Paper Brokerage Agreement - Pulp & Paper of America LLC and Crown Paper Co.
PAPER BROKERAGE AGREEMENT
This Agreement dated on March 24, 1999, by and between Pulp & Paper of
America LLC, a New York limited liability company ("PPA"), having its principal
place of business at 135 Engineers Road, Hauppauge, New York, and Crown Paper
Co., a Virginia corporation ("Crown"), having its principal place of business at
300 Lakeside Drive, Oakland, California.
R E C I T A L S
The parties hereto are parties to that certain Asset Purchase Agreement,
dated even date herewith, by and among Crown, Crown Vantage New Hampshire
Electric, Inc. and Berlin Mills Railway, Inc., as Seller, and American Tissue
Holdings Inc. and PPA, as Buyer (the "Asset Purchase Agreement"), pursuant to
which PPA will purchase from Seller and subsequently will own and operate a pulp
and paper mill located in Berlin and Gorham, New Hampshire ("B/G") and require
assistance in the sales and marketing of the B/G Sustaining Grades and B/G
Target Grades produced at such mill.
Crown has an experienced sales and marketing staff and desires to act as
broker and sales representative for such B/G Sustaining Grades and B/G Target
Grades.
Now, therefore, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, PPA and Crown mutually agree as follows:
1. Definitions. The following terms, as used herein, have the following
meanings:
"Accountant" has the meaning set forth in Section 4.4 below.
"B/G" means the mill owned by PPA and located in Berlin and Gorham, New
Hampshire.
"B/G Sustaining Grades" shall mean Sustaining Grades manufactured by PPA at
B/G.
"B/G Target Grades" shall mean Target Grades manufactured by PPA at B/G.
"Commissionable Sales" means Gross Sales billed to third parties less
freight charges, returns, allowances (including terms allowances) and
adjustments.
"Confidential Information" has the meaning set forth in Section 11 hereof.
"Crown" means Crown Paper Co.
"Gross Sales" means the gross amount charged to third parties prior to any
reductions.
<PAGE>
"PPA" means Pulp & Paper of America LLC, doing business in Berlin and
Gorham, New Hampshire.
"Products" means B/G Sustaining Grades and B/G Target Grades, collectively.
"Net Sales" means the Gross Sales prices actually paid by third parties for
all Products sold and shipped less freight charges, returns, allowances,
adjustments and commissions.
"Services" means the services to be rendered by Crown to PPA, as set forth
in Section 3.
"Sustaining Grades" means the total output of paper manufactured at B/G
which is not either (i) produced on the number 9 paper machine, (ii) the subject
of the Strategic Alliance Agreement which has been entered into by the parties
hereto of even date, (iii) Target Grades as defined herein, or (iv) job lot or
broke. Sustaining Grades includes, but is not limited to, the types of papers
listed on Schedule B annexed hereto and made a part hereof.
"Target Grades" means the types of paper listed on Schedule A annexed
hereto and made a part hereof.
2. Engagement.
2.1. Except as provided in Section 5 below, during the term of this
Agreement, PPA engages Crown as its exclusive sales representative with respect
to the sales of all B/G Target Grades and B/G Sustaining Grades on the terms
stated in this Agreement and Crown accepts such engagement.
2.2. During the term of this Agreement, Crown shall provide the Services
set forth in Section 3 below. PPA shall be under no obligation to accept or
implement any of the advice provided with the Services, and all decisions to be
made with respect thereto shall be made by PPA in its sole and absolute
discretion.
3. Services to be Rendered. During the term of this Agreement, Crown shall
use its best efforts to perform the following marketing and sales services to
PPA ("Services") at Crown's sole cost and expense (including, without
limitation, sales, marketing and freight expenses):
(a) sell annually an aggregate of no less than 130,000 tons of Products for
each twelve (12) month period during the term of this Agreement, with the
foregoing sales comprising no less than 30,000 tons of B/G Target Grades at the
applicable market prices in effect from day to day;
(b) maintain and upgrade the sale of the historic mix of B/G Target Grades;
- 2 -
<PAGE>
(c) provide marketing services designed to maximize sales of high margin
B/G Target Grades produced in accordance with marketing and operating plans
adopted by PPA;
(d) making all sales of Products on such terms including price as are
required by PPA;
(e) maintaining sufficient communications with PPA to assist PPA in
coordinating manufacturing and sales efforts of Products;
(f) quarterly review and assessment of customer lists and B/G Target Grades
and B/G Sustaining Grades production allocations, and discussions thereof with
PPA;
(g) advise PPA of periodic B/G Target Grades and B/G Sustaining Grades
production decisions regarding tonnage, distribution by grade, customer base,
freight costs, machine-hour contribution, and other strategic considerations;
(h) advise PPA with respect to customer rejections or quality problems to
ensure strong relations with customers and that problems are resolved
efficiently and with the least possible cost to PPA;
(i) coordinate customer shipments and assist PPA and customers with pick up
appointments, freight rates, and delivery times required consistent with
customer service responsibilities;
(j) advise PPA of market developments, competitive activity, and customer
reports, including customer observations and feedback related to Products
quality and service;
(k) service all customers consistent with normal industry practices,
including, without limitation, market development, complaint investigation and
resolution and quality issues.
