EXHIBIT 10.14
FINAL- AUTOMOTIVE
PURCHASE/SUPPLY AGREEMENT
(Corrugated Products)
PURCHASE/SUPPLY AGREEMENT dated as of April 12, 1999, between
PACKAGING CORPORATION OF AMERICA, a Delaware corporation ("Seller"), and TENNECO
AUTOMOTIVE INC., a Delaware corporation ("Buyer").
PRELIMINARY STATEMENT
A. Seller and Tenneco Packaging, Inc. ("TPI"), an affiliate of
Buyer, each are party to that Contribution Agreement, dated January 25, 1999
(the "Contribution Agreement"), pursuant to which Seller has agreed to acquire
the Containerboard Business (as defined therein) of TPI, upon the terms and
subject to the conditions set forth in the Contribution Agreement, for $2.2
billion in cash, securities and assumption of indebtedness. As of and following
the closing on the date hereof of the transactions contemplated by the
Contribution Agreement (the "Closing"), Seller owns and operates various box
plants which produce various grades and types of corrugated products (each a
"Box Plant").
B. In the Contribution Agreement, TPI has agreed to cause Buyer to
purchase from Seller, and Seller has agreed to sell to Buyer, certain corrugated
products (the "Corrugated Products") produced by Seller, at the prices set forth
herein, for five years after the Closing thereunder. Execution and delivery of
this Agreement is a condition to the Closing.
NOW, THEREFORE, the parties agree as follows:
1. Purchase and Sale.
1.1 Purchases. Subject to the terms and conditions set forth herein,
Buyer agrees to purchase and Seller agrees to supply at the locations listed on
Attachment A ("Buyer Locations") the percentage of Buyer's requirements listed
on Attachment A for Corrugated Products (as may be updated or modified from time
to time as mutually agreed upon by the parties, including New Products, the
"Products") for such locations (so long as Seller produces such Products). The
Buyer Locations constitute all of the facilities of Buyer that have purchased
Corrugated Products from TPI during the 12-month period prior to the date
hereof. New Products means Corrugated Products that are either (i) not of a type
required to be purchased by Buyer from Seller hereunder as of the date hereof,
or (ii) a Product that Seller requests to be treated as a New Product pursuant
to Section 1.6 hereunder.
1.2 Purchase Orders. All of Buyer's purchases shall (subject to the
last sentence of this Section 1.2) be made on the form of purchase orders used
by Buyer at each of the Buyer Locations as of or prior to January 25, 1999
(hereinafter referred to as "Orders"), copies of which are attached hereto as
Attachment B, and this Agreement shall be deemed to be incorporated into all
such Orders. With respect to Corrugated Products, a Buyer Location may issue a
blanket purchase order for Products hereunder, with releases, which may be
written, verbal or electronic, issued from time to time under such blanket
purchase orders for specific purchases. Any such release shall be
deemed an Order. Each Order shall specify the type and quantity of Products, the
delivery requirements (or, in the case of Containerboard, the requested shipping
date), and any other relevant information, all of which (including the purchase
orders) shall be in form and with terms and conditions consistent with past
practices as of and during the 12-month period prior to the date hereof. In the
event any term of any purchase order is inconsistent with, or more onerous to
Seller than, the terms of this Agreement, the terms of this Agreement shall
control.
1.3 Acceptance. Seller shall be deemed to have accepted all Orders
received from Buyer unless Seller notifies Buyer in writing within two business
days of receipt of a specific Order that Seller is not accepting such Order.
1.4 Lead Time. Buyer will cooperate with Seller to develop
reasonable procedures designed to provide Seller with as much lead time as
reasonably practical when placing or changing Orders. Similarly, if Seller
ceases to manufacture particular Products, Seller shall provide Buyer with as
much lead time as reasonably practical to allow for Buyer to make alternative
arrangements to purchase such Products from one or more third parties. If Seller
is unable to ship the Products for delivery on the required or requested date,
Seller shall give Buyer notice thereof as soon as reasonably practical.
