Supply Agreement Terms and Conditions - Churchs Operators Purchasing Associating Inc. and Tyson Foods Inc.
SUPPLY AGREEMENT TERMS AND CONDITIONS
Supplier: Tyson Foods, Inc.
Effective Date of Agreement: April 1, 1999
This Agreement is by and between Churchs Operators Purchasing Association, Inc.
("COPA"), and the Supplier named above.
BACKGROUND
A. Supplier has substantial experience in the production and/or supply of
certain types of products and supplies. In connection with a Bid Request
Package (the "Bid Package") submitted by Supplier to COPA certain products of
Supplier have been approved in accordance with the terms of this Agreement,
and such products are listed on Exhibit A attached hereto and incorporated
herein collectively referred to as the "Products").
B. Supplier and COPA desire that Supplier supply the Products, pursuant to
the terms of this Agreement, and approval by COPA of Supplier to supply the
Products to approved distributors ("Distributors") and members of COPA
("Members"), the mutual covenants and obligations contained herein, and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. APPROVAL OF PRODUCTS
A. Initial Approval - As of the date of this Agreement, AFC Enterprises,
Inc. ("AFCE") has tested samples of the Products which have been provided by
Supplier for sampling by AFCE, and AFCE and COPA have approved such Products.
All Products must be produced in compliance with the AFCE Quality Standard
set forth on Exhibit A, or any superseding standard approved and issued by
AFCE or by COPA, provided, however, Supplier shall receive reasonable prior
written notice of any such superseding standard.
B. Product Modifications - If Supplier makes any improvements, modifications
or changes to any of the Products, Supplier shall immediately notify COPA of
same in writing specifying the improvement, modification or change. AFCE or
COPA, in their sole discretion, must approve any such improvements,
modifications or changes to the Products in writing before Supplier may sell
such Products under this Agreement to any of the
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Distributors or Members. After approval by COPA or AFCE, any such new or
modified Products shall be added to Exhibit A and attached to this Agreement.
C. Additional Testing - AFCE or COPA may conduct testing of the products
throughout the term of this Agreement. Supplier shall cooperate in such
testing and shall supply product samples and allow visits to its facilities
as reasonably requested by AFCE or COPA. If any of the Products are rejected
or disapproved by AFCE or COPA or discontinued by AFCE in its system, COPA
may terminate this Agreement without obligation, except that COPA shall be
liable for finished product, packaging materials and any ingredients which
are unique to the Products and conform to specifications as set forth in the
minimum/maximum agreement attachment.
2. ORDERS
A. Acceptance - The Distributor(s) who have been approved in connection with
the supply of Products under this Agreement are set forth on Exhibit A.
Orders for Products shall be given by a Distributor to Supplier whereby the
Distributor shall purchase Products from Supplier, for the purpose of then
selling such Products to the Members. Supplier shall accept orders for
Products from the Distributor(s) and shall sell and deliver the Products to
such Distributor(s), provided, however, that Distributor must meet the credit
approval of Supplier. Supplier may also, but is not obligated to, accept
orders for Products directly from Members who meet the minimum shipping
requirements as established by Supplier and who meet the credit approval of
Supplier and in such cases shall sell and deliver the products to such
Members in accordance with the terms of Section 4.a. The purchase orders and
other forms of Supplier or Distributor shall govern the purchases by
Distributor from Supplier, and the purchase orders and other forms of
Supplier and the Member shall govern the individual purchases by the Member
from Supplier.
B. Approved Distributors - Supplier agrees to sell Products under this
Agreement only to Distributors who are approved by AFCE, as identified from
time to time in writing by COPA. Upon written notice by COPA or AFCE to
Supplier, Supplier shall cease selling Products to any Distributors or
Members. If COPA or AFCE elects to use any different distributors, COPA will
notify Supplier in writing and Supplier shall commence selling Products to
such different distributors within ten (10) days after such notice, and
provided that such distributors meet the credit approval of Supplier. COPA
shall not be responsible in the event that any of its Members should
discontinue ordering or requesting Product through the Distributor(s) or
Supplier.
C. Credit Approval - For all purposes of this agreement, credit approval of
the Supplier shall be in accordance with reasonable credit terms and
according to standard credit policies.
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3. SUPPLY OF PRODUCTS
A. Supply - Supplier shall maintain inventories of the Products in
sufficient quantities to fill the orders of Distributor(s) and Members
pursuant to Section 2 without delay. Supplier shall not deliver or sell to
any Distributor(s) or Members any of the Products which COPA has specifically
requested Supplier not to sell or deliver. If Supplier discontinues
production, delivery or sales of any of the Products, it shall so notify COPA
of same in writing at least sixty (60) days prior to any discontinuance.
B. Container Markings - All containers in which Products are shipped under
this Agreement shall be clearly and conspicuously marked with the following
legend: "EXCLUSIVELY FOR COPA MEMBERS", and/or such other words or markings
designated by COPA.
C. Product Markings - All Products delivered or sold to the Distributor(s)
or Members shall bear whatever trademarks, trade names, logos or other
identifying markings (the "Markings") as COPA or AFCE shall prescribe.
Supplier shall only use or affix the Markings on Products which are delivered
or sold to the Distributor(s) or Members. AFCE or COPA shall provide the form
of all Markings to Supplier and Supplier shall affix such Markings precisely
in the place(s) on each of the Products as AFCE or COPA shall designate.
Supplier shall bear all costs of affixing such Markings and of all artwork,
printing plates or any other miscellaneous items which are required as part
of the production process of the Products.
D. Rejection and Substitute Supply - Any Product samples failing to meet the
standards set forth in the Quality Standard or otherwise pursuant to Section
1.a will subject the entire production lot of which they are a part to
rejection at no cost to COPA, the Distributor(s) or the Members. In the event
that a production lot is rejected for failure to meet the requisite standards
set forth in Section 1.a, Supplier will deliver a substitute production lot
to the pertinent distribution warehouse within 48 hours after Supplier is
notified of the rejection. Where product quality or performance problems
arise in the operations of any Member, Supplier shall at COPA's or the
Member's request, promptly visit those operations and address the problem
areas in a timely manner.
