PACKAGING MATERIAL SUPPLY AGREEMENT
INTERNATIONAL PAPER COMPANY, a New York corporation existing under the laws of
the United States of America, with a principal p]ace of business at
International Place I, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, XXX
("International Paper") agrees to sell to Xxxxxx Beverage Company ("Xxxxxx'x"),
a business entity existing under the laws of California, agrees to purchase upon
the following terms and conditions certain 250 mI International Paper aseptic
packaging materials for Xxxxxx'x Juice Slam and Juice Blast ("Packaging
Material").
1. Term. From the date of January 1, 2001 and for three (3) years thereafter
ending no sooner than December 3, 2003, or until terminated or extended as set
forth below.
2. Quantity. All (100%) of Xxxxxx'x requirements for aseptic Packaging Material.
During the term of this Agreement, International Paper shall supply Xxxxxx'x
with those quantities or Packaging Materials as ordered by pursuant to this
Agreement for the specified co-packer facilities of Green Spot Packaging,
Claremont, CA and Xxxxxxx Foods, Flemington, NJ.
3. Pricing and Terms of Payment. Pricing and terms of payment for Packaging
Material shall be those in effect as set forth in Schedule A. Notice of
subsequent price changes for Packaging Material are deternined in accordance
with Schedule A. Shipments of Packaging Material shall be ex-works, plant of
manufacture. Terms of sale are one percent (1%) ten (10) days; net thirty (30)
days.
4. Orders. Xxxxxx'x purchase orders will specify quantities to be shipped from
"blanket orders" greater than ____ aseptic boxes. International Paper will
warehouse Packaging Material from these "blanket orders" for ninety (90) days at
their costs.
5. Title - Risk of Loss. Title, risk of loss and damages to the Packaging
Material will pass to Xxxxxx'x when the goods are delivered for shipment at
International Paper's manufacturing facility.
6. Excuse of Performance. No liability shall result from delay in performance by
International Paper or Xxxxxx'x caused by act of God, fire, flood, war,
government action, accident, labor trouble or shortage, inability to obtain
material, equipment or transportation, or similar circumstances beyond the
reasonable control of International Paper or Xxxxxx'x.
7. Liability. Upon receipt, Xxxxxx'x shall examining the Packaging Material for
nonconformity. Any claims shall be deemed waived unless all ascertainable
factory defects are stated with particularity in writing and received by
International Paper within a reasonable time after they become known to Xxxxxx'x
and whenever possible within such time as will enable International Paper's
technicians to reasonably distinguish such defect from defects, if any,
resulting from misuse, mishandling, exposure to the elements or other causes
beyond the reasonable control of International Paper. Any Packaging Material
that does not meet or exceed the product specifications of Schedule B
("Nonconforming or Defective Packaging Material") will be set aside for
inspection by International Paper. Any action for breach of this Agreement based
in whole or in part on nonconformity of Packaging Material must be commenced
within one (1) year after Xxxxxx'x is or reasonably .should have been aware of
the cause of action has occurred. Xxxxxx'x shall store the Packaging Material in
a cool, dry and clean place.
International Paper shall in no event be liable for any incidental or
consequential unforeseeable damages other than damages caused by or attributable
to defective Packaging Material. Xxxxxx'x shall be entitled to setoff from the
price invoiced to it the amount of any claim asserted against International
Paper with International Paper's prior written consent. Xxxxxx'x agrees to
indemnify, defend and hold harmless International Paper from and against all
claims, actions, losses, demands, suits, including reasonable attorney fees
arising out of this Agreement, other than claims, actions, losses, demands or
suits arising out of Nonconforming or Defective Packaging Materials due to the
negligence of International Paper.
8.Warranty. International Paper makes no warranty of any kind except as was
stated above, either express or implied by fact or by law save to the extent
caused or attributable to defective Packaging Material. Xxxxxx'x undertakes the
sole responsibility for the products packed.
