AMENDED AND RESTATED CAN SUPPLY AGREEMENTSupply Agreement |
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COCA COLA ENTERPRISES INC | Rexam Beverage Can Company | Coca-Cola Bottlers? Sales & Services Company LLC,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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EXHIBIT 10
AMENDED AND RESTATED CAN SUPPLY AGREEMENT
This Amended and Restated Can Supply Agreement (the “Amended and Restated Agreement”) is entered into by and between: (i) Rexam Beverage Can Company (“Rexam”), a Delaware corporation, with its principal place of business at 8770 West Bryn Mawr Avenue, 11 th Floor, Chicago, Illinois 60631; and (ii) Coca-Cola Bottlers’ Sales & Services Company LLC, a limited liability company organized and existing under the laws of Delaware, with its principal offices at 3200 Windy Hill Road, East Tower, Suite 300, Atlanta, Georgia 30339 (“CCB”), acting solely on behalf of and as agent for the Bottlers (as defined below) (each a “Party” and together, the “Parties,” and where applicable, shall be deemed to include the Bottlers, as defined below), and amends and restates that certain Can Supply Agreement entered into on or about January 1, 2004 by and between Rexam and CCB, as agent for certain Bottlers (the “Original CCB Agreement”).
RECITALS
WHEREAS, CCB acts as agent for certain Coca-Cola bottlers and other entities, including Coca-Cola Enterprises Inc. (“CCE”) and those other duly licensed Coca-Cola bottlers and related cooperative bottling/canning facilities or other entities set forth in Exhibit A attached hereto (each, individually, a “Bottler,” and collectively, the “Bottlers”); and
WHEREAS, REXAM owns and operates manufacturing plants throughout the United States which produce aluminum beverage containers; and
WHEREAS, CCE and Rexam are parties to that certain Can Supply Agreement executed by and between CCE and Rexam (at the time known as American National Can Company) and effective as of January 1, 1999, as amended (the “Existing CCE Agreement”); and
WHEREAS, pursuant to a certain Procurement Agency Agreement dated April 14, 2003 and other agency agreements between CCB and the Bottlers (collectively the “Agency Agreements”), CCB has been authorized by the Bottlers, who are in the business of, among other things, filling soft drink beverages into aluminum beverage containers comprised of 12 oz bodies and ends (the “Cans”) as specified in Exhibit B, to negotiate and enter into this Can Supply Agreement on their behalf; and
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WHEREAS, on or about January 1, 2004 CCB, acting solely as agent for and on behalf of certain Bottlers and Rexam, entered into the Original Agreement, which has an expiration date of December 31, 2006; and
WHEREAS, CCB and Rexam now desire to enter into this Amended and Restated Agreement in order to amend and restate the Original Agreement as set forth herein and to provide for the supply of Cans to certain production facilities operated by Bottlers identified in Exhibit A , all pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the covenants contained herein, the Parties hereby agree as follows:
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Authority. |
(a) CCB’s Agency . This Agreement is executed by CCB solely as agent for the Bottlers. CCB represents and warrants that pursuant to the Agency Agreements it is the authorized agent for the Bottlers, and is authorized to conduct negotiations, execute and manage agreements for the supply of Cans to the Bottlers for use within the Territory (as defined below). By the execution of this Agreement, CCB further represents that the Bottlers listed in Exhibit A consent to and shall be bound by this Agreement. CCB retains the right to add or delete Bottlers as mutually agreed from Exhibit A from time to time during the Term hereof. In the event of a deletion, the Bottlers, through CCB, will make commercially reasonable efforts to provide replacement volumes.
(b) Rexam’s Authority . Rexam represents and warrants to CCB that it has the authority to enter into and perform this Amended and Restated Agreement.