4. PRICES
A. Initial and Later Prices - Supplier's prices ("Price") for each Product
shall be on a delivered basis, shall include delivery and shall be as set
forth on Exhibit A for the period of time (the "Initial Price Term"), if any,
set forth on Exhibit A. If the Price is not fixed for the Initial Price Term
or any later term, Supplier shall give COPA at least thirty (30) days written
notice before any changes to such prices shall take effect. In the event any
Members order Products directly from Supplier, in quantities lower than the
minimum orders for distribution centers as set forth in the Bid Package,
Supplier shall apply prices for such
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orders which reflect the increased cost in shipping and handling of smaller
orders which are less than the minimum brackets set forth in the Bid Package.
B. Price Adjustment - If there is an Initial Price Term set forth on
Exhibit A which expires before the end of the Contract Term as defined in
Section 13.a, within thirty (30) days before the end of the Initial Price
Term, the parties will negotiate in good faith to set the Price for the
period following the Initial Price Term (the "Subsequent Price Term"). If the
Price is based on the cost-plus method, within thirty (30) days before the
end of the Initial Price Term or any Subsequent Price Term, Supplier will
provide COPA with an itemized list of its cost of raw materials for the
purpose of adjusting the Price for the next Subsequent Price Term. If the
parties are unable to agree on the price for the Subsequent Price Term within
thirty (30) days after the Initial Price Term, COPA shall be entitled to re-
bid for the Products and terminate this Agreement upon thirty (30) days
written notice to Supplier.
C. Modification of Freight Quotes - The freight quotes set forth on Exhibit
A may be modified in the event that Supplier experiences significantly
increased actual freight rates during the term of this Agreement. In the
event that Supplier wishes to increase the freight quotes set forth on
Exhibit A, Supplier shall submit to COPA documentation which verifies
Supplier's freight costs immediately prior to the effective date of this
Agreement, on a weekly basis during the term of this agreement, and at the
time Supplier wishes to seek an increase. Following a review of this
documentation, COPA and Supplier will negotiate in good faith in order to
reach a reasonable and mutually agreeable adjustment in the freight quotes
set forth on Exhibit A, but only for the time period that Supplier
experiences such actual increased freight rates. After any such adjustment
has been agreed upon, the adjustment will be reviewed by COPA and Supplier on
a periodic basis, at least every 30 days, until the adjustment is removed as
a result of a decrease in suppliers actual freight rates and the original
freight rates quoted on Exhibit A shall apply. If the parties are unable to
reach agreement on an adjustment as stated above within thirty (30) days
after Supplier submits all the documentation described above, either party
may terminate this Agreement upon thirty (30) days written notice.
5. PAYMENTS
Payment for the Products delivered by Supplier shall be made by and shall be the
sole responsibility of the Distributor(s) or Members. Supplier shall invoice the
Distributor(s) or Members, as the case may be, directly for all Products
supplied by Supplier. The invoices and other forms of Supplier, and other
agreements between Supplier and the Distributor(s) or Members, shall govern the
terms of payment for the Products. Supplier shall have no recourse against COPA
for any non-payment of Supplier's invoices for Products sold and/or delivered to
the Distributor(s) or Members.
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6. DELIVERY
All Product shall be transported by Supplier or a carrier designated by Supplier
unless another carrier is designated by the Distributor(s) or Members at the
time an order is placed. Each shipment will be accompanied by a packing slip,
and the count and/or weight evidenced by such slip will be conclusive unless
Supplier is notified in writing of a discrepancy by the Distributor(s) or
Members within ten (10) days following delivery. Title to, liability for, and
risk of loss of all Product sold hereunder shall remain with Supplier until
delivery, whereupon title to, liability for and risk of loss shall pass to
Distributor(s) or the Member, as the case may be.
7. WARRANTIES
The Products produced by Supplier under this Agreement shall conform to the
specifications set forth in the Bid Package and the samples provided by Supplier
to COPA and AFCE for each of the Products. The Products shall also conform to
the specifications set by AFCE as modified from time to time and notified to
Supplier in writing. The Products shall be merchantable and free from defects in
material and workmanship and shall comply with all content and labeling
requirements under applicable laws. Supplier acknowledges that the samples
provided to COPA and AFCE induced AFCE to designate Supplier and approved
Supplier Products pursuant to this Agreement, and induced COPA to enter into
this Agreement. Upon the request of any Distributor or Member, Supplier shall
replace, at Supplier's expense or refund, the full purchase price for any
Product which is defective or fails to conform in any way to the samples or the
specifications set forth in the Bid Package or by AFCE. This warranty shall
control insofar as the same may conflict with any warranty or limitation on
warranty set forth in Supplier's forms.
8. CONFIDENTIAL INFORMATION
A. Definitions - The term "Confidential Information" as used in this
Agreement means secret, confidential or proprietary information of COPA and
AFCE, including without limitation, lists of Distributor(s), Members and
products and supplies approved by COPA and AFCE. The term "Confidential
Information" does not include information that has become generally available
to the public by the act of one who has the right to disclose such
information without violating any right of COPA or AFCE. The term
"Confidential Information" does not include information which is known to the
Supplier prior to its disclosure by COPA or AFCE, as evidenced by the
supplier's written records, or which is independently developed without using
the confidential information.
B. Ownership - Ownership of all trade secrets of COPA and the Confidential
Information furnished or disclosed by COPA and AFCE to Supplier hereunder is
and shall remain the property of COPA and AFCE. Any reproductions, notes,
specifications, manuals, summaries or similar documents relating to the trade
secrets and Confidential
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Information shall become and remain the property of COPA and AFCE
immediately upon creation.
C. Nondisclosure - Supplier agrees that it will not, during or after the
term of this Agreement for so long as any such information remains trade
secrets, use or permit the duplication or disclosure of any trade secrets
(other than to an employee of Supplier who must have such information for
the sole purpose of supplying the Products contemplated under this
Agreement), unless such use, duplication, or disclosure is specifically
authorized in advance and in writing by the Vice President of COPA. Supplier
agrees that it will not, for a period commencing with the date of this
Agreement and for so long thereafter, up to a maximum of three (3) years
after termination of this Agreement, as any such information remains
competitively sensitive, use or permit the duplication or disclosure of any
Confidential Information of COPA to any person (other than to an employee of
Supplier who must have such information for the sole purpose of supplying
the Products contemplated under this Agreement), unless such use,
duplication, or disclosure is specifically authorized in advance and in
writing by the Vice President of COPA.
