remedy (in which case Recipient shall fully cooperate with and assist Owner in
obtaining such a protective order or other remedy). Any provisions of this
Section 15 to the contrary notwithstanding, LESCO shall have the right to file a
copy hereof with any applicable commission or governmental agency to the extent
necessary, in Seller's good faith opinion, to comply with the disclosure laws or
regulations thereof (including any reporting requirement of the SEC), or any
listing requirement of any stock exchange, including NASDAQ, applicable to
LESCO; provided that LESCO shall also file a redacted document (redacting such
information pertaining to the Margin as is, in the opinion of LESCO's counsel,
reasonable), and file a confidential treatment request with respect to such
redacted document as part of any such filing.
16. NOTICES. All notices and communications required under this Agreement
shall be in writing and shall be sent by hand, by registered or certified mail
return receipt requested, by overnight courier service maintaining records of
receipt, or by facsimile transmission with confirmation of successful
transmission of such facsimile, and shall be effective on the earlier of receipt
or (a) the date delivered by hand, or (b) the third Business Day after being
mailed, or (c) the following Business Day if sent by overnight courier service,
or (d) upon receipt of successful transmission confirmation, if sent by
facsimile. All notices shall be addressed to the parties at the addresses set
forth with the signatures to this Agreement, until changed by notice pursuant to
this Section 16.
17. CERTAIN PERSONNEL MATTERS.
(A) Employees on Supplier's Premises.
At its own cost and expense, LESCO may upon 72 hours prior notice during
business hours, reasonably inspect any or all of Supplier's locations and
production lines.
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(B) Non-Solicitation and Non-Hire of Employees.
Neither party nor their respective representatives shall, without the prior
written consent of the other party, directly or indirectly solicit for
employment, or employ, any person who was or is an employee of the other party
within twelve (12) months of the date of the desired employment commencement
date for such person; provided that this Section 17(b) shall not apply with
respect to the Transferred Employees (as defined in the Purchase Agreement) or
to Xxxxx O'Block. The foregoing provision shall survive for one (1) year beyond
the date hereof.
(C) Engineering Personnel.
During the Contract Term, LESCO will provide to Supplier up to 20 hours per
week of services and support from LESCO's engineering personnel. In exchange
therefore, during the Contract Term, Supplier will provide to LESCO up to 12
hours per week of services and support from Supplier's environmental health and
safety personnel. The provision of such services shall not have any effect on
the pricing or payments charged to or made by either party hereunder.
18. MISCELLANEOUS.
(A) Assignment. Neither party may assign its rights and/or obligations
under this Agreement, nor may Supplier sub-contract the production of the
Products to be delivered by it hereunder, without the express prior written
consent of the other party, which consent may be withheld in its sole
discretion. The foregoing notwithstanding:
(i) either party may assign its rights and/or obligations under
this Agreement (including collateral assignments) to a financing source (if
Supplier is the assignor, it will ensure that any and all financing arrangements
with its secured creditors contain an express grant to LESCO of the first right
to buy such creditor's secured position in Supplier upon a default giving rise
to acceleration of such indebtedness or upon foreclosure (or sale in lieu of
foreclosure) by such creditor);
(ii) either party may assign its rights and/or obligations under
this Agreement in connection with a sale, assignment or transfer of a
substantial part of its assets, or if the assignee undergoes a merger,
consolidation or other substantial change, direct or indirect, in its ownership
or control or is involved in any other extraordinary corporate event, so long as
the assignee expressly agrees in a writing addressed to the non-assigning party
that it assumes all of the assigning party's obligations under this Agreement.
In the event of such a permitted assignment, this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns. This Agreement is for the sole
benefit of the parties hereto, and their successors and permitted assigns, and
shall not be construed as conferring any rights on any other persons.
(B) Survival of Obligations. The parties' respective rights and
obligations under Sections 4, 5, 6, 7, 8, 9, 12, and 15 shall survive the
expiration or termination hereof until the then obligations thereunder are
complete. The last sentence of Section 7(b) shall survive any termination
hereof. Section 17(b) shall survive for one year after expiration or termination
hereof.
(C) Governing Law; Jurisdiction; Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of Ohio
(without regard to its rules on
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conflicts of laws), and the United States of America. The Convention on the
International Sale of Goods shall not apply.
(D) General Construction, Defined Terms, Etc. The captions in this
Agreement are for convenience only, and in no way limit or amplify the
provisions hereof. All Attachments attached hereto are by reference made a part
hereof, and this Agreement governs in case of any conflict. The terms "includes"
and "including" and words of similar import are inclusive and not exclusive
terms, and are not intended to create any limitation. The words "hereof",
"herein" and "hereunder" and words of similar import in this Agreement refer to
this Agreement as a whole and not to any particular provision hereof, and
references to Sections, subsections and Attachments are to this Agreement unless
otherwise specified. All defined terms apply to both singular and plural forms,
and all references to any gender include all other genders. All defined terms
and references as to any agreements, notes, instruments, certificates or other
documents shall be deemed to refer to such documents as they may from time to
time be amended, modified, renewed, extended, replaced, restated, supplemented
or substituted. Unless otherwise provided, all references to statutes and
related regulations shall include any amendments thereof and any successor
statutes and regulations.
(E) Invalid Provisions. If any provision hereof is held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof unless it
materially impairs the ability of the parties to consummate the transactions
contemplated by this Agreement.