1.5 Exceptions to Requirements. Notwithstanding Section 1.1 hereof,
Buyer may purchase Products from third parties if (and only if):
(i) Seller is unable to meet Buyer's specifications set forth
in an Order for a Product (which specifications will be consistent with,
and subject to tolerances and allowances with respect to Product
specifications as permitted in accordance with, past practices as of and
during the 12-month period prior to the date of this Agreement, subject to
changes arising from Buyer's bona fide business requirements provided that
such changes (A) do not change any term, such as price, specifically
addressed in this Agreement, and (B) the increased costs from any changes
shall be borne by Buyer, notwithstanding any other provision of the this
Agreement, including clause (A) above, to the contrary), in which case
Buyer shall not be obligated to purchase such Products in such Order for
which the specifications can not be met from Seller in the future until
such time as Seller is capable of producing such Products meeting such
specifications;
(ii) Seller is unable to meet Buyer's delivery requirements
set forth in an Order (provided such delivery requirements are in
accordance with past practices as of and during the 12-month period prior
to the date of this Agreement, subject to changes arising from Buyer's
bona fide business requirements provided that such changes (A) do not
change any term, such as price, specifically addressed in this Agreement,
and (B) the increased costs from any changes shall be borne by Buyer,
notwithstanding any other provision of the this Agreement, including
clause (A) above, to the contrary), in which case Buyer shall not be
obligated to purchase the quantity of the Products specified in such Order
for which the delivery requirements or requested shipping date can not be
met from Seller; or
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(iii) Seller rejects any Orders for any other reason, in which
case Buyer shall not be obligated to purchase the quantity of the Products
specified in such Orders from Seller.
The exceptions set forth in clauses (ii) and (iii), above, shall apply only to
the specific Orders, and not to future Orders covering the same Products, unless
the reason for the rejection of an Order under clause (iii) is because Seller
does not manufacture or is not capable of manufacturing such Products, in which
case clause (iii) will, with respect to such Products, apply to future Orders,
to the extent set forth in clause (i) as if such rejection had been made
pursuant to clause (i).
1.6 Good Faith Cooperation; Past Practices. The parties shall
perform their respective duties and exercise their respective rights under this
Agreement in the utmost good faith and fair dealing, and, subject to the terms
hereof, in a manner consistent with past dealings and practices (including
delivery requirements and tolerances and allowances with respect to Product
specifications) as of and during the 12-month period prior to the date of this
Agreement (subject to changes arising from Buyer's bona fide business
requirements provided that such changes (a) do not change any term, such as
price, specifically addressed in this Agreement, and (b) the increased costs
from any changes shall be borne by Buyer, notwithstanding any other provision of
the this Agreement (including clause (a) above) to the contrary. In the event
Buyer materially changes its specifications for Products hereunder, Seller may
request that the Product be deemed to constitute a New Product, in which event
Section 4.3 shall be applicable.
2. Term. Unless earlier terminated in accordance with the terms hereof,
this Agreement shall be in effect for a period of five years commencing on the
date hereof.
3. Delivery.
3.1 Deliveries. Delivery of Products shall be made F.O.B. delivered
to the Buyer Locations in accordance with the schedule and quantities set forth
on Buyer's Orders or such other locations as agreed to by Buyer and Seller.
Seller shall effect delivery in accordance with Buyer's reasonable instructions
in each Order, including instructions concerning load tags, delivery
appointments, pallets, drop trailers, and packaging/strapping, provided such
instructions are in accordance with past practices as of and during the 12-month
period prior to the date of this Agreement, subject to changes arising from
Buyer's bona fide business requirements, provided that the increased costs from
any changes shall be borne by Buyer. Buyer and Seller will cooperate to
establish preferred carriers to minimize freight expenses.
3.2 Title. Title, possession and risk of loss of all Products sold
hereunder shall pass to Buyer when the Product is unloaded at the Buyer
Locations, or such other locations as agreed to by Buyer and Seller.
3.3 Delivery Performance. If Seller fails to achieve a 95% on-time
delivery performance for Corrugated Products at any Buyer Location for any two
months in any 12 consecutive month period, Buyer may deliver Seller a notice of
deficient performance with respect to such Buyer Location. If Seller fails to
achieve a 95% on-time delivery performance at such Buyer
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Location during any 30 consecutive day period during the 90 days following
delivery of such notice of deficient performance, Buyer shall have the right, in
addition to any other rights available to it under this Agreement, to cancel
this Agreement with respect to such Buyer Location upon 30 days written notice
to Seller. This Section 3.3 shall not apply if the reason Seller has not shipped
Products to a Buyer Location is due to Buyer's default under this Agreement.