9. INDEMNIFICATION
Supplier shall and hereby agrees to indemnify, defend and hold COPA and AFCE and
its Members harmless from and against any and all actions, claims, costs
(including attorney's fees), damages, judgments and liabilities whatsoever,
including without limitation any products liability claims, in law or equity,
arising out of (i) the production, supply, distribution, delivery or sale by
Supplier of any products or goods or (ii) the breach by Supplier of any of its
obligations or representations under this Agreement.
10. INSURANCE
A. During the term of this Agreement, Supplier shall maintain and keep in
force, at its own expense, the following minimum insurance coverages and
minimum limits:
(i). Workers' Compensation Insurance - with statutory limits as
required by the laws and regulations applicable to the employees of
Supplier who are engaged in the performance of this Agreement.
(ii) Employer's Liability Insurance - for employee bodily injuries
and deaths, with a limit of $500,000 each accident.
(iii) Comprehensive or Commercial General Liability Insurance -
covering claims for bodily injury, death and property damage, including
Premises and Operations, Independent Contractors, Products and Completed
Operations, Personal Injury, Contractual, and Broadform Property Damage
liability coverages, with limits as follows: Occurrence/Aggregate Limit
of $1,000,000 for bodily injury, death and property damage each
occurrence and $2,000,000 general aggregate or Split liability limits
of: $1,000,000 for bodily injury per person, $1,000,000 for bodily
injury per occurrence, and $500,000 for property damage.
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(iv) Comprehensive Automobile Liability Insurance - covering owned,
non-owned and hired vehicles, with limits as follows: Combined Single
Limit of $500,000 for bodily injury, death and property damage per
occurrence, or split liability limits of: $500,000 for bodily injury per
person; $500,000 for bodily injury per occurrence; and $250,000 for
property damage.
B. All such policies of insurance shall provide that the same shall not be
canceled nor the coverage modified nor the limits changed without first
giving thirty (30) days' prior written notice thereof to COPA. No such
cancellation, modification or change shall affect Supplier's obligation to
maintain the insurance coverages required by this Agreement.
C. Except for Workers' Compensation Insurance, COPA shall be named as an
Additional Insured on all such required policies. All liability insurance
policies shall be written on an "occurrence" policy form and by insurance
companies acceptable to COPA.
D. Supplier shall be responsible for payment of any and all deductibles
from insured claims under its policies of insurance. The coverage afforded
under any insurance policy obtained by Supplier pursuant to this Agreement
shall be primary coverage regardless of whether or not COPA has similar
coverage.
E. Supplier shall not perform under this Agreement unless and until
certificates of such insurance, including renewals thereof, have been
delivered to and approved by COPA. COPA shall, upon written request to
Supplier, promptly received a certified copy of any or all of the insurance
policies required hereunder.
F. The minimum limits of coverage required by this Agreement may be
satisfied by a combination of primary and excess or umbrella insurance
policies.
G. COPA shall have the right to, at any time during the term of this
Agreement and upon written notice to the Supplier, increase the minimum
limits of insurance coverage in a commercially reasonable amount or otherwise
modify the insurance requirements of this Agreement in a commercially
reasonable manner.
H. If Supplier shall fail to comply with any of the insurance requirements
herein, COPA may, at its sole discretion and upon written notice to Supplier
by COPA, terminate this Agreement. The maintenance of the insurance coverages
required under this Agreement shall in no way operate to limit the liability
of Supplier to COPA under the provisions of this Agreement.
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11. INSPECTION
COPA and AFCE's representatives shall have the right to inspect Supplier's
manufacturing facilities during normal business hours at any time during the
term of this Agreement, upon reasonable notice by COPA or AFCE of such
inspection.
12. FUTURE BIDS
During the term of this Agreement, COPA and AFCE shall have the right to
evaluate the Supplier based on Supplier's pricing, product quality and
consistency of delivery and other factors. Supplier will cooperate in such
evaluation. COPA and AFCE shall also have the right to test other suppliers with
respect to the supply of products similar to the Products being supplied by
Supplier.
13. TERM AND TERMINATION
A. Term - The term of this Agreement (the "Contract Term") shall commence
on the effective date hereof and shall continue in effect until the date
set forth on Exhibit A.
B. Events of Default - Supplier shall be in default hereunder if any one
or more of the following events happen:
(i) Supplier shall have serviced Distributors or Members in a manner
detrimental to the operation of the restaurants
(ii) Supplier shall otherwise fail to perform or comply with any of
the material terms or conditions in this Agreement, for reasons other
than an event of Force Majeure, and such failure shall continue for a
period of seven (7) days after written notice thereof from COPA to
Supplier; or
(iii) The filing by Supplier of a voluntary petition of bankruptcy or
a voluntary petition or answer seeking reorganization, rearrangement,
or readjustment of its debts, or any relief under any bankruptcy or
insolvency act or law, now or hereafter existing, or any agreement by
Supplier indicating consent to, approval of, or acquiescence in, any
such petition or proceeding; or
(iv) The application by Supplier or the consent or acquiescence of
Supplier in the appointment of a receiver or trustee for all or a
substantial part of any of its properties or assets; or
(v) The making by Supplier of a general assignment for the benefit
of creditors; or
(vi) The inability of Supplier or the admission of Supplier in
writing of its inability to pay its debts as they mature; or
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(vii) The filing of an involuntary petition against Supplier seeking
reorganization, rearrangement or readjustment of its debts or for any
other relief under any bankruptcy or insolvency act or law, now or
hereafter existing, or the involuntary appointment of a receiver or
trustee for Supplier for all or a substantial part of its property or
assets, or the issuance of a warrant or attachment, or execution of
similar process against a substantial part of the property of Supplier
and the continuance of such for one hundred and twenty (120) days
undismissed or undischarged.
(viii) Supplier shall fail to meet the quality standards set by AFCE
and AFCE. shall notify COPA that supplier is no longer approved.
14. EFFECT OF TERMINATION
Upon the expiration or the termination of this Agreement for any reason,
Supplier shall:
A. Discontinue Use - Immediately and permanently discontinue the use of
all Markings and any trade secrets of COPA and AFCE and Confidential
Information which was used in the supply of the Products or to which
Supplier has otherwise gained possession pursuant to this Agreement; and
B. Deliver Materials - Immediately upon the request of COPA promptly
deliver to COPA, or at COPA's option, destroy all Markings and any other
printed material containing either Markings, COPA trade secrets and/or
Confidential Information.