(l) prepare a market survey relating to all Products, including information
such as key personnel, Products end-use, and current supplier base;
(m) prepare a marketing plan listing prospective accounts;
(n) develop and implement a communication strategy for announcing new
Products grade focus and marketing arrangements;
(o) promote and market Products to prospective customers;
(p) assist PPA in developing a planned phase-in of the tradenames,
trademarks, logos and trade styles of PPA in accordance with Section 8.2 below;
- 3 -
<PAGE>
(q) establish and monitor market trials of Products, including provision of
feedback to PPA and recommendations to PPA for further products development by
PPA, if advisable;
(r) adjust sales and marketing efforts as reasonably requested by PPA to
align with future B/G operating capacity fluctuations effected by PPA;
(s) forward immediately to PPA all orders obtained for B/G Target Grades
and B/G Sustaining Grades;
(t) submit on a timely basis invoices as designated by PPA, which will
require payment to PPA, to purchasers of B/G Target Grades and B/G Sustaining
Grades; and
(u) maintain complete and accurate books and records concerning all orders,
order tracking, delivery and sales of B/G Target Grades and B/G Sustaining
Grades.
4. Commissions.
4.1. Subject to the limitations set forth in Section 6 below and except as
set forth in Section 5 below, Crown shall be paid a commission of four and
one-half percent (4.5%) of the Commissionable Sales price of Products sold
during the term of this Agreement.
4.2. PPA will use commercially reasonable efforts to within ten (10) days,
but in any event will deliver to Crown not later than fifteen (15) days, after
the end of each month during the term of this Agreement, an accounting of all
Products sold, and invoices paid, during the preceding month which are
Commissionable Sales, and will pay such commission to Crown.
4.3. PPA shall bear the risk of non-payment for all Products sold pursuant
to this Agreement.
4.4. At any time during the term of this Agreement, PPA shall permit Crown
to audit, by a mutually acceptable independent public accountant ("Accountant"),
PPA's books and records insofar as they relate to the Products to ensure the
correctness and accuracy of the commissions paid to Crown under this Agreement.
PPA shall maintain complete records of its sales of the Products hereunder for
at least six (6) months after the end of the Term. Upon reasonable advance
notice, the Accountant may perform on-site audits during normal business hours
so as to minimize disruption to PPA. If as a result of the audit, the Accountant
determines that the commissions payable by PPA to Crown under this Agreement
must be adjusted in order to conform to the provisions of this Agreement, then
the Accountant shall disclose the adjustment amount required. Otherwise, the
Accountant will report that the Agreement is being fairly administered. All
other information about specific accounts will be held in confidence by the
Accountant.
- 4 -
<PAGE>
5. Limitations on Exclusivity of Arrangement.
5.1. During the first twenty-four (24) months of the term of this
Agreement, Crown shall have the exclusive benefit of, and be entitled to
commissions on, all sales made of all Products as set forth in Section 4 above.
For clarification, if PPA places any sales of Products through another broker or
uses its own employees to make sales of Products during the first twenty-four
(24) months of the term of this Agreement, it shall be entitled to do so, but
shall pay to Crown the commission as set forth in Section 4.1 above.
5.2. From time-to-time during the twenty-fifth (25th) through the
thirty-sixth (36th) month of the term hereof, provided Crown has received no
less than six (6) months advance written notice, PPA may reduce the tonnage sold
through Crown and thereby reduce its commission obligations to Crown on (i) up
to 20,000 tons of B/G Sustaining Grades, which PPA may sell directly or through
a third party and for which Crown shall have no rights to payment under Section
4 above nor obligations to sell or service; plus (ii) an unlimited amount of
tonnage of grades of paper which (x) have not been manufactured historically at
B/G and (y) which are either (I) consumed by PPA in its own converting
operations or (II) are sold by PPA, directly or through a third party and for
which Crown shall have no rights to payment under Section 4 above nor
obligations to sell or service.