(F) Amendments and Waivers. This Agreement can only be amended by a
written agreement signed by both parties, and its terms can only be waived by a
writing signed by the party to be charged. No waivers of either party's rights
or remedies hereunder shall be implied, whether from any custom or course of
dealing or any delay or failure in the exercise of a party's rights and remedies
hereunder or otherwise. Any waiver granted by a party shall be specifically
limited to the particular circumstances, and shall not obligate such party to
grant any further, similar, or other waivers.
(G) Relationship of the Parties. The relationship of Supplier and
LESCO established by this Agreement is that of independent contractor, and
nothing contained in the Agreement shall be deemed or construed by the parties
or by any third party as creating the relationship of principal and agent, a
franchise, a "Business Opportunity" as that term is used in Ohio Rev. Code,
Title 13, Section 1334.01 et seq., a partnership or joint venture or exclusive
dealing between the Parties. LESCO acknowledges that it has its own marketing
plan for the Products and that it is not adopting any business format of
Supplier except the use of Supplier's display units and other miscellaneous
marketing materials.
(H) Counterparts. This Agreement may be executed in multiple
counterparts (including by facsimile), in which event this Agreement shall be
effective as of the Contract Date when both parties have executed and delivered
separate conforming counterparts. Both counterparts shall together constitute a
single agreement.
19. ENTIRE AGREEMENT. This Agreement and the Purchase Agreement constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior proposals, communications, negotiations, understandings
and agreements, written or oral, between the parties with respect to the subject
matter hereof. No different or additional terms in
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any LESCO Purchase Order, invoice, acceptance or other writing sent by either
party shall become part hereof unless the parties so agree in a signed writing.
[Remainder of page intentionally left blank. Signatures on next page.]
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This Long-Term Supply Agreement is made and entered into by Supplier and
LESCO, effective as of the Contract Date.
SUPPLIER: LESCO:
TURF CARE SUPPLY CORP. LESCO, INC.
By: /s/ Xxxx Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------- ------------------------------------
Title: Vice President Title: Chief Financial Officer
Date: October 1, 2005 Date: October 1, 2005
Supplier's Notice Address: LESCO's Notice Address:
Turf Care Supply Corp. LESCO, Inc.
000 X. Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 0000 Xxxx 0xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Suite 1300
Attention: Xxx Xxxxxxxx, Esq. Xxxxxxxxx, Xxxx 00000-0000
Telecopy No: (000) 000-0000 Attention: Xxxxxxx Xxxxxxxxxx, CFO
Telephone No: (000) 000-0000 Telecopy No: (000) 000-0000
Telephone No: (000) 000-0000
WITH COPY TO:
LESCO, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Legal department
Telecopy No: (000) 000-0000
Telephone No: (000) 000-0000
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ATTACHMENT A
EXISTING PRODUCTS
LIST OF SEASONS AND APPLICABLE SELLING PERIODS:
SEASON SELLING PERIOD
------ --------------
Fertilizer February 1 - November 30
Pre - Emergent February 1 - May 31
Post - Emergent February 1 - July 31
(Atrazine season: September 1 - April 30)
Insecticides April 1 - August 31
Seed March 1 - June 30 and August 1 - November 30
Ice Melt November 1 - March 31
Fungicide May 1 - September 30 and November 1 - December 31
Products in all seasons listed above are non-seasonal with seasonal allocation
with the exception of Ice Melt which is purely seasonal.
Current list of Seasonal Products and seasonal allocation of Non-Seasonal
Products - see attachment A.1.
PURCHASE ORDER (INITIAL STORE ALLOCATION) SCHEDULE FOR SEASONAL PRODUCTS:
Fertilizer (considered in-season purchase orders)
Pre - Emergent October 1
Post - Emergent November 1
(Atrazine - considered in season purchase orders)
Insecticides December 1
Seed Spring - January 1; Fall - June 1
Ice Melt September 1
Fungicide Spring - April 1; Fall Early Order - October 1
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[ATTACHMENT A.1 TO ATTACHMENT A FOLLOWS]
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ATTACHMENT B
PENALTIES
1. MAJOR MAKE-WHOLE PAYMENT. A "Major Make-Whole Payment" shall arise if
Conforming Goods are not delivered in accordance with a Conforming Seasonal PO
for an initial store allocation.
In the event of a "Major Make-Whole Payment," Supplier shall pay a penalty to
LESCO for each day, up to a maximum of 6 days, that such Conforming Goods are
not delivered in accordance with a Conforming Seasonal PO. The daily penalty
shall be equal to {REDACTED}% of the dollar amount (based on invoice price to
LESCO) of the Product that was not delivered in accordance with an applicable
Conforming Seasonal PO.
Notwithstanding the foregoing, LESCO agrees that Supplier shall not be subject
to penalties during the Transitional Period.
2. MINOR MAKE-WHOLE PAYMENTS.
LESCO and Supplier shall work together, in good faith, to determine the
appropriate service level criteria indicated as being "to be determined"
("[TBD]") prior to the end of the Transitional Period. LESCO agrees that
Supplier shall not be subject to the following penalties during the Transitional
Period. However, if the parties can't determine the appropriate service level
criteria prior to the end of the Transitional Period, then the service level
criteria shall be deemed to be 85%, meaning that Supplier must thereafter be in
compliance with 85% of Conforming PO's (and if Supplier has failed to deliver in
accordance with 85% of Conforming PO's, then Supplier shall be responsible for
the Minor-Make Whole Payments specified below, using an 85% service level
criterion).
Min/Max Products (Non-Seasonal Replen POs and replenishment of certain Seasonal
Products)
The Products (other than initial store allocations) designated in
Attachment A hereof have been further designated thereon as an Inventory
Class X, A, B or C.
