Exhibit 10.15
[LETTERHEAD OF XXXXXXXXX WORLD INDUSTRIES, INC.]
PURCHASE AGREEMENT
This Agreement, effective September 1, 2006 (the "Effective Date") by and
between Congoleum Corporation, a Delaware corporation ("Buyer"), with its
principal place of business at 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx
00000 ("Congoleum" or "Buyer"), who agrees to buy, and Xxxxxxxxx World
Industries, Inc. a Pennsylvania corporation Company, ("Xxxxxxxxx" or "Seller")
having its principal place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000 who agrees to sell the Products according to the terms and conditions set
forth below.
1. TERM: This Agreement shall be in effect as of the Effective Date and shall
continue through and including December 31, 2006 (the "Initial Term");
provided, however, that Buyer and Seller may extend this Agreement by
mutual consent by providing written notice to Seller no later than 90 days
before the end of the Initial Term or any successive monthly extension
thereof.
2. PRODUCTS: Seller agrees to manufacture and sell to Buyer, and Buyer agrees
to purchase from Seller, the coated felt products, as set forth in Exhibit
A (the "Products").
3. SPECIFICATIONS: The Products delivered by Seller to Buyer will comply in
all material respects with the specifications for the Products attached as
Exhibit B ("Specifications"); provided, however, that Seller shall have no
liability for any defect in the Product attributable in whole or in part
to any manufacturing defect in the felt used in the manufacture of the
Products. Seller will notify Buyer of any significant formula changes to
the Products prior to implementation.
4. PRICE AND PAYMENT TERMS: The purchase price for each Product delivered and
accepted shall be invoiced and paid at the price and terms as set forth in
Exhibit A.
5. PURCHASE REQUIREMENTS: Buyer agrees to purchase, for each month of this
Agreement, at least 90% of the total Product quantities as set forth on
Exhibit C, with such purchases to be spread approximately equally
throughout the month ("Requirements"), and Buyer agrees to be liable to
Seller for liquidated damages as defined herein for any quantity of
Products less than the Requirements actually purchased by Buyer. Upon
written request by the Buyer, Seller may agree to provide additional
Product quantities on an as available basis, but is under no obligation to
do so. Seller's obligations pursuant to this Agreement are contingent upon
the completion of any equipment modifications and/or additions required to
manufacture the Products to Buyer's requirements. Any required equipment
modifications and/or additions shall be completed at buyer's expense
pursuant to a separate agreement between the parties.
6. SERVICE AND DELIVERY: Seller will deliver the Products in accordance with
the delivery time, fill rate and terms provided in EXHIBIT A.
7. WARRANTY: Seller warrants that the Products delivered hereunder meet the
Specifications, excluding any warranty for any defect in the Product
attributable in whole or in part to any manufacturing defect in the felt
used in the manufacture of the Products. SELLER MAKES NO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER EXPRESS
OR IMPLIED WARRANTY. Buyer assumes all risk and liability resulting from
use of the Products delivered hereunder, whether used singly or in
combination with other products.
8. LIMITATION OF LIABILITY: No claim of any kind, whether as to the Products
delivered or for non-delivery of products, and whether or not based on
negligence, shall be greater in amount than the purchase price of the
Products in respect of which damages are claimed; and failure to give
notice of claim within ninety (90) days from date of delivery, or the date
fixed for delivery (in the case of nondelivery), shall constitute a waiver
by Buyer of all claims in respect of such products. No charge or expense
incident to any claims will be allowed unless approved by an authorized
representative of Seller. Products shall not be returned to Seller without
Seller's prior permission, and then only in the manner prescribed by
Seller. The remedy hereby provided shall be the exclusive and sole remedy
of Buyer. Except to the extent provided herein, in no event shall either
party be liable for special, indirect or consequential damages, whether or
not caused by or resulting from the negligence of such party.
9. LIQUIDATED DAMAGES: If Seller fulfills its obligations hereunder, but
Buyer fails to purchase the Requirements of Products as set forth herein
in any calendar month, Seller shall, as its sole and exclusive remedy
hereunder, be entitled to liquidated damages, due on the last day of the
Initial Term, in the amount of 79% of the purchase price for each Product
per square yard for each square yard of Product less than the Requirements
for each Product actually purchased by Buyer during each calendar month,
and such payment when received by Seller shall constitute and be
liquidated and agreed damages, whereupon this Agreement shall terminate
and the parties hereto shall be relieved of any further liability or
obligation to each other; it being expressly understood that the payment
of the aforesaid liquidated damage amount to Seller shall be the sole and
exclusive right and remedy of Seller, constitutes a fair and reasonable
amount for the damage sustained by Seller by reason of Buyer's breach of
this Agreement by failing to purchase the
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10. EXCHANGE OF INFORMATION: The contents of this Agreement are to be kept
confidential between the participating Parties. Each Party agrees to
furnish technical and business information as reasonably required to
satisfy the requirements of this Agreement only to the extent that each
Party is legally free to disclose such information, and neither party
shall be entitle to use such information for any other purpose.