4. Price and Similar Terms.
4.1 Corrugated Products. The purchase price for the Corrugated
Products purchased and delivered during the term hereof shall be Seller's prices
and terms of payment in effect on the date of shipment as provided below:
(a) Initial Price. The initial purchase prices for Corrugated
Products shall be the prices as currently charged by Tenneco Packaging to the
various Buyer Locations as of the date hereof, which prices were determined in a
manner consistent with Tenneco Packaging's historical practices. The initial
price for new Corrugated Products shall be determined by Section 4.3 hereof
(without any rebates or year-end discounts). Except as adjusted in accordance
with the terms of this Agreement, prices shall be firm during the Term.
(b) Adjustments.
(i) Board Costs. Prices of Corrugated Products sold
under this Agreement shall be periodically adjusted up or down
("Adjustments") based on changes in the low value of the range (if a range
is provided) or the stated price (if no range is provided) for linerboard
and corrugating medium as listed in the "Price Watch:
Paperboard/Packaging" data published once a month in Pulp and Paper Week
(an example "Price Watch:Paperboard/Packaging" is attached hereto for
illustrative purposes only as Attachment C ). The Buyer Locations located
in the following states will use the "West" product pricing listed in
"Price Watch: Paperboard/Packaging": Washington, Oregon, California,
Montana, Idaho, Nevada, Wyoming, Colorado, Utah, Arizona and New Mexico.
All other Buyer Locations will use the "East" product pricing listed in
"Price Watch: Paperboard/Packaging." Price increases or decreases shall be
calculated as provided and illustrated in Attachment D hereto. Price
adjustments, whether increases or decreases, shall be made thirty days
after the publication date of "Price Watch: Paperboard/Packaging," but
only if the cumulative change from an existing price equals or exceeds
$10.00 per ton. "Price Watch" changes identified to specific geographic
regions shall trigger Adjustments applicable only to the affected regions.
(ii) Non-Board Costs. Adjustments shall also be made
during each calendar year of the Term to accommodate positive or negative
changes in Seller's costs for freight, energy, labor, factory overhead and
other non-Containerboard related costs ("Non-board Costs"). These
Adjustments shall be made once each calendar year, if applicable. During
February of each calendar year of the Term beginning February 2000, Seller
shall prepare a proposed Adjustment to accommodate changes in Non-board
Costs since the previous February's Non-board Costs Adjustment. Seller's
proposed Adjustments
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and written justification therefor, including substantiation thereof,
shall be mailed by Seller to Buyer by February 28 of each year. Any
Adjustment for Non-board Costs changes shall not take effect until Buyer
and Seller agree on the amount of the Adjustment. In any event, such
Adjustment shall be effective not earlier than June 1 nor later than June
30 following the applicable February computation. Any such Price changes
shall be limited to a maximum annual increase of 1.0%.
(iii) Negotiations and Arbitration. Any negotiation of
Adjustments required by this Section 4.1(b) shall be done in good faith.
In the event that the Parties are unable to reach agreement on revised
pricing, as called for by any of the provisions of this Section 4.1(b),
then the matter shall be submitted to arbitration. The arbitration shall
be conducted by a single arbitrator under the then-current rules of the
American Arbitration Association. The arbitrator shall be chosen by mutual
agreement from a list of persons knowledgeable in the area of corrugated
purchasing. The parties shall instruct the arbitrator to make its decision
as promptly as practical, and to effectuate the intent of the parties as
specified in this Agreement, including Section 1.6 and other Sections of
this Agreement. The arbitrator shall have the discretion to awards costs
to either party. The decision and award of the arbitrator shall be based
upon its interpretation and enforcement of the terms of this Agreement and
shall be final and binding.
4.3 New Products. The price for New Products shall be determined by
reference to the pricing factors for similar Products being sold by Seller
hereunder at the same Buyer Location, including quantity, size, board
combination, print coverage and margin. In the event the parties cannot agree on
the price for a New Product, the matter shall be submitted to arbitration as set
forth in Section 4.1(b)(iii) hereof.