The parties have agreed that the targeted average daily LESCO Service
Center(R) and/or Stores-on-Wheels(R) in-stock percentage of Conforming
Goods ("Targeted In-Stock Percentage") for each such Inventory Class in
each LESCO Service Center(R) and/or Store-on-Wheels(R) is as follows
(measured by SKU for Inventory Class X, and measured by units of Inventory
Class for Inventory Classes A, B and C):
Inventory Class Targeted In-Stock Percentage
--------------- ----------------------------
X [TBD]
A [TBD]
B [TBD]
C [TBD]
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A. Class X Inventory. LESCO has identified Products in Class X as
essential to LESCO's operations, and the parties have agreed that the
Targeted In-Stock Percentage in each LESCO Service Center(R) and/or
Store-on-Wheels(R) is [TBD] (measured by SKU) for Class X. A "Minor
Make-Whole Payment" shall be due from Supplier to LESCO if, in any one
(1) month, the actual average daily LESCO Service Center(R) and
Stores-on-Wheels(R) in-stock percentage (exclusive of any stock outs
not caused by Supplier's failure to deliver Conforming Goods in
accordance with a valid Non-Seasonal PO or Seasonal Replen PO) of
Conforming Goods in each LESCO Service Center(R) and/or
Store-on-Wheels(R) ("Actual In-Stock Percentage") in Class X falls
below [TBD] percent. LESCO will provide Supplier with a schedule which
includes the following information:
- Store location
- Out of Stock SKU
- Date SKU was Out of Stock
- PO number of replenishment order delivered late
In such an event, Supplier will pay a late delivery fee equal to {REDACTED}% of
the inventory cost associated with the Products that Supplier has failed to
deliver in accordance with a Conforming Non-Seasonal Replen PO or a
replenishment Seasonal PO, as applicable.
B. Class A, B and C Inventory. The parties have agreed to the applicable
Targeted In-Stock Percentage in each LESCO Service Center(R) and/or
Store-on-Wheels(R) (measured by units of Inventory Class) set forth in
the table above for Class A, B and C inventory. The parties have also
agreed that it is not in either party's best interest for Actual
In-Stock Percentages to be too far above or too far below the Targeted
In-Stock Percentages. Thus, the parties agree that they will
collaboratively monitor the Actual In-Stock Percentages of each Class
A, B and C and maintain Actual In-Stock Percentages within the
following ranges ("Targeted In-Stock Range"):
Inventory Class Targeted In-Stock Range
--------------- -----------------------
A [TBD] or higher
B [TBD] or higher
C [TBD] or higher
A "Minor Make-Whole Payment" shall be due from Supplier to LESCO if,
in any one (1) month, the aggregate Actual In-Stock Percentage of
conforming goods in Class A, B or C in a LESCO Service Center(R)
and/or Store-on-Wheels(R) falls below the low end of the applicable
Targeted In-Stock Range (exclusive of any stock outs not caused by
Supplier's failure to deliver conforming goods in accordance with a
Conforming Non-Seasonal Replen PO). LESCO will provide Supplier with a
schedule which includes the following information:
- Store location
- Out of Stock SKU
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- Date SKU was Out of Stock
- PO number of replenishment order delivered late
In such an event, Supplier will pay a late delivery fee equal to {REDACTED}% of
the inventory cost associated with the Products that Supplier has failed to
deliver in accordance with a Conforming Non-Seasonal Replen PO.
Delivery Service Levels.
- LESCO and Supplier have agreed to the following specified delivery
service levels:
a. Store Pick-up (includes local delivery through LESCO) - In the
case where a Customer orders Product for its pick-up at Store or
for local delivery to it through LESCO, the agreed-upon shipping
time is [TBD] days from order placement. This applies to all
selling SKUs and quantities.
b. Direct Ship: FTL - In the case where a Customer orders Product
for delivery directly to it from Supplier's plant/hub or from
third-party vendors via "Full Truck Load", the agreed-upon
shipping time is [TBD] days from order placement. This applies to
all selling SKUs and quantities of 20,000 pounds or more (10 or
more pallets).
c. Direct Ship: LTL - In the case where a Customer orders Product
for delivery directly to it from Supplier's plant/hub or from
third-party vendors via "Less than Truck Load", the agreed-upon
shipping time is [TBD] days from order placement. This applies to
all selling SKUs and quantities less than 20,000 pounds (9 or
fewer pallets).
d. Custom Blends - In the case where LESCO offers its customer the
option to purchase custom blended fertilizer, combination
products and/or seed that is not sold as part of LESCO's normal
stocking assortment, lead times for these items are different
because they are produced on a one-time basis and shipped
directly to the customer. LESCO will accept any delivery of
Custom Blend orders that are within a 7% variance to the order
quantity. The agreed-upon shipping time is as set forth below,
and applies to all quantities:
- Fertilizer - Minimum item order 12 tons; [TBD] days
delivery
- Fertilizer (Florida Only) - Minimum item order 6 tons;
[TBD] days delivery
- Combos - Minimum item order 18 tons; [TBD] days
delivery for "in season" products
- Seed - Minimum item order 2,000 pounds; [TBD] days
delivery
e. Additionally, LESCO and Supplier have agreed that for all order
types a. through d., above, the delivery service goal will be to
meet the specified service levels with conforming goods at a
[TBD] rate. Supplier will track compliance with this rate on a
monthly basis. A "Minor Make-Whole Payment" shall be due from
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Supplier to LESCO if, in any month, the service level for any of
such order types a. through d. falls below [TBD].