C. COPA's Costs - In the event Supplier terminates this agreement prior to
the expiration of its term due to dissatisfaction with the price or for any
reason other than a breach by COPA, Supplier agrees to pay COPA its
administrative costs and expenses incurred in obtaining other sources of
supply, including without limitation COPA's costs of any bidding process,
testing, inspection and approvals of Product.
D. Weekly Basis - In the event that this Agreement is terminated by the
mutual consent of the parties, or by the expiration of the Contract Term,
any supply by Supplier of the Products to the Distributor(s) or Members
shall be on a week to week basis under the terms of this Agreement, and any
such supply may be terminated by either party upon seven (7) days written
notice to the other party.
15. FORCE MAJEURE
Definition - "Force Majeure" shall mean and include any circumstance beyond the
reasonable control of Supplier or COPA, including without limitation, the
following: any act of nature or the public enemy, accident, explosion, fire,
storm, earthquake, flood, drought, perils of the sea, the elements, casualty,
strikes, lock-outs, labor troubles, riots, sabotage, embargo, war (whether or
not declared), governmental laws, regulations, orders, or decrees,
unavailability of raw material, or
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seizure for reasons other than the adverse financial condition of the party so
affected. Force Majeure shall not mean, however, any delay of delivery caused by
choice of shipment route by Supplier which is affected by weather, when
alternative shipment routes were available. When circumstances require Supplier
to allocate Product among Supplier's customers, Supplier agrees that it shall
not discriminate against the Distributor(s) or Members and that Supplier will
supply them on a basis no less favorable to them than a pro rata basis.
Notwithstanding anything herein to the contrary, the Distributor(s) or Members
may purchase Product from third parties during any period Supplier is unable to
satisfy Buyer's purchase orders as a result of an event of Force Majeure. In
case the performance of any terms or provisions hereof shall be delayed or
prevented because of an event of Force Majeure, the party so suffering may, at
its option, suspend performance during the period such cause continues, and no
liability shall attach against either party on account thereof. Any party
suffering an event of Force Majeure shall diligently attempt to remove such
cause or causes with reasonable dispatch. As soon as any event of Force Majeure
is remedied, the parties' respective rights, obligations and performance as set
forth in this Agreement shall be immediately reinstated.
16. BENEFIT OF MEMBERS
The rights of COPA under this Agreement, including the rights of indemnification
and warranty, are for the benefit of COPA and its Members, who shall be third
party beneficiaries under this Agreement. Unless otherwise expressly stated in
this Agreement, all obligations of Supplier are owed to COPA. Supplier agrees
that with COPA's prior written consent, a Member may enforce the rights provided
COPA under this Agreement and only in such case shall Supplier's obligations be
for the benefit of any such Member.
17. CERTIFICATE OF INDEPENDENT PRICE DETERMINATION
Supplier represents and warrants that the Price under this Agreement has been
arrived at independently, without the purpose of restricting competition, any
consultation, communication, or agreement with any other supplier or competitor
relating to (i) such Price or (ii) the methods or factors used to calculate such
Price.
18. NOTICES
Whenever, under the terms of this Agreement, notice is required, the same shall
be given in writing and shall be delivered personally, or by certified mail,
postage prepaid, addressed to the party for whom intended as follows:
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If to COPA If to Supplier:
COPA
c/o AFC Enterprises, Inc. (To the address set forth
Six Concourse Parkway on Exhibit A)
Suite 1700
Atlanta, GA 30328
Attention: Vice President, Purchasing
19. AMENDMENTS, WAIVERS, AND MODIFICATIONS
No change in, addition to, modification or waiver of the terms and provisions of
this Agreement shall be binding upon Supplier or COPA unless it is mutually
agreed upon in writing. Any such instrument shall be attached to this Agreement
and shall be incorporated herein.
20. ASSIGNMENT
Neither this Agreement nor any rights hereunder may be assigned by either party
without the prior written consent of the other party, which consent shall not be
unreasonably withheld. Any such assignment and written consent shall be attached
to this Agreement and shall be incorporated herein.
21. SEVERABILITY
In the event any one or more provisions of this Agreement or of any instrument
or other document delivered pursuant hereto or in connection herewith shall, for
any reason, be held to be invalid, illegal, or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other instrument or document, and this Agreement and such other
instruments and documents shall be interpreted and construed as if such invalid,
illegal or unenforceable provision had never been contained therein.
22. GOVERNING LAW
This agreement shall be governed by and construed and enforced in accordance
with the laws of the state of Georgia.
23. EFFECTIVE DATE
Execution of this Agreement or commencement of performance pursuant to this
Agreement by Supplier constitutes acceptance by Supplier of this Agreement and
its terms and conditions. Upon execution of this Agreement by Supplier, this
Agreement shall be delivered to COPA for its acceptance. This Agreement shall be
effective only upon the execution by COPA, which execution shall evidence the
acceptance by COPA of this Agreement. In the event of any other agreement
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affecting the supply of product by Supplier to the Distributor(s) and Members,
the terms and provisions of this Agreement shall control.
24. ARBITRATION
The parties agree that any and all disputes between them, and any claim by
either party that cannot be amicably settled, shall be determined solely and
exclusively by arbitration in accordance with the rules of the American
Arbitration Association or any successor thereof. Arbitration shall take place
at an appointed time and place in Atlanta, Georgia. Each party shall select one
(1) arbitrator from a panel of seven Arbitrators provided by the Arbitration
Association with each party alternating a strike of the Arbitrators until one is
finally selected. Judgment upon any award of the Arbitrator shall be binding and
shall be entered in a court of competent jurisdiction. The award of the
arbitrator may grant any relief which might be granted by a court of general
jurisdiction, including, without limitation, by reason of enumeration, award of
damages and/or injunctive relief, and may, in the discretion of the arbitrators,
assess, in addition, the costs of the arbitration, including the reasonable fees
of the arbitrator and reasonable attorneys' fees, against either or both
parties, in such proportions as the arbitrator shall determine.
25. ENTIRE AGREEMENT
This agreement represents the entire understanding between the parties with
respect to the subject matter hereof and supersedes all other negotiations,
agreements, representations and covenants, oral or written, other than the
documents contained in the Bid Package. However, in the event of any conflict
between the provisions of this Agreement and the provisions of any other
document in the Bid Package, the provisions of this Agreement shall control.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered by their authorized representatives as of the date first above
written.