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Effect on Other Agreements. Upon execution hereof, this Amended and Restated Agreement shall replace and supersede both: (i) the Existing CCE Agreement; and (ii) the Original CCB Agreement, both in their entirety. For the avoidance of doubt, both the Existing CCE Agreement and the Original CCB Agreement shall be deemed terminated by mutual consent without penalty upon the execution hereof. |
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Term . The term of this Amended and Restated Agreement (the “Term”) shall commence on January 1, 2006, and, unless sooner terminated as provided herein, shall expire on *** (the “Termination Date”). |
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Description of Product. This Amended and Restated Agreement relates to Cans with the specifications as shown in Exhibit B (the “Specifications”). Rexam will have the right to place its name and/or logo on the Cans in such size and location as is customary in the industry. Upon request, Rexam will provide CCB with a certificate of conformity with each shipment indicating that the Cans included in the shipment have been inspected by Rexam and comply with the Specifications and all obligations of this Amended and Restated Agreement. |
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Territory. The obligation of Rexam to supply Cans, and the obligation of Bottlers to purchase Cans, pursuant to the terms hereof, shall apply only to filling locations owned or operated by the Bottlers that are physically located within the fifty United States or the District of Columbia, Canada, and/or Bermuda (collectively, the “Territory”). |
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Volume. The Cans will be supplied to the filling locations located within the Territory set forth for each Bottler in Exhibit A (and at any additional or substitute facilities hereafter acquired or otherwise designated by CCB on behalf of any of the Bottlers and agreed to in writing by Rexam which agreement by Rexam will not be unreasonably withheld) (collectively, the “Filling Locations”). During the Term of this Amended and Restated Agreement, each of the Bottlers shall purchase 100% of the Filling Locations’ respective individual requirements of Cans from Rexam in the sizes set forth in Exhibit B, except that each Bottler shall be allowed a commercially reasonable time to exhaust any existing supply of non-Rexam supplied Cans kept in inventory during the ordinary |
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Material has been omitted pursuant to a request for confidential treatment and filed separately with the SEC. |
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course of business as of the beginning of the Term hereof. If requested by Rexam, and not more than once annually, CCB shall provide a certificate from an officer of CCB attesting that each Bottler has complied with its annual purchase requirements for the Filling Locations as set forth herein. If, for any reason (other than an event of Force Majeure covered in Section 23, or a metal supply issue covered in Section 14, below) Rexam is unable to supply bodies and/or ends, as the case may be, of satisfactory quality, any affected Bottler(s) shall be relieved of any obligation to buy from Rexam the unsatisfactory item under the terms of this Amended and Restated Agreement until Rexam corrects the problem on an ongoing basis to the reasonable satisfaction of the affected Bottler(s). In such event and only for the duration of time that such quality problem exists: (a) Rexam shall provide the relevant Filling Location(s) with fully conforming bodies and/or ends from an alternate Rexam plant and Rexam shall absorb any excess freight involved in shipping from the alternate plant; (b) if Rexam is unable to procure conforming bodies and/or ends from a Rexam plant, the affected Bottler(s) may procure conforming bodies and/or ends from any other source; (c) Rexam shall pay any affected Bottler the difference between the purchase price to such Bottler for such conforming bodies and/or ends and the purchase price such Bottler otherwise would have incurred hereunder; and (d) all bodies and/or ends purchased by affected Bottlers from any alternate source pursuant to this paragraph shall be credited against the relevant Bottler’s purchase obligations hereunder. |
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Orders. |
(a) Sales Subject to Orders. All sales of Cans under this Amended and Restated Agreement will be subject to written orders issued by the Bottlers (through CCB or otherwise) to Rexam (“Orders”).
(b) Quantities and Dates. Orders will specify quantities, delivery dates and points of delivery.
(c) Special Terms. Bottlers (through CCB or otherwise) and Rexam may agree in writing to special terms, such as deliveries in a specified manner, for which Rexam may request additional compensation. Rexam agrees that all invoices will include the price of the Cans separate from the compensation for such special terms.
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(d) Adjustments. In the event of changes identified in Section 8(c), either Bottler or Rexam may, in writing, request an equitable adjustment in the prices or delivery terms of the relevant Order. Any and all claims and requests by Rexam under this subsection will be deemed waived unless made in writing and received by Bottler within twenty (20) days from the receipt by Rexam of the written notification for such changes.
(e) Order Termination
(i) With or Without Cause. Bottlers (through CCB or otherwise) may terminate, with or without cause, any single Order upon written notice to Rexam. In the event of such termination, Rexam may in writing make claim for the cost of any work in process and finished stocks, but not for any cost of design, engineering, or development, special tooling or general purpose equipment unless such items have been specifically ordered and separately priced in the terminated Order. Other than as specified in the preceding sentence, Rexam will not be entitled to any claim, remedy or damages from Bottler with respect to termination of an Order. Any and all claims or requests by Rexam under this subsection will be deemed waived unless made in writing and received by Bottler within five (5) business days (not including holidays on which Rexam’s executive offices are closed) from the date of termination.