In such event, LESCO's "Lost Gross Profit" shall be equal to an
estimated Sales Shortfall multiplied by {REDACTED}%.
- "Sales Shortfall" equals the product of the Percentage Shortfall
multiplied by actual Sold Order Type sales for the month
- "Percentage Shortfall" equals the remainder of [TBD] service level
goal minus actual percentage service level.
For clarity, any Products delivered pursuant to the Delivery Service Levels
noted above must be pursuant to Conforming PO's for penalties to apply thereto.
THE FOREGOING MAJOR MAKE-WHOLE PAYMENTS AND MINOR MAKE-WHOLE PAYMENTS SHALL NOT
APPLY AT ANY TIME (BUT ONLY FOR SUCH PERIOD OF TIME THAT) THAT LESCO'S PAYMENTS
TO SUPPLIER UNDER SECTION 6(A)(I) HEREOF ARE MORE THAN 10 DAYS BEYOND THE THEN
APPLICABLE PAYMENT TERMS. FOR EACH MONTH FOLLOWING THE CONTRACT DATE THAT LESCO
FAILS TO PROVIDE A TIMELY SEASONAL PURCHASE FORECAST, THE WAIVER OF PENALTIES
DURING THE TRANSITIONAL PERIOD UNDER THIS ATTACHMENT B SHALL BE DEEMED TO BE
EXTENDED BY A MONTH.
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ATTACHMENT C
PLANNING AND SCHEDULING GUIDELINES
SEASONAL PRODUCTS
LESCO Seasonal Purchase Forecast
- By the 20th day of each month (which the parties agree to change
appropriately following the Transitional Period and if the parties can
not agree within 30 days following the Transitional Period, it shall
be changed to the 17th day of each month) (or the first succeeding
Business Day if such day falls on a non-Business Day), LESCO will
deliver to Supplier an updated 12 month forward forecast for the
purchase of Seasonal Products (including the seasonal allocation of
Non-Seasonal Products) ("Seasonal Purchase Forecast").
- Each Seasonal Purchase Forecast will provide:
- Product SKU
- The service area containing the Store or Customer to which
the Product will eventually be delivered
- Quantity by Product SKU
- Season Code and Inventory Class
- Month of delivery
Supplier Seasonal Production Schedule
- Within 3 Business Days after receipt of LESCO's Seasonal Purchase
Forecast, Supplier will deliver to LESCO an updated 12 month forward
production/sourcing schedule based on the Seasonal Purchase Forecast.
- Each Seasonal Production Forecast will provide:
- Product SKU
- Quantity by Product SKU
- Month of production/sourcing
- Production location (where applicable)
- Based on the Seasonal Production Schedule, Supplier and LESCO will
agree on the last date by which LESCO must issue purchase orders so as
to provide sufficient cycle time based on SKU, quantity, capacity and
anticipated delivery location.
- Supplier will endeavor to schedule production/sourcing to minimize
inventory investment while ensuring product availability for LESCO
PO Forecast
- Within 2 Business Days after LESCO's receipt of Supplier's Seasonal
Production Schedule, LESCO and Supplier will in good faith reasonably
agree (based on reasonable pre-build times taking into account the
SKU, quantity, capacity, anticipated delivery locations and other
applicable factors) on an updated 12 month forward Seasonal
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Purchase Forecast for Seasonal Products (including the seasonal
allocations of Non-Seasonal Products) ("PO Forecast") based on the
Seasonal Production Schedule setting forth the last date (as agreed to
by Supplier and LESCO) by which LESCO must submit a Seasonal PO to
purchase the desired Product.
- The PO Forecast will provide:
- Product SKU
- The month in which the Seasonal PO will be issued ("PO Issue
Date")
- The service area containing the Store or Customer to which
the Product will eventually be delivered
- Quantity of Product SKU
- The month in which such quantity will be delivered
- Once agreed, the PO Forecast can not be changed within the three month
period prior to the start of an applicable Season with respect to
Seasonal Products for such Season; (at such time prior to the start of
the Season, the PO Forecast with respect to such Season shall be
deemed a "Locked" PO Forecast"). For example, if the Season for
ice-melt begins October 1, 2005 and ends February 28, 2006 the PO
Forecast for ice-melt Product to be delivered during such Season can
not be changed following the PO Forecast to be agreed on or around
June 26. For clarity, the PO Forecast will not imply any purchasing
commitment on the part of LESCO. Such purchasing commitment will only
arise once LESCO has issued a Seasonal PO.
- LESCO and Supplier will mutually agree on three year strategic
planting forecast for seed by July 1 of each year, at which point the
seed Forecast for the following year will be deemed to be a "Locked PO
Forecast." The seed Forecast should include:
- The seed variety
- Quantity (in pounds or acres)
- Year in which the seed is to be harvested
NON-SEASONAL PRODUCTS
LESCO Non-Seasonal Purchase Forecast
- By the 20th day of each month (which the parties agree to change
appropriately following the Transitional Period and if the parties can
not agree within 30 days following the Transitional Period, it shall
be changed to the 17th day of each month) (or the first succeeding
Business Day if such day falls on a non-Business Day), LESCO will
deliver to Supplier an updated 12 month forward forecast (not to
exceed 120% of purchase forecast) for the purchase of Non-Seasonal
Products ("Non-Seasonal Forecast"). The updated Forecast for the
following month will be deemed a "Locked" Non-Seasonal Forecast.