SUPPLIER:
________________________________
By: /s/ William Lovette
-----------------------------
Title: President
--------------------------
Date: 12/13 , 2000
---------------------------
COPA:
By: /s/ Jeffrey Spotz
-----------------------------
Title: President
--------------------------
Date: May 2 , 1999
--------------------- --
COPA:
By:_____________________________
Title:__________________________
Date:_____________________, 19__
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EXHIBIT A TO
SUPPLY AGREEMENT TERMS AND CONDITIONS
Supplier Name: Tyson Foods Inc.
Supplier Address: 2210 West Oaklawn Drive Springdale, Arkansas 72762
Contract Term: April 1, 1999 to March 31, 2003
Product(s): Eight Piece and extra dark Churchs pre-marinated chicken per
current specifications.
Pricing:
BASE MARKET: Friday Georgia preliminary
8 PIECE MARINATED FOB PLANT: See attached
EXTRA DARK FOB PLANT: See attached
PACKAGING: 16 head corrugated Ice-packed or Co2
FLOOR / CEILING: $.[*] floor, $.[*] ceiling, for period 4/99-3/2000
One year only - To be negotiated every year (ends
4/00)
Cost-Plus or Cash Market Options Available - See attached for additional
information and pricing.
STANDARD BILLING WEIGHTS: N.A.
DISTRIBUTION FEES: See attached schedules
_________________
*Confidential material redacted and filed separately with the Commission.
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[TYSON LOGO]
Tyson Food Service P.O. BOX 2020 Springdale, AR 72765-2020 1-800-4-CHICKEN (424-
4253)
February 19, 1999 REVISED*
(3/1/99)
Mr. Jeff Spotz
AFC/COPA
Six Concourse Parkway
Suite # 1700
Atlanta, GA 30328
Dear Jeff:
This letter will serve as confirmation of our agreement to contract for fresh
poultry for Church's Chicken prior to your confirmation of the COPA bid and
corresponding contract.
We have agreed to utilize a "Cost Plus" format to determine the pricing for
Church's 8 Piece chicken for the Corp. owned restaurants and Church's
franchisees who choose to sign on for the duration of the agreement. That
pricing format has been laid out previously with our bid packet and an example
of the format is attached which illustrates what pricing would be for February
'99. We have also agreed to utilize a sliding scale for "margin/profit" noted in
the format example that is determined by the Georgia Friday Preliminary Dock
quote monthly average. The sliding scale will operate as follows: If the GA Dock
monthly average is $[*]/ lb. or lower, the "margin/profit" would be $.[*]for
that month. If the GA Dock monthly average is $.[*] to $.[*], then the
"margin/profit" would be $.[*] for that month. If the GA Dock monthly average is
$.[*] to $.[*]/lb., then the "margin/profit" would be $.[*] for that month. If
the GA Dock monthly average is $.[*] to $.[*]/lb. then the "margin/profit" would
be $.[*] for that month. If the GA Dock monthly average is $.[*] to $.[*]/lb.,
then the "margin/profit" would be $.[*] for that month. If the GA Dock monthly
average is $.[*] to $.[*]/lb., then the "profit/margin" would be $.[*] for that
month. If the GA Dock monthly average is $.[*] to $.[*]/lb., then the
"profit/margin" would be $.[*] for that month. If the GA Dock monthly average is
$.[*]/ lb. or higher, then the "profit/margin" would be $.[*] for that month.
INVESTING OUR EXPERIENCE IN YOUR SUCCESS
___________________
* Confidential material redacted and filed separately with the Commission.
<PAGE>
INVESTING OUR EXPERIENCE IN YOUR SUCCESS
Church's Agreement Letter
February 19, 1999
Page 2
We have also agreed to utilize a pricing format for Dark Meat that will be based
on the monthly FOB price for 8 Piece as determined by the format mentioned
above. The Dark Meat pricing scale works as follows:
FOB Price on 8 Piece FOB Price on Dark Meat
-------------------- ----------------------
$.[*]/lb. and lower $.[*]/lb.
$.[*] to $.[*]/lb. $.[*]/lb.
$.[*] to $.[*]/lb. $.[*]/lb.
$.[*]/lb. and higher $.[*]/lb.
* If the GA Friday Preliminary is $.[*] or lower, the FOB price on Dark Meat
will be $.[*]/lb. This Dark Meat pricing option would be reviewed annually with
an option to change the prices listed higher or lower no more than $.[*]/lb. the
2nd year of the agreement and no more than $.[*]/lb. the remaining 3 years of
the agreement. The basis for making these annual changes would be to use the
annual average MW UrnerBarry quote for Leg Quarters and to utilize the scale as
follows:
MW UB Annual Average Increase/Decrease Price
-------------------- -----------------------
$.[*] to $.[*]/lb. - $.[*]/lb. (3rd - 5th year)
$.[*] to $.[*]/lb. - $.[*]/lb. (Max. 2nd year)
$.[*] to $.[*]/lb. [*]
$.[*] to $.[*]/lb. + $.[*]/lb. (Max. 2nd year)
$.[*]/lb. or higher + $.[*]/lb. (3rd - 5th year)
We have also agreed to offer a "Floor-Ceiling" pricing arrangement for any
franchisees that may choose not to participate in the "Cost Plus" pricing
arrangement and that format is as follows based on the Weekly GA Friday
Preliminary: $.[*]/lb. "Floor" and $.[*]/lb. "Ceiling". Using the $.[*]/lb.
overage for 8 Piece, this would mean FOB pricing for 8 Piece of $.[*]/lb. to
$.[*]/lb. This pricing would change weekly within the parameters of the " Floor-
Ceiling". We have also agreed to set a scale in place for Dark Meat pricing
based on the FOB 8 Piece price for those franchisees using the "Floor-Ceiling"
arrangement and that is as follows:
FOB Price on 8 Piece FOB Dark Meat Pricing
-------------------- ---------------------
$.[*]/lb. and lower $.[*]/lb.
$.[*] to $.[*]/lb. $.[*]/lb.
$.[*] to $.[*]/lb. $.[*]/lb.
$.[*]/lb. and higher $.[*]/lb.
___________________
* Confidential material redacted and filed separately with the Commission.