6. Obligations of PPA.
6.1. PPA agrees to manufacture Products; to use commercially reasonable
efforts to have available as required sufficient qualities (consistent with
historic B/G production) and quantities of Products to support Crown's sales
efforts; and to arrange for delivery of Products as provided in each sales
order.
6.2. PPA will exercise commercially reasonable efforts to support Crown's
sales efforts. PPA shall, together with Crown, within established profitability
guidelines, set and maintain a pricing structure consistent with the market for
the Products.
6.3. To the extent Crown incurs any costs in warehousing either B/G Target
Grades or B/G Sustaining Grades, PPA shall pay its allocable portion of such
warehousing expenses to be determined on a tonnage basis. PPA will use
commercially reasonable efforts to pay such warehousing expenses within ten (10)
days of the date of invoice, but shall in any event pay such warehousing
expenses within fifteen (15) days of the date of invoice.
6.4. PPA will agree to an efficient methodology for handling customer
claims and returns of Products. Such methodology will provide Crown's
salespersons with certain parameters of discretion and will require PPA to
respond expeditiously to requests from Crown which fall outside of Crown's
permitted discretion.
6.5. PPA will provide Crown within thirty (30) days following the end of
each calendar quarter with a statement reconciling production of B/G Target
Grades and B/G Sustaining Grades with Gross Sales, Commissionable Sales, and Net
Sales during the quarter just ended.
- 5 -
<PAGE>
7. Good Faith Performance and Non-Competition Covenant. Subject to the
terms set forth in Section 7.2 of the Asset Purchase Agreement, PPA and Crown
each acknowledge that in addition to being involved in the business of selling
and marketing paper, Crown manufactures and may continue to manufacture during
the term of this Agreement and thereafter, some, but not all, of the Target
Grades and Sustaining Grades at its own mills. In order to limit the potential
for conflicts between PPA and Crown during the term of this Agreement, Crown
agrees to exercise good faith in the performance of its obligations herewith.
Specifically, Crown agrees that during the term of this Agreement, it shall
conduct its own manufacturing operations and its sales efforts for PPA
consistent with the following market practices:
(a) Crown shall use best efforts to maintain and upgrade the sale of the
historic mix of Target Grades at market prices produced at B/G and provide the
Services set forth in Section 3 above;
(b) with respect to those Target Grades which Crown has not historically
produced at its mills (other than B/G), as set forth on Schedule C annexed
hereto and made a part hereof, Crown shall neither commence the manufacture of
such products nor attempt to discourage a purchaser of B/G Target Grades from
purchasing such products from PPA;
(c) when and if Crown is presented with an order for a specific Target
Grade or Sustaining Grade which is produced by both Crown and PPA, Crown shall
not unfairly discriminate against PPA in the placement of business between B/G
and Crown's paper mills. In this respect, Crown will use commercially reasonable
efforts to allocate orders, in the aggregate, which would be produced at B/G and
other Crown mills in reasonable proportion to past practices, allowing for
variations in grade, basis weight, color, quality, demands and customer demands,
and freight logic, but without regard for selling price. From time-to-time Crown
will review with PPA how orders for overlapping grades were allocated between
B/G and other Crown mills.
8. Tradenames; Marks; Phasing of Transition.
8.1. For the term of this Agreement, PPA and Crown grant to each other
limited, nonexclusive, royalty-free licenses to their respective trademarks,
tradenames, logos and trade styles used in the sale and marketing of B/G Target
Grades and/or B/G Sustaining Grades, which license shall be used only in
furtherance of the goals and objectives of this Agreement; provided, however,
that neither PPA nor Crown may use any or all of the trademarks, tradenames,
logos and trade styles of the other in connection with the sale and marketing of
any products other than B/G Target Grades and/or B/G Sustaining Grades.
8.2. The parties hereto agree that initially B/G Target Grades and B/G
Sustaining Grades shall be manufactured, sold, invoiced, labeled and identified
as Crown products to assure or enhance market acceptance. However, the parties
agree that during the term of this Agreement, the parties shall implement a
planned phase-in of the tradenames, trademarks, logos and trade styles of PPA to
facilitate PPA's transition and entrance into the
- 6 -
<PAGE>
marketplace for Target Grade and Sustaining Grade papers. Specifically, Crown
shall commence the phase in of PPA's trademarks, tradenames, logos and trade
styles no later than the thirteenth (13th) month of this Agreement, and such
implementation shall be completed no later than the twenty-fifth (25th) month of
this Agreement.
9. Independent Parties. PPA and Crown are independent contracting parties.
Nothing in this Agreement will be construed to make either PPA or Crown an
employee, franchisee, joint venturer, partner or legal representative of the
other. Except as otherwise provided in this Agreement, Crown shall not represent
itself to have any authority to act on PPA's behalf.
