EXIBIT E
SUPPLY AGREEMENT
This SUPPLY AGREEMENT (the "Agreement"), effective as of December 4, 1995,
is made by and between DYERSBURG FABRICS INC., a Tennessee corporation (the
"Seller"), and XXXXXXXX'X, INC. OF ALABAMA, an Alabama corporation (the
"Buyer").
W I T N E S S E T H
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WHEREAS, simultaneously with the execution of this Agreement, Buyer has
purchased certain assets of Xxxxx Xxxxx, Inc. of North Carolina, an affiliate of
Seller, used to knit, dye and finish fabric for Seller and other persons; and
WHEREAS, Seller desires to supply Buyer's requirements of the products
listed on Schedule 1 (the "Products"), and Buyer desires to purchase from Seller
all of Buyer's requirements of the Products, subject to the terms and provisions
hereof; and
WHEREAS, Buyer desires for Seller to perform certain commission dyeing and
finishing with respect to fabrics produced by Buyer;
NOW, THEREFORE, for and in consideration of the foregoing premises and the
mutual covenants contained herein, and for other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. TERM. Unless earlier terminated, this Agreement shall begin as of
December 4, 1995 (the "Effective Date") and extend through and including
November 30, 1997.
2. PRODUCT REQUIREMENTS.
2.1 Basic Requirements. During the term of this Agreement and in
accordance with the terms and conditions hereof, Seller hereby agrees to
sell and deliver, and Buyer agrees to buy, receive, and pay for, all of the
Buyer's requirements for the Products for use in the ordinary course of the
Buyer's business at the prices determined in accordance herewith.
2.2 Minimum Requirements. During the term of this Agreement, Buyer shall
have minimum requirements for the Products as set forth on Schedule 1, and
in no event shall Buyer order less than the minimum amounts of the
Products. Buyer shall be deemed to have purchased its minimum requirements
so long as the aggregate number of yards of all Products purchased by Buyer
equals or exceeds the aggregate number of yards of all Products required to
be purchased pursuant to Schedule I, even though Buyer purchased less than
the minimum number of yards of any particular Product.
2.3 New Products. If, during the term of this Agreement, Buyer requires
any knitted fabric item that is not listed on Schedule 1, but is of a type
that is manufactured by Seller, Buyer shall offer Seller the opportunity to
submit an offer to supply such item, based upon Buyer's specifications for
such item, to Buyer. It is expressly acknowledged and agreed that Buyer has
no obligation to select Seller as the supplier of any such item and that
Buyer's only obligation hereunder with respect to such item is to allow
Seller the opportunity to submit an offer to supply such item.
2.4 Products Purchased From Third Parties. If, notwithstanding Seller's
receipt of Buyer's purchase order for Products as set forth on Schedule I,
Seller is unable or unwilling to perform in accordance with such purchase
order, whether due to failure to deliver within the time specified or
failure to provide Products of kind and/or quality consistent with Products
previously accepted by Buyer, Buyer shall be entitled to purchase such
Products as provided in the purchase order from any other third party on
such terms as Buyer shall determine in its sole discretion ("Third Party
Purchases"). All Third Party Purchases shall be included in computing the
minimum purchase requirements by Buyer of Products under this Agreement as
if such Third Party Purchases were purchased from Seller.
3. PRODUCT PRICES. The prices for the Products shall be the prices agreed
upon by the Buyer and Seller at the time of delivery; provided, that if the
parties cannot agree upon the price of a Product, the price will be determined
by reference to the market prices for the particular Product of similar quality
and quantity.
4. F.O.B. TERMS. The prices for the products determined in accordance with
Section 3 are F.O.B., 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. The term
F.O.B. as used in this Agreement is a price term only, and Seller shall have the
risk of loss until the Products covered by this Agreement have been delivered to
the facility of Buyer.
5. COMMISSION DYE AND FINISHING. During the term of this Agreement, Buyer
may, from time to time, request that Seller dye and/or finish certain goods to
be sold by Buyer (the "Commission Goods"). For such services, Seller will charge
Buyer, and Buyer will pay, Seller's cost in performing such services as set
forth on Schedule 2 plus a commission of $.10 per pound of Commission Goods dyed
and/or finished by Seller. Buyer guarantees that Seller shall be paid not less
than $250,000 plus its costs for performing such services pursuant to this
Section 5. Buyer shall not be required to pay the $.10 commission once the total
commissions paid equals $250,000.
6. DELIVERY AND INSPECTION. Delivery of the Products and Commission Goods
by Seller shall be made at Buyer's place of business at 0000 Xxx Xxxxxx Xxxx,
Xxxx, Xxxxxxx 00000, or at such other place of business of Buyer within the
United States as may be designated by Buyer in any purchase order or other
document initiating a purchase or service under this Agreement.
7. PAYMENT OF PURCHASE PRICE. Buyer shall pay the purchase price or
commission, as applicable, for all Products and Commission Goods delivered
hereunder within the time period set forth in the appropriate invoice.
8. TERMINATION.
8.1 Termination By Buyer. Buyer may terminate this Agreement for cause
only upon breach by Seller of any of its obligations under this Agreement
and failure by Seller to cure such breach within thirty days of notice of
breach.
8.2 Termination By Seller. Seller may terminate this Agreement for cause
only upon Buyer's breach of its obligations under this Agreement and
failure by Buyer to cure such breach within thirty days of notice of
breach.