- Each Non-Seasonal Forecast will provide:
-36-
- Product SKU
- Quantity by Product SKU
- Month of delivery
- The service area containing the Store or Customer to which
the Product will eventually be delivered
-37-
ATTACHMENT D
COST ACCOUNTING STANDARDS
Supplier will utilize cost accounting practices consistent with LESCO's
historical cost accounting practices, including:
1. All direct costs incurred in the blending of fertilizer, combination
products and seed are included in standard costs and are capitalized
to inventory.
2. Procurement, warehousing and distribution costs are capitalized to
inventory and expensed when the inventory is sold.
3. Variances - LESCO recognizes certain variances including:
a. Purchase price
b. Material usage
c. Manufacturing
The portions of variances applicable to inventory on hand are
capitalized to inventory.
4. Supplier rebate programs from vendors - LESCO earns product discounts
under various supplier rebate programs, which are recorded as accounts
receivable and as reductions of inventory cost when earned.
5. Inventory shrink - LESCO performs cycle counts of inventory at each of
its blending and distribution facilities and records the adjustments
to inventory and cost of sales when the counts are performed. Costs of
product damaged or used by blending or distribution facilities are
included in shrink.
In addition to the above historical cost accounting practices, Supplier will
charge to LESCO as inventory cost the following:
1. Margin on A/R and Margin on Maintenance Capital
2. General and administrative (G&A) costs - including executive
management, accounting, human resources, insurance premiums and
deductibles on insurance coverage (but not losses in excess of policy
limits), and other reasonable and proper headquarters related costs.
Only direct G&A costs can be charged to LESCO, that is, there will be
no general allocations from any third parties included in the costs
charged to LESCO. Charges from third parties relative to outsourced
functions can be included, but those costs must relate to direct
functions required for the operation of Supplier. For clarity, all
depreciation expense that is chargeable to LESCO hereunder will be
calculated assuming a 5 year life of the applicable asset.
3. Planning, scheduling and transportation management costs - certain
functions previously performed by LESCO including the planning,
scheduling and transportation management functions, will move to
Supplier and will be included in inventory costs.
4. All other costs and expenses incurred by Supplier other than Last Leg
Transportation costs (the actual costs of which will be billed
separately from standard/inventory cost) and those costs and expenses
outlined in the following paragraph. "Last Leg
-38-
Transportation Costs" shall mean the actual transportation costs of
shipping Products direct from either a distribution center to a Store
or Customer or direct from a manufacturing plant to a Store or
Customer.
Costs that cannot be included in inventory/standard cost or charged to LESCO are
as follows:
1. Any product margin except the margin specifically addressed in the
Margin on A/R or the Margin on Maintenance Capital.
2. Any general cost allocation from any third party other than with
respect to specific services provided to or on behalf of Supplier.
3. Depreciation related to capacity expansion not being utilized by LESCO
production. However, Supplier and LESCO can agree through a separate
arrangement to modify this restriction for specific purposes, e.g.,
SCU expansion, etc.
4. Insurable losses - because LESCO has agreed that Supplier may include
insurance premiums and deductibles on insurance coverage required
pursuant to this Agreement in inventory costs, losses in excess of
policy limits cannot be charged to LESCO where Supplier would
reasonably be expected to have obtained insurance for such loss based
on companies in a similar business and of similar size as Supplier and
with reference to Section 14 hereof.
5. Any Major Make-Whole Payments or Minor Make-Whole Payments.
6. Any other unusual, abnormal or extraordinary cost or loss outside of
the ordinary course of Supplier's business resulting from Supplier's
negligence. Because LESCO has indemnified for all environmental costs
prior to the transaction with Supplier, any environmental liability
post-transaction (other than routine expenditures to comply with
environmental laws and permits (but not costs, expenses or penalties
arising due to Supplier's non-compliance with environmental laws))
will be the responsibility of Supplier and cannot be charged to LESCO.
The parties will true-up on an annual basis actual costs (inclusive of the
Margin) relative to invoiced costs, and will make payments of any amount due
within three Business Days of reaching agreement thereon.
Supplier will review standard costs at least on an annual basis and update
standards costs from time to time in good faith.
When Supplier secures additional business, all general costs charged to LESCO
will be proportionately reduced based upon manufacturing capacity utilization
and/or throughput utilized by such new customers. These costs include, but are
not limited to:
1. Procurement and warehousing costs.
2. Inventory shrink.
3. G&A.
4. Planning, scheduling and transportation management.
-39-
ATTACHMENT E
COST SAVINGS AND COST CAP
SECTION 1 - COST SAVINGS
LESCO and Supplier to agree to establish Baseline Metrics, as follows:
1. Conversion cost per ton (which shall exclude the cost of raw
materials) -
x. Xxxxxxx Ferry
i. SCU
ii. Blended fertilizer
iii. Blended combination products
x. Xxxxxxx
i. Blended fertilizer
ii. Blended combination products
x. Xxxxxxxx
i. Blended fertilizer
ii. Blended seed
d. Silverton - blended seed
2. Distribution cost per pallet (Distribution Center operating cost plus
inbound freight divided by the number of fertilizer, combination
fertilizer and seed pallets shipped) -
a. Columbus
x. Xxxxxxx
c. Westfield
d. Silverton
e. Other
3. Transportation cost per pallet (total outbound transportation cost for
delivery of product to Service Centers or customers (but without
duplication of costs included in Distribution cost per pallet, above)
divided by the total number of fertilizer, combination fertilizer and
seed pallets shipped) (adjusted for fuel surcharge charges) -
x. Xxxxxxx Ferry/Columbus
x. Xxxxxxx
x. Xxxxxxxx
d. Silverton
e. Other
-40-
4. Non-standard cost metrics -
a. Variance (excluding purchase price variance) plus shrink charged
to LESCO divided by the number of tons produced for LESCO -
x. Xxxxxxx Ferry
ii. Sebring
iii. Xxxxxxxx
iv. Silverton
v. Other
b. Non-production cost charged to LESCO (G&A and planning,
scheduling and transportation management cost) divided by the
total number of tons produced for LESCO.