(ii) Effect on Other Orders . Termination of any single Order for any reason will not affect any other Order between Bottler and Rexam, or this Amended and Restated Agreement.
(f) Time. Time is of the essence in all Orders. Rexam will promptly advise Bottlers of any delay or anticipated delay in delivery or performance.
(g) Supersede Preprinted Terms in Other Documents. The terms and conditions of this Amended and Restated Agreement will supersede any preprinted or standard terms which may appear on any purchase orders, invoices, acknowledgements, or similar documents exchanged between Rexam and Bottlers and/or CCB as agent for the Bottlers.
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Price. The base price(s) for Cans, and adjustments thereto, under this Amended and Restated Agreement shall be as stated in the Pricing Schedule, attached as Exhibit C to this Amended and Restated Agreement. |
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Payment; Risk of Loss. Payment is due *** days after the date of invoice (if such invoice is sent electronically, which is the method preferred by both Parties); or *** days from receipt of invoice (if such invoice is not able to be sent electronically). Payment for any services provided pursuant to Exhibit D is due in full *** days after invoice date. Amounts not paid by the due date shall bear interest at 2% over the prime rate announced from time to time by Bank One, Chicago, Illinois, or such lesser rate as provided by law. Notification of payments due shall be directed as follows: (i) if to Coca-Cola Enterprises Inc (“CCE”) or to The Coca-Cola Bottling Company Consolidated (“Consolidated”) or any other Bottler owned or controlled by Consolidated, bill(s) of lading for Cans shipped or invoices for all other charges (e.g., for services provided pursuant to Section 15 hereof) shall be delivered by the carrier or by Rexam to CCE’s or Consolidated’s respective filling locations; (ii) if, as to hot-filled Cans processed in the Niles, Illinois facility operated by Coca-Cola Bottling Company of Chicago (“Niles”) or such other facilities as designated by CCB in the future, all invoice(s) shall be sent by Rexam to Coca-Cola North America, a division of The Coca-Cola Company, at: Coca-Cola Company, Vender # 1037076, Minute Maid Hot Fill, PO Box 2467, Atlanta, GA 30301; and (iii) if to any other Bottler not listed in subsections (i) or (ii) above (hereinafter the “Participating CCBA Bottlers”), daily electronic reports of shipments made or services provided pursuant to Section 16 to participating CCBA Bottlers, shall be sent by Rexam to The Coca-Cola Bottlers’ Association, Inc. at 3282 Northside Parkway, Atlanta, Georgia 30327. Each individual Bottler, including the Participating CCBA Bottlers, shall be solely responsible for payment of all amounts due from it under this Amended and Restated Agreement. If payments are not received within 60 days, Rexam has the right to offset any rebates Rexam may have paid to CCB that are allocable to such Bottler’s outstanding receivables, from any future rebate payments to CCB, subject to reinstatement once payment is made. CCB shall use reasonable commercial efforts to resolve any payment disputes between Rexam and any of the Bottlers. Title and risk of loss shall pass to each applicable Bottler upon delivery of Cans to the common carrier, even if Rexam may have selected the carrier. |
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Material has been omitted pursuant to a request for confidential treatment and filed separately with the SEC. |
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Packaging and Shipping. |
(a) Packaging Standards . All packing and packaging will comply with good commercial practice and applicable transport regulations, and will consist of suitable containers for optimum protection of the goods and for in-plant handling and storage.
(b) Carrier and Route . Delivery will be made by the carrier and route specified by Rexam.
(c) Labeling . All shipping containers will be labeled in accordance with applicable laws and regulations relating to the transport of goods.
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Delivery. Delivery will not be deemed complete until the Cans have actually been received and accepted by Bottler following completion of its standard inspection procedures. All inspections will be completed within a reasonable period of time. |
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Non-Conforming Orders. |
(a) Inspection and Testing . All Orders of Cans are subject to inspection and rejection by Bottler within a reasonable period of time prior to payment.
(b) Cancellation for Non-Conformance . Bottler may cancel an Order for any nonconformity in any lot or installment delivered and performed hereunder, including, without limitation, failure of Rexam to deliver the Order of Cans when due, delivery of defective or otherwise nonconforming Cans, or delivery of an insufficient quantity of Cans.