9. REMEDIES.
9.1 The remedies available to the parties to this Agreement, whether by
virtue of the provisions of the Tennessee Uniform Commercial Code, or by
the terms of this Agreement, are in addition to and cumulative with all
remedies arising under any collateral or ancillary agreements between the
parties.
9.2 Buyer shall recover all direct damages resulting from any breach by
Seller, including, but not limited to, all expenses reasonably incurred in
inspection, receipt, transportation, and care and custody of goods
rightfully rejected.
10. NOTICES, PURCHASE ORDERS.
10.1 Any notice required or desired to be furnished under this Agreement
shall be in writing, postage prepaid, and shall be sent by United States,
certified, registered, or express mail, by an overnight delivery service
(e.g., FedEx), or by facsimile transmission and addressed or delivered to
the party receiving notice at the address designated below. Any notice
shall be deemed to be given (i) when received or when first refused if
mailed or sent by overnight delivery service, and (ii) when received if
transmitted by facsimile transmission. All such notices shall be addressed
as follows:
If to Buyer: Xxxxxxxx'x, Inc. of Alabama
c/x Xxxxxxxx'x, Inc.
Xxxxx 000, 000 Xxxx Xxxxxxxxxx Pike
Plymouth Meeting, PA 19462-1420
Attn: Xxxxx Xxxxxxx
Fax: 000-000-0000
If to Seller: Dyersburg Fabrics Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
In like manner, any party may change the address to which notice to it
is to be sent.
10.2 Any orders by Buyer of any Products to be delivered hereunder may
be on Buyer's standard purchase order and may be sent by regular mail to:
Dyersburg Fabrics Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
At the request of Seller, upon mailing any such order, Buyer shall also
send to Seller either a telecopy of such purchase order to such location as
may be reasonably designated by Seller. At the request of Buyer, Seller
also shall accept orders from Buyer by telex or electronic data interchange
or transmission.
11. ASSIGNMENT. This Agreement and the covenants, restrictions, and
limitations contained herein shall be binding upon and shall be to the benefit
of each of the parties and their respective successors and assigns; provided,
however, that neither Buyer's nor Seller's obligations under this Agreement may
be assigned or delegated without the prior written consent of the other party.
12. WAIVER. The failure of either Buyer or Seller to seek redress for the
breach of, or to insist upon the strict performance of, any term, clause, or
provision of this Agreement, shall not constitute a waiver of such breach of
non-performance, unless such waiver shall be in writing and signed by the party
executing the waiver. Any waiver so signed shall not constitute a waiver of any
difference or subsequent breach or non-performance.
13. VALIDITY OF PROVISIONS. Whenever possible, each provision and term of
this Agreement shall be interpreted in such a manner as to be valid and
enforceable; provided, however, that in the event any provision or term of this
Agreement should be determined to be invalid or unenforceable, all other
provisions and terms of this Agreement and the application thereof to all
persons and circumstances subject thereto shall remain unaffected to the extent
permitted by law. If any application of any provisions or term to other persons
and circumstances shall remain unaffected to the extent permitted by law.
14. CONSTRUCTION. This Agreement shall be construed and interpreted in
accordance with the laws of the state of Tennessee including, except when
expressly inconsistent therewith, the provisions of the Tennessee Uniform
Commercial Code, T.C.A. Sections 47-1-101 et. seq., including all definitions
contain therein. Section or paragraph headings are employed herein solely for
convenience of reference, and such headings shall not in any way affect meaning,
validity, or enforceability of any term or provision of this Agreement. All
references herein to "section" or "paragraph" shall mean the appropriate
numbered section or paragraph of this Agreement except where reference is
particularly made to some other instrument or document.
15. FORCE MAJEURE. Either party will be excused from performance of its
duties under this Agreement during any period of time when that party is
prevented from so performing due to act of God, war, riot, acts of governmental
authorities, or other cause beyond its control other than due to labor stoppage,
slowdown or other labor related issues; provided, however, that should such
continue for a period of two consecutive months, the other party may, at its
option, terminate this Agreement.
16. RELATIONSHIP OF THE PARTIES. It is the express intention of the parties
hereto that Seller is and shall be an independent contractor under this
Agreement, and no partnership, joint venture, or fiduciary relationship shall
exist between Buyer and Seller. This Agreement does not constitute either party
as the agent, legal representative or employee of the other for any purpose
whatsoever, and neither party is granted any right or authority to assume or
create any obligation for or on behalf of, or in the name of, the other party or
in any way to bind the other party.
17. COSTS AND EXPENSES. Except as otherwise expressly provided in this
Agreement, each party hereto shall be responsible for the payment of the fees
and expenses (including legal fees and expenses) incurred by that party in
connection with this Agreement and the transactions contemplated herein.
18. ENTIRE AGREEMENT: MODIFICATION. This Agreement, as executed,
constitutes the entire agreement between the parties and no representation,
promise, condition, warranty or understanding, other than herein set forth,
shall be binding upon any of the parties hereto. Non of the provisions of this
Agreement may be waived, altered, or amended except in a writing signed by the
party to be bound thereby.
19. PURCHASE ORDERS. The terms and conditions of Buyer's purchase order
shall control the rights and obligations of the parties unless expressly
inconsistent with the provisions of this Agreement, in which case this Agreement
shall control the rights and obligations of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, each
by its duly authorized officer and representative, as of the date and year first
above written.
DYERSBURG FABRICS INC. XXXXXXXX'X, INC. OF ALABAMA
By: By: /s/ Xxxxxx X. Xxxxxxx
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Title: Title: Treasurer
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