10. Indemnification.
10.1. Crown Indemnification. Crown shall indemnify, defend, and hold PPA,
its employees and agents harmless from and against any and all liabilities,
damages, injuries, suits, judgments, claims, causes of action, and expenses
(including reasonable attorneys' fees, court costs and out-of-pocket expenses),
suffered or incurred by PPA as a result of (i) a breach of any representation or
warranty made by Crown hereunder, or (ii) any act or deed, whether by way of
tort or contract, committed or omitted by Crown, its employees or agents in the
performance of this Agreement, except for acts or deeds committed or omitted by
Crown in reliance on representations and warranties made to Crown by PPA
pursuant to this Agreement.
10.2. PPA Indemnification. PPA shall indemnify, defend, and hold Crown, its
employees and agents harmless from and against any and all liabilities, damages,
injuries, claims, suits, judgments, claims, causes of action, and expenses
(including reasonable attorneys' fees, court costs and out-of-pocket expenses),
suffered or incurred by Crown as a result of (i) a breach of any representation
or warranty made by PPA hereunder, or (ii) any act or deed, whether by way of
tort or contract, committed or omitted by PPA, its employees or agents in the
performance of this Agreement, except for acts or deeds committed or omitted by
PPA in reliance on representations and warranties made to PPA by Crown pursuant
to this Agreement.
10.3. NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY OR THIRD
PARTIES FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES FOR THE BREACH OF ANY WARRANTY OR COVENANT HEREUNDER.
11. Confidentiality.
11.1. Each party shall regard and treat as confidential and proprietary all
of the information communicated to it by the other party in connection with this
Agreement (which information shall at all times remain the property of the
disclosing party), which information is referred to herein as "Confidential
Information." Confidential Information includes such information disclosed by a
party orally or visually, directly or indirectly. Confidential Information of a
party is also deemed to include pricing information, customer
- 7 -
<PAGE>
information, identification of problems to be solved, areas for process, product
and equipment improvements, and Confidential Information of third parties, which
are observed, identified or disclosed under or as a result of this Agreement.
Nothing contained in this Agreement shall be interpreted to impose upon either
party hereto the obligation to share its Confidential Information with the other
party hereto.
11.2. During the term of this Agreement and following termination thereof
for a two year period thereafter, neither party shall, without the other's prior
written consent, at any time disclose any portion of such Confidential
Information to third parties.
11.3. Each party shall disseminate Confidential Information of the other
party to its employees, agents and subcontractors only on a "need-to-know"
basis, and shall use the same degree of care in protecting such Confidential
Information of the other party as it does for its own information of like kind.
Each party shall cause each of its employees, agents and subcontractors who has
access to such Confidential Information to comply with the terms and provisions
of this Section in the same manner as it is bound hereby, with it remaining
responsible for the actions and disclosures of any such employees, agents and
subcontractors.
11.4. Notwithstanding the foregoing, a party's obligations pursuant to this
Section 11 shall not apply to (i) information that, at the time of disclosure,
is, or after disclosure becomes, part of the public domain other than as a
consequence of a breach of this Agreement, (ii) information that was known or
otherwise available to the receiving party prior to the disclosure by the
disclosing party, (iii) information disclosed by a third party to the receiving
party after the disclosure by the disclosing party, if such third party's
disclosure does not violate any obligation of the third party to the disclosing
party, or (iv) information that is independently developed by the receiving
party.
12. Term; Termination. This Agreement will terminate on the first to occur
of:
12.1. Three (3) years from the effective date, as set forth in Section 13
below; or
12.2. The occurrence of any one of the following events: (i) if the other
party shall default in the performance of any of its material agreements,
obligations or covenants herein and such default continues for (A) fifteen (15)
days in the case of a monetary default or (B) sixty (60) days as to any other
default, after receipt of written notice of cancellation from the other party;
provided, however, in the case of a nonmonetary default, if such default cannot
be cured within such sixty (60) day period, if the defaulting party shall
promptly commence, within such sixty (60) day period, the steps necessary to
cure such default and shall thereafter proceed with due diligence to complete
the steps necessary to cure such default as expeditiously as possible, thereby
upon such cure, notice of cancellation hereof shall be deemed rescinded; or (ii)
if a party liquidates or winds up all or a material portion of its business,
dissolves or terminates its existence, becomes insolvent or unable to pay its
debts as they mature, commits any act of bankruptcy, makes an arrangement,
composition or assignment for the benefit of creditors, files, has filed against
it or consents to the filing of any petition in bankruptcy for liquidation or
reorganization, or
- 8 -
<PAGE>
otherwise is the subject of any insolvency proceeding of any kind or nature,
immediately upon receipt by such party of written notice of cancellation from
the other party. Any such termination of this Agreement shall not constitute a
waiver by either party of its other rights and remedies hereunder, at law, in
equity or otherwise.