4.4 Books and Records. Buyer shall have the right, at Buyer's
expense, upon reasonable notice and during normal business hours, to review
Seller's books and records with respect to Seller's Non-Board Costs and the
pricing of any new Products that Buyer agrees to purchase from Seller and Seller
agrees to sell to Buyer pursuant to Section 4.3 hereof. Seller shall have the
right, at Seller's expense, upon reasonable notice and during normal business
hours, to review Buyer's books and records relating to purchases of Products at
the Buyer Locations to verify compliance with the requirements of Section 1
hereof, including Buyer's purchases of Products from persons other than Seller.
All information obtained through any such review by either party or their
respective agents pursuant to this Section 4.4 shall be held in confidence.
Notwithstanding the foregoing, either party may require that the other party's
review be conducted by such other party's outside accountants if the first party
has a good faith concern that such disclosure would involve disclosure of
proprietary or confidential information.
5. Payment Terms. Terms of Payment shall be net 30 days. All payments
shall be made at such place of payment as designated by Seller in writing to
Buyer. Each party shall promptly reimburse the other party for any and all costs
and expenses of any nature or kind whatsoever (including but not limited to
attorneys' fees) in seeking to collect an unpaid amount
6. Warranty.
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6.1 General. Seller warrants that (a) it will have good title to all
Products, (b) the Products will be free and clear of all liens and encumbrances,
(c) the Products will be of good material and workmanship, free from defects,
and in conformance with Buyer's specifications (as the parties may agree in
writing to amend or modify such specifications from time to time), consistent,
with respect to both Corrugated Products and Containerboard, with the provisions
of Section 1.6 hereof as they relate to tolerances and allowances, and (iv) the
Products will be in compliance with specifications that Seller meets for
shipments to Seller's own container plants or used for its own products. Any
claims involving non-complying or damaged Products or for shortages shall be
made within 60 days after delivery to Buyer, unless Buyer first learns of such
non-compliance from a third party more than 60 days after the date of delivery
to Buyer, in which event Buyer shall give Seller notice as soon as reasonably
practical after learning of such non-compliance. All other claims shall be made
promptly after Buyer learns of such claim.
6.2 Compliance with Law. Seller shall, insofar as it relates to
compliance with material laws, rules and regulations, perform its services under
the Agreement in a manner generally consistent with past practices of TPI in
conducting the Containerboard Business as of and during the 12-month period
prior to the date hereof, including the Fair Labor Standards Act of 1938, the
Xxxxx-Xxxxxx Public Contracts Act, the Contract Work Hours and Safety Standards
Act, and laws prohibiting the use of convict labor. To the extent TPI, in
conducting the Containerboard Business as of and during the 12-month period
prior to the date hereof, furnished to Buyer Material Safety Data Sheets
containing health, safety, and other hazard communication information on the
Products consistent with OSHA's Hazard Communications Standard, Seller shall
continue to provide such information to Buyer.
7. Force Majeure. Neither Buyer nor Seller shall be liable for inability
to perform where such inability is the result of fire, flood, natural calamity,
weather, strike, government act or order, or any other cause reasonably beyond
the control of the party failing to perform. In the event Seller is excused from
performing because of force majeure, Buyer may obtain Products from alternative
sources, and may, if required to do so, honor reasonable commitments beyond the
expiration of the event of force majeure without liability to Seller, provided
that Buyer has acted reasonably under the circumstances in making such
commitments and that it was necessary for Buyer to make such commitments. In the
event Buyer is excused from performing because of force majeure, Seller may, if
required to do so, honor reasonable commitments beyond the expiration of the
event of force majeure without liability to Buyer, provided that Seller has
acted reasonably under the circumstances in making such commitments and that it
was necessary for Seller to make such commitments.
8. Default. In the event either party defaults in the prompt or full
performance of any material provision of this Agreement and such default was
intentional, the other party shall give written notice of default and the
defaulting party shall have thirty (30) days to cure the default. If the default
is not cured to the non-defaulting party's reasonable satisfaction, the
non-defaulting party shall have the right to terminate this Agreement effective
immediately. A party that is in default under this Agreement and to whom a
notice of default has been given with respect to such default shall not have the
right to terminate this Agreement. In determining the materiality of a default,
the occurrence or recurrence of an event or of similar events may be considered.
