This amended Market Alliance Agreement ("Agreement") is hereby entered into as of March 24, 2009, (hereinafter the “Effective Date”) by and between
Exhibit
10.1
®This
amended Market Alliance Agreement ("Agreement") is hereby entered
into
as of
March 24, 2009, (hereinafter the “Effective Date”) by and between
E. I. du
Pont de Nemours and Company,
through
its Packaging & Industrial Polymers business,
Barley
Mill Plaza Building 26
4417
Lancaster Pike
Wilmington,
Delaware 19805)
(hereinafter
known as “DuPont” or “Seller”)
and PGT
Industries, Inc. (hereinafter known as “PGT” or “Buyer")
of 0000
Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
DuPont
and Buyer are hereinafter collectively referred to as the “Parties” and
individually as a “Party.” Intending to be legally bound, Buyer
agrees to purchase from DuPont and DuPont agrees to sell to Buyer pursuant to
the following conditions:
1. DEFINITIONS. The Parties agree
that following terms shall have the meanings ascribed below:
“Product” – means SentryGlas®
Plus, ionoplast structural interlayer produced by DuPont and sold pursuant to
this Agreement.
“Total Interlayer” – means
rolls or sheets of polyvinyl butyral produced by any entity (including DuPont)
and ionoplast structural interlayer produced by DuPont.
2. SCOPE. The Parties
agree and acknowledge that the sale of Product to Buyer pursuant to this
Agreement is strictly for usage and production at its glass laminating
facilities within the United States. The Parties also agree to review
aspects of this agreement on a quarterly basis.
3.
PRODUCTS/QUANTITY. DuPont shall sell and Buyer shall purchase
the following amounts of Product in accordance with the terms and conditions set
forth in Attachment A, Section 1.
4. PRICE. Buyer
shall pay DuPont the prices listed in Attachment A, Section 2 for the Products
it purchases from DuPont.
5. TERM OF
CONTRACT. Parties agree to the terms of the contract set forth
in Attachment A, Section 3.
6. TERMS OF
PAYMENT. Buyer shall pay DuPont for Products within thirty
(30) days of the date of DuPont’s invoice.
7. PROGRAMS. Parties
agree to work together and comply with the program provisions set forth in
Attachment A, Section 4.
8. DELIVERY TERMS. Delivery will
be made within the 48 contiguous United States FOB. Transportation
will be by method, route and carrier selected by DuPont; Buyer to bear the
excess cost of any alternate method, route, or carrier selected by
Buyer.
9. USER
PROTECTION. Buyer acknowledges that it has received and is
familiar with DuPont’s labeling and literature concerning the Products and will
communicate such information to its employees who handle, use, or process such
Products.
DuPont
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10. ENTIRE
AGREEMENT. This Agreement along with DuPont’s terms and
conditions for sale of products constitute the entire contract between the
Parties regarding the subject matter described herein. The terms and
conditions for sale are attached hereto and marked as Attachment A, Section
6. There are no other agreements, warranties, terms or conditions,
expressed or implied, between the Parties.
11. ASSIGNMENT/AMENDMENT/WAIVER/
TRANSFER OF ASSETS.
(a)The
rights and obligations covered herein are personal to each Party hereto, and for
this reason neither party may assign this Agreement in whole or in part; nor
shall either party subcontract any of its obligations hereunder without the
prior written consent the other. This Agreement may not be
amended except by in writing signed by both Parties. No waiver of any
provision of this Agreement by either Party shall be enforceable against that
Party unless it is in writing and signed by both Parties.
(b) PGT shall notify DuPont in writing,
as soon as is legally permissible, if, during the term of this Agreement, either
party reasonably expects to consolidate with or merge with another corporation
or to sell, assign, or otherwise dispose of substantially all of its assets used
to perform under this Agreement; over twenty percent (20%) of
its ownership or controlling interest (whether in the form of stock or
otherwise); If such occurrence or proposed occurrence is unacceptable to DuPont
because the third party merging or purchasing PGT is an adverse party to
DuPont’s Glass Interlayer Business , DuPont may terminate
this Agreement upon written notice to the other party.
12. BANKRUPTCY/
REORGANIZATION. In the event either
Party is found to be insolvent, has a petition in bankruptcy filed against it,
files a petition in bankruptcy or petitions for reorganization, this Agreement
will automatically terminate as to future obligations. The party who
is insolvent or who is under bankruptcy will still be obligated to perform all
material obligations under this Agreement.
13. NOTICES. All
notices required hereunder shall be sent by United States Postal or a recognized
carrier to the Party to be notified at the addresses specified
above.
14. HARDSHIP. The
Parties agree to the hardship conditions set forth in Attachment A, Section
5.
15. GOVERNING
LAW. This Agreement shall be governed by the laws of the State
of Delaware.
16.
CONFIDENTIALITY. Any knowledge or information disclosed
between Buyer and DuPont which relates in any way to the Products and services
of this Agreement, the prices contained within the Agreement, or the fact of
this Agreement, unless otherwise agreed to in writing, shall be deemed
proprietary and confidential and shall not be disclosed by either Party to any
third party and such shall remain the property of DuPont. Both
Parties shall keep confidential any technical, process, or economic information
derived from the other in connection with this Agreement and shall not divulge
such information, directly or indirectly, for the benefit of any Party unless
previously agreed to in writing by the other Party.
DuPont
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PGT’S
ACCEPTANCE: E.
I. DU PONT DE NEMOURS AND COMPANY
PGT
INDUSTRIES
PACKAGING & INDUSTRIAL POLYMERS
By: /s/ Xxxx
Xxxx By:
/s/ Xxxxxxx X.
Xxxxx
Title: Director of Strategic
Purchasing Title: President, DuPont Packaging
& Industrial Polymers
Printed
Name: Xxxx
Xxxx Printed
Name: Xxxxxxx X.
Xxxxx
Date:
March 24,
2009 Date:
March 24,
2009
DuPont
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Agreement-Page
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