9.1 Marketing Allowances. In consideration for the terms of this Agreement,
International Paper agrees to credit Xxxxxx'x on a quarterly basis an amount
equal to $____ per case of 24 aseptic units purchased Xxxxxx'x using
International Paper aseptic rollstock packaging. This allowance is conditioned
upon Xxxxxx'x purchasing aseptic rollstock from International Paper to produce a
minimum of ____ cases, at 24 units per case, annually. In the event of Xxxxxx'x
non-performance of this requirement, this Agreement shall be extended until such
time that Xxxxxx'x makes up this shortfall and thereby purchases and pays in
full for aseptic rollstock to produce ____, at 24 units per case, hereunder.
This allowance is also contingent upon Xxxxxx'x maintaining their accounts
receivable within terms. Xxxxxx'x will furnish sales data to International
Paper, Ralleigh, NC on a quarterly basis and this marketing allowance will be
paid within 30 days of receipt.
9.2 In the event this Agreement is terminated in accordance with Paragraph 17
and due to an act or omission of Xxxxxx'x thereunder, the marketing allowances
of Paragraph 9.1 shall likewise terminate and no portion of this marketing
allowance due thereafter shall be due and owing by International Paper.
10. Notices. All notices shall be made in writing and shal be deemed to have
been properly given if sent by certified mail, Return Receipt Requested,
facsimile (simultaneously confirmed by Certified Mail, Return Receipt Requested)
or by hand delivery to any authorized agents, at the respective addresses set
forth herein. All payments, unless otherwise directed by International Paper,
shall be sent to the address shown on the invoice.
11. Resolution of Disputes.
11.1 In the event of a breach of this Agreement, or a dispute as to the meaning
of this Agreement, or any of its terms which the parties cannot resolve by
themselves amicably, the parties agree to submit such dispute to resolution in
the manner hereinafter described. First, the parties shall endeavor to resolve
the dispute through the use of an acceptable alternative dispute resolution
procedure, If within thirty (30) days after one party notifies the other in
writing of the existence of a dispute which it desires to be resolved under this
paragraph the parties have not agreed upon an acceptable alternative dispute
resolution procedure, then the matter shall be resolved by arbitration as set
forth below and according to the rules and procedures of the American
Arbitration Association, except as herein modified by the parties and judgment
upon the award may be entered in any court having jurisdiction thereof. Unless
otherwise agreed to in writing, all alternative dispute resolution or
arbitration hearings will be held in Los Angeles, CA.
11.2 within ten (10) days after the failure to agree to an acceptable
alternative dispute resolution procedure, each party will select an arbitrator,
and notify the other party of its selection. Within fifteen (15) days after such
notice, the respective arbitrators will select a third arbitrator as Chairman of
the panel. A hearing by the arbitration panel must be held within thirty (30)
days after the selection of the Chairman and a majority decision and resolution
must be reached within thirty (30) days of such hearing. Decisions of the panel
must be in writing and will be final arid binding on the parties.
11.3 All proceedings will be held in the English language and each party shall
bear its own cost of presenting its case, including one-half the cost of the
arbitration panel and/or arbitrator, in an alternative dispute resolution
procedure, or arbitration, as the case may be.
11.4 The validity, construction and performance of this Agreement shall be
governed by and interpreted in accordance with the laws of the State of
Tennessee (as if all aspects of the Agreement were to be performed in
Tennessee).
12. Artwork and Wording. International Paper shall be responsible for reasonable
and actually incurred costs for Artwork and plate charges for Packaging Material
of new product lines equal to ____% of the Packaging Material purchased during
each year of this Agreement. Xxxxxx'x nevertheless assumes the responsibility
that the same complies with all governmental and/or regulatory (Federal, local
or state) regulations and laws concerning the Packaging Material and the
products to be contained therein. Xxxxxx'x specifically agrees to indemnify and
hold International Paper harmless for any claims arising out of any deficiency
or misstatement in labeling approved in writing by Xxxxxx'x or the improper
filling of the Packaging Material and/or the products contained therein.