By April 20, July 20 and October 20 of each year, Supplier will prepare a
schedule in conformity with Schedule 1-A setting forth the actual cost metrics
for the items for the preceding fiscal quarter. Upon delivery of Schedule 1-A to
LESCO, the parties will jointly review the schedule. Upon request by LESCO,
Supplier will deliver reasonable documentation or explanations for any Specific
Adjustments made to the Historical Metric due to events or conditions outside of
Supplier's reasonable control. The Historical Metric will not be modified for
conditions that are within Supplier's reasonable control. For clarity, it is
Supplier's understanding that it shall be able to benefit from LESCO volume
increases. Supplier and LESCO will, if requested by LESCO, jointly discuss
whether such Specific Adjustments are warranted.
If the parties cannot agree as to the appropriate Specific Adjustments (and,
accordingly, the New Metric) each company must document what it believes the New
Metric should be in terms of dollars/(ton or pallet). On a calendar quarterly
basis, such disputed metrics will be reviewed, discussed, and documented but no
further action will occur. Once a New Metric is modified, the New Metric becomes
the Historical Metric for future application and survives until modified in the
future.
Within 30 calendar days following LESCO's year-end, Supplier will deliver
Schedule 1-A to LESCO unless given permission to delay by LESCO. Upon delivery
of Schedule 1-A, the parties will meet within three Business Days to perform the
previously outlined review for the fourth calendar quarter. The meeting cannot
end until each variance is addressed and documented as discussed above.
Determination of "Cost Savings": If there are no disputed metrics and the total
Cost Savings (column (h) from Schedule 1-A) is greater than $0, the Cost Savings
calculation will result in a payment (the "Cost Savings Amount") from LESCO to
Supplier determined as follows:
- Cost Savings < or = ${REDACTED}
Under the "First ${REDACTED}" privilege, the entire savings is
Supplier's, resulting in a payment from LESCO to Supplier.
-41-
- Cost Savings > ${REDACTED}
Cost Savings
X 50%
Supplier share of Net Cost Savings
+ ${REDACTED}
LESCO payment to Supplier
The LESCO payment to Supplier will occur within five Business Days of the
scheduled meeting. Unless waived by Supplier, failure to make the payment will
result in penalties to LESCO of 1.5% simply interest per month, accrued daily.
If there are any disputed metrics, the parties will utilize the documentation
from the review meeting to summarize the difference per Schedule 1-B.
Depending on the net balance of variance per LESCO or Supplier, the following
procedures will be followed -
- Net variance < or = $100,000 - no further action can be taken. Schedule 1-A
will prevail.
- Net variance > $100,000 but < or = $1 million
- The Chief Executive Officers (or equivalent) of LESCO and Supplier
must together review the Schedules 1-A and 1-B and, in good faith,
attempt to resolve the variance and reach a compromise. If the CEO's
cannot reach a compromise within 60 days, the matter immediately
proceeds to arbitration, as follows ("Arbitration"):
- The matter will be submitted to Deloitte & Touche LLP (or if
Deloitte & Touche LLP cannot or is unwilling to serve in such
capacity, a nationally recognized, independent public accounting
firm selected by mutual agreement of the parties, or if they
cannot agree, selected by mutual agreement of the independent
public accounting firms regularly used by the parties in the
conduct of their respective businesses) (the "Arbitrator"), who
shall be engaged to provide a final and conclusive resolution of
all unresolved disputes within ninety (90) days after such
engagement. The Arbitrator shall act as an arbitrator to
determine only those issues that remain in dispute, and such
determination shall be based solely on a review of the factual
materials presented by the parties, either on their own
initiative or at the specific request of the Arbitrator, and such
accounting principles and literature as the Arbitrator shall deem
appropriate. No Federal or state Rules of Civil Procedure or
Rules of Evidence shall apply. The determination of the
Arbitrator shall be final, binding and conclusive on the parties.
- Cost to be allocated in reverse proportion to final award.
- Net variance > $1 million
- The Chief Executive Officers (or equivalent) of LESCO and Supplier
must together review the Schedules 1-A and 1-B and, in good faith,
attempt to resolve the variance and reach a compromise. If the CEO's
cannot reach a compromise within 60 days, the matter immediately
proceeds to Arbitration.
-42-
- Costs are split 50/50%.
For purposes of Schedules 1-A, 1-B, 2-A and 2-B to this is Attachment E, "PPI"
means the Producers Price Index, Finished Goods Index, Simple Percent Method,
Base Year 2005 (to the extent an entire year of information is not available,
the parties shall determine the PPI based on the average of the information
available as of the date of the calculation of the price adjustment). Such PPI
shall serve as the base year hereunder, and measurements based thereon shall be
on a simple interest basis, computed annually thereafter.
