EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT is made as of the ___ day of August 1997, by and between
ATLANTIS PLASTICS, INC., a Florida corporation ("ATLANTIS") and II EAGLES
PLASTICS, INC., a Tennessee corporation ("EAGLES").
R E C I T A L S:
A. On even date herewith, the parties have entered into that certain
Equipment Lease ("EQUIPMENT LEASE") wherein Atlantis has agreed to lease to
Eagles, and Eagles has agreed to lease from Atlantis, certain equipment (the
"EQUIPMENT") located in Davidson County, Tennessee, as more particularly
described in the Equipment Lease.
B. Eagles intends to use the Equipment to produce certain parts (the
"PARTS") which are from time to time required by the customers of Atlantis
designated on EXHIBIT "A" attached hereto (the "CUSTOMERS").
C. Atlantis has agreed to order all Parts from to time required by the
Customers from Eagles subject to the terms, provisions and conditions of this
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. The recitations stated above are true and correct and by this
reference are incorporated herein.
2. The term (the "TERM") of this Agreement shall commence on even date
herewith and terminate on July 31, 1998 (the "EXPIRATION DATE"), unless sooner
terminated as hereinafter provided.
3. Subject to the provisions of paragraph 4 below, Atlantis agrees
that, during the Term, to the extent that Atlantis receives orders for any of
the Parts from any of the Customers, Atlantis shall fill such orders and obtain
such Parts only from Eagles. Eagles understands and agrees that Atlantis can not
and will not guarantee that any orders will be placed by the Customers, or if
placed, the extent and quantity of same. Further, this Agreement shall not
require Atlantis to obtain Parts from Eagles from persons or entities other than
the Customers.
4. The obligation of Atlantis to obtain Parts from Eagles as set forth
in paragraph 3 above, shall be expressly conditioned and contingent upon the
Parts being of a quality which is equal to or greater than that established as
the industry standard, and upon Eagles being able to deliver the Parts within
fourteen (14) days following receipt of an order for same from Atlantis.
5. Throughout the Term, the price for the Parts shall be as set forth
in the third column of EXHIBIT "A".
6. Throughout the Term, Eagles acknowledges and agrees not to compete,
contact, solicit or in any manner to do business with any of Atlantis' current
customers, including without limitation the Customers. Furthermore, for a period
commencing upon the
Expiration Date and continuing for a period of one (1) year following the
Expiration Date, Eagles acknowledges and agrees not to compete, contact, solicit
or in any manner do business with the Customers, without the prior written
consent of Atlantis.
7. Failure by either party to perform any of its obligations under this
Agreement shall constitute a default hereunder. In addition a default by Eagles
under the Equipment Lease shall constitute default under this Agreement. The
provisions of this Agreement may be enforced by all appropriate actions at law
and in equity by the parties hereto, and their successors and assigns, with the
prevailing party in any such action entitled to reimbursement of reasonable
attorneys' fees and costs incurred at trial and all appellate levels.
8. All notices required or desired to be given under this Agreement
shall be in writing and shall be deemed given when either delivered personally,
sent by recognized overnight courier (such as Federal Express) or deposited in
the United States mail, certified mail, postage prepaid, return receipt
requested, to the parties at the following addresses, or such other addresses as
hereinafter indicated by appropriate written notice:
If to Atlantis: Xxxx Xxxxx
57500 C. R. 0 Xxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
If to Eagles: Xxx Xxxxxxx and Xxx Xxxx
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
9. MISCELLANEOUS:
(a) This Agreement shall be construed and governed in
accordance with the laws of the State of Tennessee, both substantive and
remedial.
(b) In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or otherwise invalid,
such provision shall be given its nearest legal meaning or be construed as
deleted as such authority determines, and the remainder of this Agreement shall
be construed to be in full force and effect.
(c) In the event of any litigation between the parties to
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees and court costs at trial and all appellate levels.
(d) In construing this Agreement, the singular shall be held
to include the plural, the plural shall be held to include the singular, the use
of any gender shall be held to include every other and all genders, and captions
and paragraph headings shall be disregarded.
(e) Time shall be of the essence in the performance of this
Agreement.
10. This Agreement constitutes the entire understanding and agreement
between the parties and supersedes and fully replaces any and all prior
agreements between the parties with respect to the subject matter hereof and
there are no representations or warranties, expressed or implied, except as may
be specifically
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set forth herein. This Agreement may not be changed, altered or modified except
by an instrument in writing signed by the party against whom enforcement of such
change would be sought. This Agreement shall be binding upon the parties hereto
and their respective successors and permitted assigns.
EXECUTED as of the day and year first above written.
Signed, sealed and delivered ATLANTIS:
in the presence of:
ATLANTIS:
ATLANTIS PLASTICS, INC.
a Florida corporation
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
-----------------------------------
Title: Vice President and G.M.
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SUBLESSEE:
EAGLES:
II EAGLES PLASTICS, INC.
a Tennessee corporation
By: /s/ HOBART X. XXXXXXX & XXX X. XXXX
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Name: Hobart X. Xxxxxxx & Xxx X. Xxxx
-----------------------------------
Title: Partners
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EXHIBIT "A"
CUSTOMER PRICE LIST
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