13. Waiver. The failure of International Paper or Xxxxxx'x, as the case may be,
to insist in any one or more instances upon strict performance of any or the
provisions of this Agreement or to take advantage of any of its rights shall not
operate as a continuing waiver of its rights.
14. Entire Agreement and Assignment. This Agreement contains the entire
agreement between the parties and shall be binding upon and inure to the benefit
of the successors of the parties. Neither this Agreement, nor its rights or
obligations shall be assignable or transferable by either party, in whole or in
part, except with the written consent of the other party and such consent shall
not be unreasonably withheld.
15. Severability. If any provision of this Agreement is found to be invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
the other provisions of this Agreement shall remain in full force and effect in
such jurisdiction. The invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
16. Amendments. No amendments, changes or additions to this Agreement shall be
effective or binding on either party hereto unless reduced to writing and
executed by the respective duly authorized representatives of each of the
parties hereto.
17. Termination.
17.1 In the event that Xxxxxx'x or International Paper shall fail to make any
payment when due under this Agreement (and shall fail to pay the same within ten
(10) days following written notice from either party), or in the event that
either party shall materially breach or fail to comply with any other provision
of this Agreement, or International Paper's failure to offer competitive pricing
and such default shall continue for a period of sixty days after the giving of
written notice thereof by the other party to the defaulting party, specifying
the default, or in the event that: (i) either party shall become insolvent or be
adjudicated a bankrupt, or make a general assignment for the benefit creditors;
or (ii) receiver or liquidator shall be appointed for either party; then the
other party shall have the right to terminate this Agreement by written notice,
such termination to be effective upon giving such notice.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed this
30th day of November, 2000.
XXXXXX BEVERAGE COMPANY INTERNATIONAL PAPER COMPANY
By: /s/ HILTON XXXXXXXXXX By: /s/ XXX XXXXXXX
Title: Vice Chairman Title: N.A. Commercial Manager
Date: November 20, 2000 Date: February 19, 2002
PACKAGING MATERIAL PRICING SUPPLY AGREEMENT
BETWEEN INTERNATIONAL PAPER COMPANY AND
XXXXXX BEVERAGE COMPANY
DATED NOVEMBER 30, 2000
PACKAGING MATERIAL PRICING: This pricing for Packaging Material shall remain as
set forth below through December 31, 2002. In the event of an industry accepted
price increase or decrease after execution of this Agreement and prior to
December 31, 2002, this price modification will be effective on January 1, 2003
for a term of at least one (1) year, but in no event shall such increase or
decrease exceed ____% of the prior year's pricing for Packaging Material. This
provision and its terms will likewise apply to subsequent price modifications
during each year of the remaining Term of this Agreement.
250 ml aseptic rollstock $____/Case of 24 units
Includes L/S sealing strip and machine royalty fee
FIRST ADDENDUM TO THE PACKAGING MATERIAL SUPPLY AGREEMENT
DATED NOVEMBER 30, 2000
BY AND BETWEEN
INTERNATIONAL PAPER COMPANY AND XXXXXX BEVERAGE COMPANY
WHEREFORE, on November 30, 2000, INTERNATIONAL PAPER COMPANY,
("International Paper") and Xxxxxx Beverage Company ("Xxxxxx'x"), entered into a
Packaging Material Supply Agreement which provided for the purchase of certain
aseptic liquid packaging material ("Packaging Material") from International
Paper; and
WHEREFORE, Xxxxxx'x has expressed an interest in purchasing additional
sizes of aseptic Packaging Material and specifically 125 ml 'superslim' aseptic
rollstock and International Paper is willing to offer the same to Xxxxxx'x
subject to the terms of this First Addendum;
NOW THEREFORE, it is agreed as follows:
Term. From the date of November 1, 2001 and for three (3) years thereafter
ending no sooner than October 31, 2004, or until terminated or extended as set
forth below.