-43-
SCHEDULE 1-A
(F) (H)
(A) (B) (C) (D) (E) EXPECTED (G) COST
HISTORICAL SPECIFIC NEW METRIC ACTUAL ACTUAL COST ACTUAL COST SAVINGS
METRIC ADJUSTMENTS [A+B] RESULTS VOLUME [C*E] [D*E] [F-G]
---------- ----------- ---------- ------- ------ -------- ----------- -------
1. Conversion Cost per Ton -
x. Xxxxxxx Ferry
i. SCU
ii. Fertilizer
iii. Combo
x. Xxxxxxx
i. Fertilizer
ii. Combo
x. Xxxxxxxx
i. Fertilizer
ii. Seed
d. Silverton - seed
2. Distribution Cost per Pallet
a. Columbus
x. Xxxxxxx
c. Westfield
d. Silverton
e. Other
3. Transportation Cost per Pallet
x. Xxxxxxx Ferry/Columbus
x. Xxxxxxx
x. Xxxxxxxx/Westfield
d. Silverton
e. Other
4. Non-Standard Costs per Ton
a. Variance/shrink
x. Xxxxxxx Ferry
ii. Sebring
iii. Xxxxxxxx
iv. Silverton
v. Other
b. Non-production costs
---
TOTALS $-- $-- $--
===
-44-
SCHEDULE 1-B
METRIC $ CHANGES
----------------------------------------- ------------------------
METRIC AND DESCRIPTION OF DISPUTED VARIANCE PER SCHEDULE A PER LESCO PER SUPPLIER PER LESCO PER SUPPLIER
------------------------------------------- -------------- --------- ------------ --------- ------------
-45-
SECTION 2 - COST CAP
In conjunction with the Cost Savings processes, LESCO and Supplier will track
Historical Metrics, as follows:
1. Conversion cost per ton (which shall exclude the cost of raw
materials) -
x. Xxxxxxx Ferry
i. SCU
ii. Blended fertilizer
iii. Blended combination products
x. Xxxxxxx
i. Blended fertilizer
ii. Blended combination products
x. Xxxxxxxx
i. Blended fertilizer
ii. Blended seed
d. Silverton - blended seed
2. Distribution cost per pallet (Distribution Center operating cost plus
inbound freight divided by the number of fertilizer, combination
fertilizer and seed pallets shipped) -
a. Columbus
x. Xxxxxxx
c. Westfield
d. Silverton
e. Other
3. Transportation cost per pallet (total outbound transportation cost for
delivery of product to Service Centers or customers (but without
duplication of costs included in Distribution cost per pallet, above)
divided by the total number of fertilizer, combination fertilizer and
seed pallets shipped) (adjusted for fuel surcharge charges) -
x. Xxxxxxx Ferry/Columbus
x. Xxxxxxx
x. Xxxxxxxx
d. Silverton
e. Other
4. Non-standard cost metrics -
a. Variance (excluding purchase price variance) plus shrink charged
to LESCO divided by the number of tons produced for LESCO -
x. Xxxxxxx Ferry
ii. Sebring
iii. Xxxxxxxx
iv. Silverton
v. Other
b. Non-production cost charged to LESCO (G&A and planning,
scheduling and transportation management cost) divided by the
total number of tons produced for LESCO.
On a calendar quarterly basis within 20 days of each quarter end, Supplier
will prepare a schedule in conformity with Schedule 2-A setting forth the
actual cost metrics for the items. Upon delivery of Schedule 2-A to LESCO,
the parties will jointly review the schedule. Upon request by LESCO,
Supplier will deliver reasonable documentation or explanations for any
Specific Adjustments made to the Historical Metric due to events or
conditions outside of Supplier's reasonable control. For clarity, any LESCO
volume decreases shall serve as Specific Adjustments to the Historical
Metric. The Historical Metric will not be modified for conditions that are
within Supplier's reasonable control. Supplier and LESCO will, if requested
by LESCO, jointly discuss whether such Specific Adjustments are warranted.
If the parties cannot agree as to the appropriate Specific Metrics (and,
accordingly, the New Metric) each company must document what it believes
the New Metric should be in terms of dollars/(ton or pallet). On a calendar
quarterly basis, such disputed metrics will be reviewed, discussed, and
documented but no further action will occur. Once a Historical Metric is
modified, the resulting New Metric becomes the Historical Metric for future
application and survives until modified in the future.
Thirty days following LESCO's year-end, Supplier will deliver Schedule 2-A to
LESCO unless given permission to delay by LESCO. If Supplier fails to deliver
Schedule 2-A to LESCO within such thirty day period, any cost savings due
Supplier as provided in Section 1 of Attachment E hereof shall be reduced by
$10,000 for each day that the schedule is late.
Upon delivery of Schedule 2-A, the parties will meet within three Business Days
to perform the previously outlined review for the fourth calendar quarter. The
meeting cannot end until each variance is addressed and documented as discussed
above.
Determination of "Cost Cap": If there are no disputed metrics, the parties will
proceed accordingly with Schedule 2-A. If there are disputed metrics, the
parties will prepare Schedule 2-B.
If Schedule 2-B is not necessary, and
1. The total Difference (Column (i) of Schedule 2-A) is greater than $0,
no payment is required.
2. The total Difference is less than $0, Supplier must pay LESCO the
amount of the difference as a credit to LESCO's next scheduled
payment(s).
If Schedule 2-B is necessary, and
- The Difference is greater than $0, no payment is required.
- The Difference is less than $0 and the variance between the LESCO and the
Supplier Cost Caps are
a. Variance < or = $100,000 - no further action can be taken.
