Confidential
treatment has been requested for portions of this document. This
copy of the document filed as an exhibit omits the confidential
information subject to the confidential treatment request.
Omissions are designated by three asterisks (***). A complete
version of this document is being filed separately with the
Securities and Exchange Commission.
Eastman Kodak Company
Professional Lab
Sales Agreement
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PCA
LLC
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815
Matthews-Mint Hill Road
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Matthews, NC
28105
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704-588-4351
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Fax
704-845-8427
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dwithin@pcaintl.com
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Web URL
pcaintl.com
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Please
specify the name and address, if different from above, of the
individual who should receive notices, faxes, and mailings from
Kodak.
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David
Alexander, CEO with a copy to Dave Withington,
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815
Matthews-Mint Hill Road
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Matthews, NC
28105
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Buyer
Authorized Signature:
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/s/ David J.
Withington
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DAVID J.
WITHINGTON
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S V
P
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12/2/2005
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Kodak
Authorized Signature:
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Eastman Kodak
Company
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/s/ John
O’Grady
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Director, US
& C Sales & VP DFIS
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Digital &
Film Imaging Systems
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12-19-05
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/s/
[ILLEGIBLE]
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Kodak
Regional Manager Verification:
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Eastman Kodak
Company
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DFIS Contracts
Management
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343 State
Street
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Rochester, NY
14650-0508
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FAX
585-724-9089
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Kpro Lab Sales
Agreement
Tmp rev as of 3/27/03
This agreement
between Eastman Kodak Company (“Kodak”) and PCA LLC
(“Buyer”) covers a term beginning January 1
st , 2006
and ending June 30 th ,
2007 (“Term”). Neither party is obligated to renew this
agreement at the end of the Term nor to extend this agreement
beyond the Term.
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1.0
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Certain Obligations of
Buyer
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Subject to the terms of this
Agreement, Buyer shall purchase and use, for its North American
operations, (***) Color Negative Film during the Term,
except that Buyer may purchase up to 1% of its North American
requirements for film from other vendors for testing and
evaluation.
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Buyer shall purchase at least (***)
of Color Negative Film during calendar year 2006 and at least (***)
of Color Negative Film during the first six months of 2007 (each a
“Purchase Commitment”).
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Buyer shall pre-pay all orders via
wire transfer.
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Buyer shall provide a forecast to
Kodak during each month, except for the last three months, of this
agreement containing a 12-month estimate of its requirements for
the Products referred to in Sections 1.0 and 2.0.
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Buyer shall purchase and take
delivery of all quantities of the Products set forth in the first
3 months of each forecast it provides to Kodak.
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Buyer shall purchase 100 ISO
Film-5281 in minimum and multiple quantities of 1
pallet.
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Buyer shall purchase 200 ISO
Film-5795 in minimum and multiple quantities of 1
pallet.
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Buyer shall place all orders via the
Kodak B2B Partner Site at www.kodak.com/go/partner
whenever practicable.
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2.0 Certain
Obligations of Kodak
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Kodak shall provide Buyer (***) for
C-41 and RA-4 chemistry.
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(***)
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Film
choices (unperforated)
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35mm x 100'
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46mm x 100'
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(***)
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(***)
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(***)
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(***)
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(***)
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(***)
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Following the period beginning on
January 1, 2006 and ending on March 1, 2006 (the
“Ramp-Up Period”), Kodak shall ship Products ordered by
Buyer under this agreement within eight (8) days following
Kodak’s receipt of payment for such shipments. During the
Ramp-Up Period, Kodak will use commercially reasonable efforts to
ship Products ordered by Buyer under this agreement within fourteen
(14) days following Kodak’s receipt of payment for such
shipments. Following the Ramp-Up Period, Kodak will use
commercially reasonable efforts to ship Products ordered by Buyer
as soon as practicable following receipt of payment for such
shipments, it being Buyer’s expectation that most shipments
can be made the business day following such receipt of
payment.
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If
Buyer fails to achieve a Purchase Commitment, Kodak may, at
Kodak’s sole discretion, with respect to the Products to
which such commitment applies, (a) recover from Buyer an
amount equal to the difference between that which Kodak received
for such Products and that which Kodak would have received for such
Products had they been sold at applicable catalog/list price(s), or
(b) reduce the size of the discounts associated with such
Product(s) during the next six-month period of the agreement (if
any) by the percentage that Buyer fell short of such commitment.
Should Kodak elect to proceed under subpart (a) above, Buyer
shall pay the subject amount to Kodak within 45 calendar days of
Kodak’s written request for such amount.
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This agreement
applies only to the Kodak products referred to above
(“Products”). The Products sold to Buyer under this
agreement are not for resale and are only for the use or
consumption by Buyer in the operation of its business. Any resale
of Products will be a material breach of this agreement, allowing
Kodak to immediately terminate this agreement without an
opportunity by Buyer to cure.
Payment terms
are Cash Before Delivery (C.B.D.). Kodak will review Buyer’s
financial situation and credit risk multiple times during the Term.
If conditions warrant, Kodak may, at its sole discretion and
following written notice to Buyer, extend payment terms that are
more favorable to Buyer than those initially set forth
herein.
Kodak reserves
the right to increase or decrease prices for Products. Kodak shall,
however, increase or decrease prices no more than one time every
six months and shall limit any price increase or decrease to the
amount the PPI changed on a percentage basis during the immediately
preceding six months. As used in this Section 5.0,
“PPI” shall mean the seasonally adjusted Producer Price
Index for Finished Goods as published by The Bureau of Labor
Statistics of the U.S. Department of Labor. No adjustment shall be
made to prices unless the change in the PPI exceeded one and
one-half percent (1 1 / 2 %)
during such six-month period.
6.0 Delivery
and Inspection
Buyer must
inspect arriving shipments and report errors in shipment promptly.
Buyer must note visible damage and shortage on the carrier manifest
immediately upon unloading and report same to Kodak within 24 hours
after delivery. Concealed damage or shortages involving cartons
received intact must be reported to Kodak within 10 business days
after receipt. Products received by Buyer and not reported to Kodak
as damaged or shipped in error within such 10 day period will
be deemed accepted by Buyer but subject to the warranty set forth
in Section 8.0. For invoice disputes alleging shortages,
B
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