Quantity. All of Xxxxxx'x requirements for 125 ml superslim aseptic
Packaging Material. During the term of this Agreement, International Paper shall
supply Xxxxxx'x with those quantities of this 125 ml superslim Packaging
Material as ordered by Xxxxxx'x pursuant to the Packaging Material Supply
Agreement and this First Addendum for the specified co-packer facilities of
Green Spot Packaging, Claremont, CA and Xxxxxxx Foods, Flemington, NJ.
Pricing. Pricing for 125 ml superslim aseptic Packaging Material shall be
that in effect as set forth in Schedule A. Shipments of Packaging Material shall
be ex-works, plant of manufacture.
Orders. Xxxxxx'x purchase orders will specify quantities to be shipped from
"blanket orders" greater than ____ per item or label. International Paper will
warehouse Packaging Material from these "blanket orders" for ninety (90) days at
their costs. Xxxxxx'x shall release Packaging Material from the blanket orders
in pallet increments per label of ____ Packaging Material units.
Marketing Allowances. In consideration for the terms of the Packaging
Material Supply Agreement of November 30, 2000 and this First Addendum,
International Paper agrees to also credit Xxxxxx'x on a quarterly basis an
amount equal to $____ per case of 44 aseptic units of 125 ml superslim units or
pro rata for different size cases produced by Xxxxxx'x using International Paper
aseptic rollstock packaging material. This allowance is conditioned upon
Xxxxxx'x purchasing and paying in full for aseptic rollstock from International
Paper to produce a minimum of ____ cases, at forty-four (44) units per case of
125 ml superslim aseptic packages, or equivalent number of units if different
size cases, annually. Any excess purchases to be credited to future years'
requirements. In the event of Xxxxxx'x non-performance of this requirement, this
Agreement shall be extended until such time that Xxxxxx'x makes up this
shortfall and thereby purchases and pays in full for aseptic rollstock to
produce ____ cases, at 44 aseptic units of 125 ml superslim per case, or the
equivalent number of aseptic juice boxes of any other size for the Junior Juice
brand, hereunder. This allowance is also contingent upon Xxxxxx'x maintaining
their accounts receivable within terms. Xxxxxx'x will furnish sales data to
International Paper, Raleigh, NC on a quarterly basis and this marketing
allowance will be paid within 30 days of receipt of this sales data.
Incorporation: All other terms and conditions of the parties November 30,
2000 Packaging Material Supply Agreement shall remain in full force and effect,
unless as otherwise provided for as set-forth in this First Addendum.
IN WITNESS WHEREOF, the parties have caused this First Addendum Agreement
to be executed this 26 day of September, 2001.
XXXXXX BEVERAGE COMPANY INTERNATIONAL PAPER COMPANY
By: /s/ HILTON XXXXXXXXXX By: /s/XXX XXXXXXX
Title: Vice Chairman Title: Commercial Manager
Date: October 3, 2001 Date: October 3, 2001
SCHEDULE A
PACKAGING MATERIAL PRICING:
FIRST ADDENDUM
TO THE PACKAGING MATERIAL PRICING SUPPLY AGREEMENT BETWEEN
INTERNATIONAL PAPER COMPANY AND XXXXXX BEVERAGE COMPANY
DATED SEPTEMBER 26, 2001
125 ml superslim aseptic rollstock $____/Case of 44 units
Includes L/S sealing strip and machine royalty fees
SECOND ADDENDUM TO THE PACKAGING MATERIAL SUPPLY AGREEMENT
DATED NOVEMBER 30, 2000
BY AND BETWEEN
INTERNATIONAL PAPER COMPANY AND XXXXXX BEVERAGE COMPANY
WHEREFORE, on November 30, 2000, INTERNATIONAL PAPER COMPANY,
("International Paper") and Xxxxxx Beverage Company ("Xxxxxx'x"), entered into a
Packaging Material Supply Agreement which provided for the purchase of certain
aseptic liquid packaging material ("Packaging Material") from International
Paper; and
WHEREFORE, on October 3,2001, International Paper and Xxxxxx'x entered into
a First Addendum to the November 30, 2000 Packaging Material Supply Agreement
which provides for purchasing of additional aseptic Packaging Material and
specifically 125 ml 'superslim' aseptic -roll stock;
WHEREFORE, Xxxxxx'x has expressed an interest in purchasing additional
sizes of aseptic Packaging Material and specifically 300 ml aseptic roll stock
and International Paper is willing to offer the same to Xxxxxx' s subject to the
terms of this Second Addendum
NOW THEREFORE, it is agreed as follows:
Term. From the date of January 1, 2002 and for three (3) years thereafter
ending no sooner than December 31, 2004, or until terminated or extended as set
forth below.