(c) Additional Remedies . Without limiting any of Bottler’s rights, Bottler may require Rexam, at Rexam’s expense:
(i) to promptly repair or replace any or all rejected Orders of Cans, or
(ii) to refund the price of any or all rejected Orders of Cans.
(d) Risk of Loss for Rejected Orders . All rejected Orders of Cans will be held for Rexam’s prompt instruction and at Rexam’s risk and expense.
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Metal. |
(a) The Parties acknowledge that, subject to the Parties’ obligations regarding
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soft tolling set forth in Section B.1 (a) of Exhibit C, soft tolling of metal is a part of this Amended and Restated Agreement. To that extent, CCB, on behalf of the Bottlers, shall provide Rexam with reasonable advance notice of any change in designated aluminum suppliers (and such newly designated supplier shall be a qualified first tier metal sheet producer, or second tier sheet producer reasonably acceptable to Rexam), no later than 120 days prior to implementing such change to this Amended and Restated Agreement (excluding 2006, which has been dealt with as of the date hereof to the Parties’ mutual satisfaction). Notwithstanding the foregoing, in the event of an actual, material quality problem or shortfall in the metal supplied to Rexam, Rexam shall retain the right to qualify or disqualify any of CCB’s designated aluminum supplier(s) provided , however, that the criteria used to disqualify such supplier(s) was pre-existing ( i.e. , in effect prior to the execution hereof), was uniformly established for all aluminum suppliers to Rexam, and was disclosed to CCB and agreed upon prior to the execution hereof; and provided further that Rexam provide CCB with reasonable advance written notice of the effective date of any such disqualification. Upon any such notice of disqualification, the Parties will discuss a mutually agreeable aluminum supplier, and the Parties shall agree to use any other aluminum supplier if such supplier is then qualified by Rexam as set forth above (Rexam agrees to provide CCB a listing of all aluminum suppliers qualified to do business with Rexam, which list may be updated quarterly, as needed). In the event a supplier not currently qualified to supply Rexam is required for supply reasons currently unforeseen by Rexam or CCB, and the Parties cannot reach agreement on such an unqualified aluminum supplier within *** days from the date of such disqualification, Rexam may use any other aluminum supplier so long as such aluminum meets the specifications contained in this Amended and Restated Agreement, and (ii) if, and only if so agreed to by Rexam and CCB, all incremental cost adjustments, if any, to implement such new aluminum supplier are borne by the Bottlers for the anticipated period of time required (not to exceed one hundred and twenty (120) days), or until a mutually agreed to supplier is found.
(b) At any time during the Term of this Amended and Restated Agreement,
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Material has been omitted pursuant to a request for confidential treatment and filed separately with the SEC. |
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CCB may elect to direct the disposition of in-plant scrap, provided however, that: (i) Rexam shall not be required to terminate any pre-existing, enforceable annual ( i.e. , of no greater than one year in length) agreement otherwise requiring disposition of in-plant scrap; and (ii) that, subject to the mutual agreement of CCB and Rexam, there will be commensurate annual economic adjustments (based on periodic changes in the price of ingot) made to Rexam with respect to the remaining Term and subsequent projected volume of this Amended and Restated Agreement, to reflect the impact of implementing this right.