13. Effective Date of Agreement. Notwithstanding any contrary provision
herein, this Agreement shall come into force and be effective only upon, and as
of, the Closing on the Closing Date of the Asset Purchase Agreement.
14. General Provisions.
14.1. Notices. All notices required to be given hereunder shall be in
writing and shall be deemed to have been given if (i) delivered personally, (ii)
delivered via one-day overnight courier, (iii) transmitted by telefax, or (iv)
mailed by registered or certified mail (return receipt requested and postage
prepaid) to the following listed persons at the addresses and telefax numbers
specified below, or to such other persons, addresses or telefax numbers as a
party entitled to notice shall give, in the manner hereinabove described, to the
others entitled to notice:
If to Crown to:
Crown Paper Co.
300 Lakeside Drive
Oakland, CA 94612-3592
Attention: General Counsel
Telefax No.: (510) 874-3595
with a copy to:
Sulloway & Hollis, P.L.L.C.
9 Capitol Street, P.O. Box 1256
Concord, NH 03302-1256
Attention: John M. Sullivan, Esq.
Telefax No.: (603) 226-2404
If to PPA:
Pulp & Paper of America LLC
135 Engineers Road
Hauppauge, NY 11788
Attention: Mr. Mehdi Gabayzadeh
Telefax No.: (516) 435-8980
- 9 -
<PAGE>
with a copy to:
Mandel & Resnik P.C.
220 East 42nd Street
New York, New York 100 17
Attention: Nicholas J. Kaiser, Esq.
Telefax No.: (212) 573-0067
If given personally or transmitted by telefax, a notice shall be deemed to have
been given when it is received. If given by one-day overnight courier, notice
shall be deemed to have been given on the next business day following delivery
to the courier. If given by mail, it shall be deemed to have been given on the
third business day following the day on which it was posted. Notices and other
communications given by attorneys for PPA and Crown shall be deemed given by,
respectively, PPA and Crown.
14.2. Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
14.3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.4. Waiver. No waiver of any of the provisions hereof shall be effective
unless in writing and signed by the party to be charged with such waiver. No
waiver shall be deemed a continuing waiver or waiver in respect of any
subsequent breach or default, whether of similar or different nature, unless so
expressly stated in writing.
14.5. Modification. This Agreement may not be orally canceled, changed,
modified or amended, and no cancellation, change, modification or amendment
shall be effective or binding, unless in writing and signed by all of the
parties to this Agreement.
14.6. Severability. If any provision of this Agreement is found to be void
or unenforceable by a court of competent jurisdiction, the remaining provisions
of this Agreement shall nevertheless be binding upon the parties with the same
effect as though the void or unenforceable part had been severed and deleted.
14.7. Number and Gender. All terms and words used in this Agreement,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
14.8. Miscellaneous. This Agreement (i) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and thereof;
(ii) is not intended to and shall not confer upon any other person or business
entity, other than the parties hereto, any rights or remedies with respect to
the subject matter hereof; (iii) shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; and (iv)
shall not
- 10 -
<PAGE>
be assigned by operation of law or otherwise without the prior written consent
of the parties hereto, which shall not be unreasonably withheld.
14.9. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York. PPA and Crown hereby
expressly consent to the jurisdiction of the Supreme Court of the State of New
York with respect to any action or proceeding between PPA and Crown with respect
to this Agreement or any rights or obligation of such party pursuant to this
Agreement and each of PPA and Crown agrees that the venue shall lie in Suffolk
County.
14.10. Force Majeure. Neither party will be liable for any failure or delay
in performing an obligation under this Agreement that is due to causes beyond
its reasonable control, such as natural catastrophes, governmental acts or
omissions, laws or regulations, labor strikes or difficulties, transportation
stoppages or slowdowns or the inability to procure parts or materials. These
causes will not excuse PPA from paying accrued amounts due to Crown through any
available lawful means acceptable to Crown.
In witness whereof, the parties hereto have caused this Agreement to be
executed as of the date first above written.
PULP & PAPER OF AMERICA LLC
By: /s/ Mehdi Gabayzadeh
------------------------
Mehdi Gabayzadeh
Manager
CROWN PAPER CO.
By: /s/ Robert A. Olah
------------------------
Robert A. Olah
President
- 11 -