Supplier Cost Cap will prevail.
b. Variance > $100,000 but < or = $1 million
i. The Chief Executive Officers (or equivalent) of LESCO and
Supplier must together review the Schedules 2-A and 2-B and,
in good faith, attempt to resolve the variance and reach a
compromise. If the CEO's cannot reach a compromise within 60
days, the matter immediately proceeds to Arbitration.
- Cost to be allocated in reverse proportion to final
award.
c. Variance > $1 million
i. The Chief Executive Officers (or equivalent) of LESCO and
Supplier must together review the Schedules 2-A and 2-B and,
in good faith, attempt to resolve the variance and reach a
compromise. If the CEO's cannot reach a compromise within 60
days, the matter immediately proceeds to Arbitration.
- Costs are split 50/50%.
APPLICATION OF THE COST CAP WILL BE SUSPENDED UNTIL THE END OF THE
TRANSITIONAL PERIOD. THE INITIAL HISTORICAL METRICS FOR THE COST CAP WILL
BE DETERMINED BASED ON COSTS DETERMINED DURING THE TRANSITIONAL PERIOD.
SCHEDULE 2-A
(B)
(A) 1+ GREATER OF (C) (D) (E) (F) (G) (H) (I)
HISTORICAL (I) {REDACTED}% SPECIFIC NEW METRIC ACTUAL ACTUAL COST CAP ACTUAL COST DIFFERENCE
METRIC OR (II) PPI ADJUSTMENTS [A*B+C] RESULTS VOLUME [D*F] [E*F] [G-H]
---------- --------------- ----------- ---------- ------- ------ -------- ----------- ----------
1. Conversion Cost per Ton -
x. Xxxxxxx Ferry
i. SCU
ii. Fertilizer
iii. Combo
x. Xxxxxxx
i. Fertilizer
ii. Combo
x. Xxxxxxxx
i. Fertilizer
ii. Seed
d. Silverton - seed
2. Distribution Cost per Pallet
a. Columbus
x. Xxxxxxx
c. Westfield
d. Silverton
e. Other
3. Transportation Cost per Pallet
x. Xxxxxxx Ferry/Columbus
x. Xxxxxxx
x. Xxxxxxxx/Westfield
d. Silverton
e. Other
4. Non-Standard Costs per Ton
a. Variance/shrink
x. Xxxxxxx Ferry
ii. Sebring
iii. Xxxxxxxx
iv. Silverton
v. Other
b. Non-production costs
---
TOTALS $-- $-- $--
===
SCHEDULE 2-B
NEW METRIC NEW METRIC X VOLUME PER SCHEDULE A
----------------------------------- -----------------------------------
DESCRIPTION OF ACTUAL PER ACTUAL PER
METRIC DISPUTED VARIANCE SCHEDULE A PER LESCO PER SUPPLIER SCHEDULE A PER LESCO PER SUPPLIER
------ ----------------- ---------- --------- ------------ ---------- --------- ------------
1. Conversion Cost per Ton -
x. Xxxxxxx Ferry
i. SCU
ii. Fertilizer
iii. Combo
x. Xxxxxxx
i. Fertilizer
ii. Combo
x. Xxxxxxxx
i. Fertilizer
ii. Seed
d. Silverton - seed
2. Distribution Cost per Pallet
a. Columbus
x. Xxxxxxx
c. Westfield
d. Silverton
e. Other
3. Transportation Cost per Pallet
x. Xxxxxxx ferry/Columbus
x. Xxxxxxx
x. Xxxxxxxx/Westfield
d. Silverton
e. Other
4. Non-Standard Costs per Ton
a. Variance/shrink
x. Xxxxxxx Ferry
ii. Sebring
iii. Xxxxxxxx
iv. Silverton
v. Other
b. Non-production costs
--- --- ---
Total Prior Year Costs 0 0 0
=== === ===
ATTACHMENT F
MARGIN
1. "Margin on A/R" means, for each quarterly period, the product obtained
by multiplying {REDACTED}% by Average A/R in such period; provided that where
DSO is less than Target DSO for such period, then for purposes of determining
the Margin on A/R for such period, Average A/R will be increased up to an amount
so that DSO equals Target DSO for such period.
For purposes of determining Margin:
a. "Average A/R" means, with respect to any period, an amount equal to the
quotient of the sum of the daily balance of accounts receivable owing to
Supplier under this Agreement for such period, divided by the number of days in
such period;
b. "DSO" means, with respect to any period, the product obtained by
multiplying (a) the number of days in such period by (b) the amount obtained by
dividing (i) Average A/R in such period by (ii) Sales in such period;
c. "Sales" means, with respect to any period, the amount invoiced by
Supplier to LESCO for Products shipped hereunder during such period;
d. "Target DSO" means:
During the Period: DSO
------------------ ---
To and including December 31, 2006 Within 45 days
From January 1, 2007 to December 31, 2007 Within 42 days
From January 1, 2008 to December 31, 2008 Within 39 days
From January 1, 2009 to December 31, 2009 Within 36 days
From January 1, 2010 to December 31, 2010 Within 33 days
From and after January 1, 2011 Within 30 days
2. "Margin on Maintenance Capital" means, for each quarterly period, the
product obtained by multiplying {REDACTED}% by the undepreciated portion of all
Maintenance Capital with Maintenance Capital deemed to be made on the date the
applicable asset was put into service or the date the applicable repair was
made. For purposes of determining Margin on Maintenance Capital, all Maintenance
Capital shall be deemed to have a depreciable life of five (5) years.
SOLICITORS, 31168, 94002, 101243664.2, Final LTSA with Turf Care
2