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Purchases; Forecasts. Purchases of Cans will be made via purchase order or alternative electronic means as set forth in Section 8 above. To facilitate such purchases, each individual Bottler, through CCB or otherwise, shall advise Rexam, prior to each October 31, of the Filling Locations’ projected annual requirements of Cans under this Amended and Restated Agreement, by location, for the upcoming calendar year (the “Forecasted Volume”) and, using commercially reasonable judgment, shall provide rolling 90 day forecasts, by filling location, by size, by label, on a monthly basis throughout the year (a “90 Day Rolling Forecast”). All Forecasted Volume shall be provided for planning purposes only and shall not constitute a firm offer to buy, provided, however, that Rexam may use reasonable judgment to produce Cans pursuant to the relevant 90 Day Rolling Forecast only, in advance of receipt of actual orders, in which event all such Cans shall be purchased by the applicable Bottler within ninety (90) days. Such Forecasted Volume shall remain in effect until adjusted by each Bottler upon reasonable advance notice to Rexam; provided, however, that such adjustments shall not affect each Filling Location’s percent purchase requirement set forth above in Section 7. Substantial increases in volume that are not consistent with a Bottler’s Forecasted Volume or significant increases in the Forecasted Volume from year to year may require discussion and agreement between Rexam and the applicable Bottler on meeting such increase in volume, and the Parties agree to work in good faith to reach such agreement. |
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Rexam’s Services . Rexam may perform the services described on Exhibit D attached hereto, as frequently as is reasonably necessary and at the applicable Bottler’s specific request, pursuant to the rates for such services as specified on such Exhibit D, which rates may be subject to change from time to time by Rexam. CCB will make Exhibit D available to each Bottler. |
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Dunnage. The Parties’ obligations with respect to dunnage are set forth in the attached Exhibits E, E-1, E-2, and F, which CCB will make available to each Bottler. |
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Warranties, Claims and Limitation of Liability. The Parties’ obligations with respect to warranties, claims, and limitation of liability are set forth in the attached Exhibit G. |
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Termination. |
(a) In addition to any other termination rights available under applicable law or set forth herein, at any time prior to the Termination Date, CCB may immediately terminate this Amended and Restated Agreement with Rexam (as to any Bottler(s) or all Bottlers), or Rexam may terminate this Amended and Restated Agreement with CCB or any of the Bottlers, in either case upon notice to the other Party if such Party, or any of the Bottlers, as the case may be: (i) is deemed bankrupt or shall make an assignment for the benefit of its creditors, or a receiver is appointed for it or for any of its properties or it is adjudged to be insolvent; or (ii) defaulted in the performance of any material term or condition of this Amended and Restated Agreement and such default has not been remedied within thirty (30) days after the giving of written notice with respect to such breach to the defaulting Party. Any such acts of, by or to a Bottler shall give rise to a right to terminate solely as to that Bottler and not as to any other Bottler or CCB. In the event that this Amended and Restated Agreement is terminated with respect to any individual Bottler, the Amended and Restated Agreement shall remain in full force and effect among Rexam, CCB, and the remaining Bottlers.
(b) CCB shall not be responsible or liable for any Bottler’s failure to perform its obligations hereunder. The termination of any or all of the Agency Agreements shall have no effect on this Amended and Restated Agreement, provided, however, that any new or successor agent of the affected Bottler(s) shall notify Rexam that it is the new or successor agent for the Bottlers and such new or successor agent shall agree to be bound by the terms of this Amended and Restated Agreement as if the new or successor agent had been the original agent.
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Effect of Termination. Upon termination of this Amended and Restated Agreement for any reason, each Bottler shall purchase all Cans and otherwise non-usable Bottler -specific manufacturing supplies and related items previously ordered for the relevant Bottler. The price which each affected Bottler shall pay for Cans and any otherwise non-usable Bottler specific manufacturing supplies and related items as a result of any termination shall be the price in effect hereunder upon the effective date of termination, inclusive of any soft tolling. |
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Indemnity. Notwithstanding anything to the contrary set forth in Exhibit G, Rexam will indemnify and hold harmless CCB and Bottlers, their subsidiaries, officers, agents, employees and customers against all claims, costs (including, without limitation, reasonable attorneys’ fees) and damages (including, without limitation those resulting from recall of Cans) arising from (i) any defect in the Cans, (ii) breach of any warranties or representations of Rexam set forth in this Amended and Restated Agreement, and (iii) breach of any term or condition set forth in this Amended and Restated Agreement by Rexam. |
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Insurance . Rexam will obtain and maintain at its’ own expense through a combination of comprehensive general liability insurance and umbrella liability insurance, which includes products liability coverage, with insurance companies that have a minimum A.M. Best Rating of A-VII in the amount of at least five million dollars ($5,000,000) per occurrence combined single limit, aggregate limit of ten million dollars ($10,000,000). Rexam will provide CCB and, upon request, the Bottlers with a certificate of insurance evidencing such insurance and naming CCB and the Bottlers listed in Exhibit A as additional insureds within thirty (30) days of execution of this Amended and Restated Agreement. Such certificate will further contain a provision that said policy or policies cannot be cancelled, terminated, non-renewed or materially changed during the Term without thirty (30) days prior written notice to CCB. The stipulated l |