<PAGE>
Church's Agreement Letter
February 19, 1999
Page 3
We have agreed to drop the original upcharges listed in our bid package related
to delivery costs for a 1 year period to allow time for further discussion
within the Church's/AFC, company related to "key drop" deliveries. Unless other
arrangements are made, these higher delivery costs listed in the bid package for
1999 will go into effect on April 3, 2000.
We have agreed that Tyson Foods will retain all current Church's fresh poultry
business and will also take on the following NEW markets and restaurants as
noted below beginning Monday, April 5, 1999 unless other arrangements have been
made. Those markets and restaurants are as follows:
A) Houston, TX (49 restaurants) - Stores #1059, #1065, #1089, #1092, #1102,
----------------------------
#1104, #1105, #1122, #1143, #1154, #1293, #1312, #1412, #1452, #1463,
#1465, #1468, #1471, #1476, #1477, #1478, #1479, #1481, #1490, #1491,
#1519, #1520, #1528, #1529, #1548, #1553, #1555, #1558, #1607, #3772,
#3817, #3903, #3952, #4118, #4143, #4175, #4188, #4312, #4321, #4490,
#4498, #4558, #4559, and #4597.
B) *Dallas/Ft. Worth, TX (24 restaurants) - Stores #1687, #1689, #53, #68,
--------------------------------------
#460, #461, #492, #587, #1385, #1407, #581, #1444, #1564, #1630, #3936,
#556, #4656, #1579, #1338, #1439, #3829, #4532, #1690, and #321.
C) *South Texas (9 restaurants) - #3105, #3818, #3876, #3978, #1343, #481,
----------------------------
#1362, #1246, and #795.
D) *Los Angeles and San Diego, CA (51 restaurants) - #114, #128, #147, #171,
-----------------------------------------------
#466, #621, #622, #623, #663, #738, #741, #779, #781, #786, #787, #843,
#850, #853, #902, #945, #949, #957, #958, #959, #968, #1000, #1004, #1021,
#1069, #1073, #1191, #1618, #1625, #1944, #3104, #3732, #3874: #4477, #780,
#1159, #1162, #1164, #1212, #1255, #1260, #1321, #1858, #3250, #691, #698,
and #739.
We have also agreed that Tyson Foods has a real interest in continued expansion
of this business and as such have noted our clear interest in the following
markets that may come open for bid next year (approximately April 1, 2000).
Those areas are as follows:
1) 23 Church's restaurants in New Orleans and surrounding area.
2) 27 Church's restaurants in the state of Mississippi.
3) 32 Church's restaurants in the Mobile, AL/Pensacola, FL area.
4) 15 Church's restaurants in Kansas City and surrounding area.
5) 18 Church's restaurants in Memphis and surrounding area.
6) 7 Church's restaurants in Little Rock and surrounding area.
7) 30 Church's/AFDC restaurants in Chicago and surrounding area.
<PAGE>
Church's Agreement Letter
February 19, 1999
Page 4
8) 21 Church's/AFDC restaurants in Detroit and surrounding area.
9) 14 Church's/AFDC restaurants in Indianapolis and surrounding area.
10) 19 Church's/AFDC restaurants in the state of Ohio.
11) 17 Church's restaurants in Northern California.
We also agreed to step in if necessary and production is available and help fill
any gaps in production going forward if another processor decides to step out or
can't handle the committed volume. This would impact such markets as Oklahoma
City, Tulsa, Phoenix, Las Vegas, Dallas, San Antonio, or Austin.
We agreed that the length of this contract would be 5 years on the "Cost Plus"
arrangement based on the facts already laid out and that Tyson Foods would be
targeted to pick up at least as many new restaurants in year two of the contract
as we did for year one. We understand that this is difficult due to the fact
that much of the business is under contract until next year.
We also agreed that the contract length of any "Floor-Ceiling" arrangement would
be for 3 years with the option to review and change annually the actual "Floor-
Ceiling" numbers.
Finally, we had agreed to produce and distribute Popeye's Chicken to
approximately 10 to 12 Popeye's units in the DFW area as part of this agreement
and those store numbers are as follows: #82, #586, #1213, #1300, #1409, #1515,
#3058, #3584, #116, #223, and #1449.
I presume that you are planning to respond to us via a written contract and I
wanted to be clear on all our points of agreement. Please call if you have any
questions concerning this information and thanks again for your continuing
support and patronage
<PAGE>
Sincerely,
TYSON FOODS, INC.
/s/ Steve Whitfield
Steve Whitfield
National Sales Manager
Refrigerated Poultry Group
Food Service Division
Cc Marc Killebrew
Devin Cole
Clark Irwin
<PAGE>
[TYSON LOGO]
Investing Our Experience in Your Success
TO: Jeff Spotz/AFC-SMS (FAX)
Dan Cheatham/AFC-SMS (FAX)
FROM: Steve Whitfield/Tyson Foods
DATE: June 5, 2000
SUBJECT: Confirmation of NEW Business and Pricing for Church's and Popeye's
As discussed on Friday (5/26) and Thursday (6/1), you will find listed here
confirmation of the NEW business that we have agreed to service with either
Direct Delivery or through your approved Distributors. Those designations are
listed below:
A) 47 Church's in New York and New Jersey to be distributed by Menella's in New
York. This business represents approximately 3.25 loads per week
(approximately 117,500 pounds) of Church's 8 Piece and Dark Meat. 19
Popeye's in Philadelphia, PA to also be distributed by Menella's. This
represents approximately an additional 1.6 loads per week (approximately
57,000 pounds) of Popeye's 8 Piece. Our current plan is to ship this product
from Berlin, MD. *(Startup on 7/10/00)
B) 30 Church's in Chicago, IL and area to be distributed by Cougle's. This
business represents approximately 2 loads per week (75,000 pounds) of
Church's 8 Piece and Dark Meat. We also agreed to 50 Popeye's stores which
represent approximately 4.25 loads per week (150,000 pounds) of 8 Piece and
this business will be distributed by Nealey's. Our current plan is to ship
this product from Berry Street/Springdale, AR. *(Startup by 7/24/00)
C) 41 Church's in Detroit and area to be distributed by Week's. This Business
represents approximately 3 loads per week (108,000 pounds) of Church's 8
Piece and Dark Meat. We also agreed on 8 Popeye's in Detroit that will also
be distributed by Week's which represents approximately .75 load per week
(25,000 pounds) of Popeye's 8 Piece. Our current plan is to ship this
product from Corydon, IN. *(Startup by 7/ 24/00)
D) 4 Church's in Richmond, VA to be serviced by Tyson Direct Routes out of a
planned Distribution center in Virginia with production from our Berlin, MD
plant. Delivery charge will be $.[*]/lb. *(Startup on 7/10/00)
E) 4 Church's in and 1 Popeye's in Las Vegas, NV to be serviced by Tyson Direct
Routes from our Distribution center in Phoenix, AZ. *(Startup on 7/10/00)
Tyson Foods, Inc. Food Service Group P.O. Box 2020 Springdale, AR 72765-
2020 800.424.4253 Fax: 501.290.4600 www.tyson.com
___________________
* Confidential material redacted and filed separately with the Commission.