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9. Limitation of Damages. Buyer will have no liability to Seller except to
purchase and pay for Products and Seller will have no liability to Buyer except
to sell and deliver Products as set forth herein. In the event of a default in
payment for delivered Products, Seller's remedy shall be limited to the unpaid
contract price, together with such incidental damages, if any, as allowed by the
Uniform Commercial Code. In the event of any other default, the non-defaulting
party's damages shall be limited to the difference between the market or cover
price and unpaid contract price, together with such incidental damages, if any,
as allowed by the Uniform Commercial Code, but only for Products purchased to
Orders pursuant to this Agreement.
10. Separate Sales. Each shipment of Products under this Agreement shall
constitute a separate and distinct sale, and any default by either party with
respect to any shipment shall not affect the right of the other party to insist
upon full performance of the provisions of this Agreement for its full term.
11. Miscellaneous.
11.1 Notices. All notices or other communications hereunder (other
than purchase orders and similar communications) shall be deemed to have been
duly given and made if in writing and if served by personal delivery upon the
party for whom it is intended, if delivered by registered or certified mail,
return receipt requested, or by a national courier service, or if sent by
facsimile transmission; provided that the facsimile transmission is promptly
confirmed by telephone confirmation thereof, to the person at the address set
forth below, or such other address as may be designated in writing hereafter, in
the same manner, by such person:
If to Seller: Packaging Corporation of America
0000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Facsimile:
Telephone:
Attn: Chief Executive Officer
If to Buyer: Tenneco Automotive Inc.
000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Facsimile:
Telephone:
Attn:
Either party may from time to time change the address or facsimile number to
which notices shall be given by giving the other party written notice thereof.
Purchase orders and similar communication may be given in any commercially
reasonable fashion, based on the parties' course of dealing.
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11.2 No Third Party Benefits. This Agreement is made for the sole
benefit of Seller and Buyer and no other person shall have any right or remedy
or other legal interest of any kind under or by reason of this Agreement.
11.3 Waiver. The failure of either party to insist in any one or
more instances upon strict performance of any of the provisions of this
Agreement, or to take advantage of any of its rights, shall not operate as a
continuing waiver of such provisions or rights and shall not prevent such party
from insisting upon such provisions and taking advantage of such rights in the
future.
11.4 Assignment. Neither party to this Agreement may assign any of
its rights or obligations hereunder without the prior written consent of the
other party hereto, except that (i) in the event a party hereto merges or
consolidates with another person or transfers substantially all of its assets to
another person, such party's rights and obligations shall be assigned to such
other person and (ii) in the event Buyer transfers ownership of a Buyer
Location, Buyer shall assign its rights and obligations hereunder to the new
owner of such Buyer Location pursuant to a written assignment and assumption
agreement, a copy of which shall be provided to Seller. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns hereunder.
11.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois without regard to
its conflict of laws provision.
11.6 Entire Agreement. This Agreement embodies the entire agreement
between the parties with respect to the purchase and sales of Products and
cancels and supersedes any prior agreements, representations, or purchase orders
between the parties with respect to the matters covered in this Agreement.
Except for Buyer Locations, Products, delivery requirements, and price, no other
terms and conditions appearing on purchase orders, acknowledgments or other
forms shall be binding unless expressly agreed to by both parties in writing. No
amendment of this Agreement shall be effective unless stated in writing and
signed by both parties. The Attachments hereto are an integral part of this
Agreement and are incorporated by reference herein.
11.7 Severability. In the event that any provision of this Agreement
is held illegal or invalid for any reason, such illegality or invalidity shall
at the option of the party against whom the same is asserted not affect the
remaining parts of this Agreement, but this Agreement shall be construed and
enforced as if the illegal or invalid provision had never been inserted herein.
11.8 Interpretation. The word "including" shall mean "including
without limitation." The headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the parties and shall not
in any way affect the meaning or interpretation
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of this Agreement. The rights and remedies they may have at law or in equity,
which shall survive and remain available notwithstanding the expiration of any
rights hereunder.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as
of the day first above written.
PACKAGING CORPORATION OF AMERICA
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Secretary
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TENNECO AUTOMOTIVE INC.
By: /s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
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Title: Senior Vice President
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