Quantity. All of Xxxxxx'x requirements for 300 ml aseptic Packaging
Material. During the term of this Agreement, International Paper shall supply
Xxxxxx'x with those quantities of this 300 ml Packaging Material as ordered by
Xxxxxx'x pursuant to the Packaging Material Supply Agreement and this Second
Addendum for the specified co-packer facilities of Green Spot Packaging,
Claremont, CA and Xxxxxxx Foods, Flemington, NJ.
Pricing. Pricing for 300 ml aseptic Packaging Material shall be that in
effect as set forth in Schedule A. Shipments of Packaging Material shall be
ex-works, plant of manufacture.
Orders. Xxxxxx'x purchase orders will specify quantities to be shipped from
"blanket orders" greater than ____ pallets per item or label International Paper
will warehouse Packaging Material from these "blanket orders" for one hundred
and fifty (150) days at their costs. Xxxxxx'x shall release Packaging Material
from blanket order in pallet increments per label of ____ Packaging Material
units.
Marketing Allowances. In consideration for the terms of the Packaging
Material Supply Agreement of November 30, 2000 and the Addendums and this second
Addendum, International Paper agrees to also credit Xxxxxx'x on a quarterly
basis an amount equal to $____ per case of 24 aseptic units of 300 ml units or
pro rata for different size cases produced by Xxxxxx'x using International Paper
aseptic rollstock packaging material. This allowance is conditioned upon
Xxxxxx'x purchasing and paying in full for aseptic rollstock from International
Paper to produce a minimum of ____ cases, at twenty-four (24) units per case of
300 ml aseptic packages annually. In the event of Xxxxxx'x non-performance of
this requirement, this Agreement shall be extended until such time that Xxxxxx'
s makes up this shortfall and thereby purchases and pays in full for aseptic
rollstock to produce ____ cases, at 24 aseptic units of 300 ml per case,
hereunder. This allowance is also contingent upon Xxxxxx'x maintaining their
accounts receivable within terms. Xxxxxx'x will furnish sales data to
International Paper, Raleigh, NC on a quarterly basis and this marketing
allowance will be paid Within 30 days of receipt of this sales data.
Incorporation: All other terms and conditions of the parties November 30,
2000 Packaging Material Supply Agreement shall remain in full force and effect,
unless as otherwise provided for as set-forth in this First Addendum.
IN WITNESS WHEREOF, the parties have caused this Second Addendum Agreement
to be executed this 19th day of February, 2001.
XXXXXX BEVERAGE COMPANY INTERNATIONAL PAPER COMPANY
By: /s/ HILTON XXXXXXXXXX By: /s/ XXX XXXXXXX
Title: Vice Chairman Title: N.A. Commercial Manager
Date: February 19, 2001 Date: February 19, 2002
SCHEDULE A
PACKAGING MATERIAL PRICING
SECOND ADDENDUM
TO THE PACKAGING MATERIAL PRICING SUPPLY AGREEMENT BETWEEN
INTERNATIONAL PAPER COMPANY AND XXXXXX BEVERAGE COMPANY
DATED FEBRUARY 19, 2001
300 ml aseptic roll stock $____/M units
$____ per case of 24 units of 300 ml aseptic rollstock