<PAGE>
Agreement Clarification Memo
June 5, 2000
Page 2
F) 22 Church's stores in Kansas City area (including Wichita, Hutchinson,
Topeka, and Junction City, KS) to be serviced by Tyson Direct Routes (except
for the 5 stores mentioned above which we will contract with a local
distributor to deliver for us) out of the Monett, MO plant. This business
represents approximately 1.5 loads per week (55,000 pounds). We will also be
approaching the 13 Popeye's stores in this area in hopes of landing that
business. This business represents approximately 1 load per week (39,000
pounds) out of the Monett, MO plant which would be serviced by the Tyson
Direct Route system. *(Startup on 7/10/00)
G) 44 Church's stores in Dallas/Ft. Worth, TX area to be serviced by Tyson
Direct Routes out of Carthage, TX plant with support from Dardanelle, AR and
Broken Bow, OK. This business represents 3 loads per week (110,000 pounds).
We will also be approaching 18 Popeye's franchise store in this area in
hopes of landing that business which would be serviced by Tyson Direct
Routes out of Carthage, TX. This business represents 1.5 loads per week
(54,000 pounds). *(Startup on 6/26/00)
H) 22 Church's stores in San Antonio, 7 Church's in Austin, and 3 Church's
stores in Laredo, TX to be serviced by Tyson Direct Routes out of the
Seguin, TX plant with support from Dardanelle, AR and Broken, Bow, OK. This
business represents 2.25 loads per week (80,000 pounds). We will also be
approaching 2 Popeye's in Victoria, TX to be serviced by Tyson Direct Routes
out of Seguin. *(Startup on 6/26/00)
I) 80 Popeye's in Baltimore, MD and Washington DC area to be serviced by Tyson
Direct Routes out of a Distribution center in Virginia with product from
Gadsden, AL, Harrisonburg, VA, and Corydon, IN. This business represents
7.75 loads per week (280,000 pounds). *(Startup on 7/10/00)
J) 24 Popeye's in Houston, TX will be approached with new pricing and would be
serviced by Tyson Direct Routes out of Carthage, TX. This business
represents 2 loads per week (72,000 pounds). *(Startup on 6/26/00)
K) 22 Popeye's in New Orleans area will be approached with new pricing and
would be serviced by Tyson Direct Routes out of Forest, MS. This business
represents 1.85 loads per week (66,000 pounds). *(Startup on 7/10/00)
We have agreed that we can begin approaching all franchisees noted above on
6/19/00 to assure the smoothest startup possible. We have also discussed the 35
Popeye's restaurants that are currently Corp. stores in the Houston area that
are under negotiations to be purchased by a Popeye's Franchisee in the coming
months and will be prepared to step in and service these stores at the request
of the Franchisee with Tyson Direct Routes.
<PAGE>
Agreement Clarification Memo
June 5, 2000
Page 3
Church's Pricing
----------------
A) Cost Plus Pricing - The primary change to this agreement is the "profit" on
the "Cost Plus" based on the various levels of the GA Friday Dock quote.
They are as follows:
1) If Dock average for month is $.[*] or lower, profit will be $.[*].
2) If Dock average for month is $.[*] to $.[*], profit will be $.[*].
3) If Dock average for month is $.[*] to $.[*], profit will be $.[*].
4) If Dock average for month is $.[*] to $.[*], profit will be $.[*].
5) If Dock average for month is $.[*] to $.[*], profit will be $.[*].
6) If Dock average for month is $.[*] to $.[*], profit will be $.[*].
7) If Dock average for month is $.[*] to $.[*], profit will be $.[*].
8) If Dock average for month is $.[*] and higher, profit will be $.[*].
B) Market (Cash) Pricing - We have agreed to an overage on the GA Friday
Preliminary Dock weekly quote of $.[*]/lb FOB. We have also agreed to a
"Floor-Ceiling" of $.[*] to $.[*]/lb. on the GA Weekly Quote. Dark Meat will
be priced based on the GA weekly quote as follows:
1) If Dock is $.[*] /lb. or lower, Dark Meat will be $.[*]/lb. FOB.
2) If Dock is $.[*] to $.[*]/lb., Dark Meat will be $.[*]/lb. FOB.
3) If Dock is $.[*] to $.[*]/lb., Dark Meat will be $.[*]/lb. FOB
4) If Dock is $.[*] and higher, Dark Meat will be $.[*]/lb. FOB.
Popeye's Pricing
----------------
A) Market (Cash) Pricing - We have agreed to an overage of $.[*]/lb. on the
Friday GA Preliminary Dock weekly quote (except for Chicago & Detroit which
will be $.[*]/lb.) We have also agreed to a "Floor-Ceiling" of $.[*] to
$.[*]/lb. on the GA Weekly quote. Dark Meat will be priced at $.[*] back of
the 8 Piece price. The $.[*] overage is based on 8 Piece with Leaf Fat
removed. If product is sold with Leaf Fat left on the overage will be
$.[*]/lb. less.
1) Split Breasts - Priced at $.[*]/lb. over 8 Piece price
2) Whole Wings - UB Wed. Wing quote + $.[*]/lb (Floor - $.[*], Ceiling -
$.[*])
We have agreed that the NEW pricing for all existing Church's and Popeye's
serviced by Tyson Foods will start up on 6/12/00.
___________________
* Confidential material redacted and filed separately with the Commission.
<PAGE>
Pricing Confirmation Memo
June 5, 2000
Page 4
Plant Startups and Approvals
----------------------------
We are suggesting the following schedule for your consideration to get all
necessary plant approvals in place for the rollout schedule listed above. That
schedule is as follows:
A) Week of June 5-9
1) Dardanelle, AR - Church's Dark Meat and Popeye's 8 Piece
2) Pine Bluff, AR - Popeye's 8 Piece
B) Week of June 12-16
1) Berlin, MD - Church's 8 Piece and Dark Meat
2) Corydon, IN - Church's 8 Piece and Dark Meat and Popeye's 8 Piece
C) Week of June 19-23
1) Gadsden, AL - Church's Dark Meat and Popeye's 8 Piece
D) Week of July 10-14
1) Berry Street-Springdale, AR - Church's Dark Meat and Popeye's 8 Piece.
We understand that this schedule is only a suggestion and that coordination with
Chuck Moller, Don Adams, and Ginger Guidry is necessary to make this happen! We
--
will need to hit pretty close to the noted dates in order to assure our ability
-------------------------------------------------------------------------------
to meet the noted startup dates listed above.
---------------------------------------------
It is critical that we finalize our understanding of "Keydrop" deliveries as ALL
of our NEW Routes are being constructed with the assumption that this will be
available to utilize as laid out in our agreement last year.
Please feel free to call if you have any questions concerning this information
and thanks again for your continued support and patronage!
Cc Devin Cole
Marc Killebrew
<PAGE>
Church's June Cost Plus Pricing
-------------------------------
(7/2/00 - 7/29/00)
Base: 8081-151 8-Pc : [*] (8121-151)
8082-151 Dark : [*] (8100-151)
Market Price List Produced Price P/Lb.
------ ---------- -------- -----------
Houston/Dallas S6 8081-151 [*]
[*] 8082-151 [*]
Corpus Christi W2 8081-151 [*]
[*] 8082-151 [*]
San Antonio/Austin S7 8081-151 [*]
[*] 8082-151 [*]
South Texas S8 8081-151 [*]
[*] 8082-151 [*]
Los Angl/San Diego SCAC 8121-151 [*]
[*] 8100-151 [*]
E.S.Calif/Yuma ECAC 8121-151 [*]
[*] 8100-151 [*]
Louisiana SLF 8081-151 [*]
[*] 8082-151 [*]
Church's of El Paso to Tava 8081-151 [*]
[*] 8082-151 [*]
PFD/Church's PFD 8121-151 [*]
[*] 8100-151 [*]
Kansas City To Come
[*]
St.Louis To Come
[*]
___________________
* Confidential material redacted and filed separately with the Commission.
<PAGE>
[TYSON LOGO] Investing Our Experience in Your Success(TM)
TO: Dan Cheatham/AFC Supply Mgmt. Services, Inc. (FAX)
Jeff Spotz/AFC Supply Mgmt. Services, Inc. (FAX)
FROM: Steve Whitfield/Tyson Foods
DATE: June 23, 2000
SUBJECT: Cost Plus Pricing for Church's Fresh 8 Piece and Dark Meat for July '00
Based on our NEW agreement, the pricing for those Church's restaurants that have
agreed to buy on the "Cost Plus" format is as follows: $.[*]/lb. FOB for 8
Piece and $.[*]/lb. FOB for Dark Meat. The worksheet is attached that lays out
how the 8 Piece pricing was figured. The Dark Meat price was arrived at based on
the 8 Piece FOB pricing formula we agreed to.
The Corn quote was set by Jeff on 6/6/00 and the Soy quote was set by Jeff using
the best market quotes for Tuesday, 6/20/00. The pricing that the restaurants
will see will be shown on their delivery tickets as a total delivered price
based on this FOB price and the agreed delivery charges into each market unless
we hear otherwise from you. This NEW pricing will be effective beginning with
all deliveries on or after Monday (7/3/00) and runs through Saturday (7/29/00).
Please verify that the numbers on the pricing agree with your understanding of
the contract and feel free to call if you have any questions. Thanks again for
your support and patronage!
Cc Diane Grant/AFC-SMS (FAX) 770-353-3105
Devin Cole
Janie Tucker
Angie White
Tony Swindle
___________________
* Confidential material redacted and filed separately with the Commission.
<PAGE>
COST SUMMARY
TYSON FOODS
CORN/SOY
July FREIGHT BASIS TOTAL
CORN $[*] $.[*] $.[*] $[*]
SOY $[*] $ [*] $ [*] $[*]
% RATION COST/UNIT COST/LB FEED
CORN [*]% $ [*] $.[*]
SOY [*]% $ [*] $.[*]
MEAL [*]% $.[*] $.[*]
-------- ----------
100.00% $.[*]
MILLING COST $.[*]
DELIVERY COST $.[*]
----------
SUBTOTAL $.[*]
FEED SHRINK 1% $.[*]
FEED CONVERSION [*]
FEED EXPENSES $.[*]
___________________
* Confidential material redacted and filed separately with the Commission.
<PAGE>
2000 PRICING CHURCH'S 8 PCE INJECTED (8081-151)
Live Production Expenses: 2000
---------
Chick Costs [*]
Food Costs [*]
Medication and Supplies [*]
Grower Pay [*]
Litter [*]
Fuel [*]
Service [*]
Other [*]
Condemned [*]
Shrink [*]
DOA [*]
Catch and Haul [*]
Complex Overhead [*]
Other Period Cost [*]
---------
Total Live Costs to Plant [*]
Eviscerated Yield [*]
Yielded Meat Costs [*]
RTC Plant Costs:
Direct Labor [*]
Indirect Labor [*]
Payroll Overhead [*]
Variable Overhead [*]
Fixed Overhead [*]
Offal Credit -[*]
Giblet Credit -[*]
Leaf Fat -[*]
Cooler Meat Variance [*]
Total RTC Plant Costs [*]
---------
Total Whole Bird Costs [*]
Yield less Gibs & Shrink [*]%
Yielded Meat Costs [*]
Church's 8pc Process Cost
Direct Labor [*]
Indirect Labor [*]
Payroll Overhead [*]
Variable Overhead [*]
Fixed Overhead [*]
Packaging Materials [*]
Marination Charges [*]
---------
Total Church's Costs [*]
Total Operating Costs [*]
Yielded Meat without Marination [*]%
Yielded Total Operating Costs [*]
Corporate Overhead Costs [*]
Margin/Profit [*]
---------
Total FOB Cost [*]
=========
___________________
* Confidential material redacted and filed separately with the Commission.