11. CONFIDENTIAL INFORMATION: The parties acknowledge that in order for Seller
to provide Products contemplated by this Agreement, it may be necessary
for either party to disclose to the other certain technical, marketing, or
other information ("Confidential Information") and/or that such
Confidential Information may be learned by either party by observing the
other party's facilities in the course of performing its obligations under
this Agreement. Each party agrees that Confidential Information obtained
from the other party will be received and maintained in confidence and
will not be disclosed to any third parties, except those who have a need
to know such Confidential Information and have undertaken an obligation of
confidentiality. The parties further agree that Confidential Information
shall be used only for the performance of the receiving party's
obligations under this Agreement. All right, title and interest to
Confidential Information are and shall remain the property of the
disclosing party. The foregoing obligations shall survive termination or
expiration of this Agreement for five years after the termination or
expiration of this Agreement.
12. ASSIGNMENT: This Agreement is not assignable or otherwise transferable by
either party without the prior written consent of the other, which shall
not be unreasonably withheld or delayed. However, Seller may assign all or
any portion of its rights and obligations under this Agreement to or among
any of its affiliates or subsidiaries or in connection with a sale or
transfer of controlling interest in capital stock, a sale of all or
substantially all of its assets or the assets comprising its business or
pursuant to a merger or consolidation to which it is a party. Performance
by a subsidiary or affiliate of Seller constitutes performance by Seller.
13. GENERAL INDEMNITY: Buyer agrees to protect, defend, hold harmless and
indemnify Seller, its officers, directors, employees, agents and customers
from and against any and all claims, actions, liabilities, losses, costs,
damages and expenses arising out of or related to (a) any death or injury
to any person, any actual or alleged damage to any property, or any other
damage or loss, by any party whomsoever suffered, resulting or claimed to
result in whole or in part from any Products delivered hereunder, whether
used singly or in combination with other products, except to the extent
such claim relates solely the failure of such Products to comply with
Specifications (excluding felt defects) or with any express warranties of
Seller.
14. FORCE MAJEURE: Neither party shall be liable for delays or defaults due to
acts of God, acts of governmental authority, acts of public enemy, war,
fires, floods, epidemics, labor strikes, freight embargoes, economic
downturn, significant decline in demand for the party's products, or other
causes or contingencies reasonably beyond its control. In case of such
excusable delay or default, either party shall have the right to cancel
any order, and neither party shall be liable to the other for such
cancellation. Whenever Seller has knowledge of any actual or potential
delay in the timely performance of any order for any reason, Seller shall
immediately notify Buyer in writing of such delay.
15. NOTICES: All notices required for termination, delay, and force majeure
shall be deemed effective upon receipt and shall be in writing and mailed,
postage prepaid, to the addresses listed in the introductory paragraph.
16. TERMINATION: In the event that one party breaches a material provision of
this Agreement and fails, within thirty (30) days of written notice
specifying the nature of the breach, to cure such breach, then the
non-breaching party may immediately terminate this Agreement by subsequent
written notice to the breaching party.
17. DISPUTES: This Agreement shall be governed by the laws of the Commonwealth
of Pennsylvania, without regard to the conflict of laws rules thereof,
excluding the United Nations Convention on Contracts for the International
Sale of Goods. The Parties shall strive to settle any dispute, controversy
or claim arising from the interpretation or performance, or in connection
with, this Agreement ("Dispute") through friendly consultations. In the
event no settlement can be reached through consultations within thirty
(30) days of the submission of such matter by one Party to the other Party
(or Parties), then such matter shall be settled by arbitration, at
Philadelphia, Pennsylvania in accordance with the Arbitration Rules of the
American Arbitration Association ("AAA") in effect at the time of
arbitration. The Dispute shall be adjudicated by three (3) arbitrators,
one of whom shall be appointed by Seller and one of whom shall be
appointed by Buyer. The third arbitrator shall be appointed by the other
two arbitrators. Any arbitral award rendered in accordance with the
arbitration proceedings described above shall be final and binding upon
the Parties and shall be enforceable in accordance with its terms. The
award may be enforced by filing as a judgment in any court having
jurisdiction, or application may be made to such court for assistance in
enforcing the award, as the case may be.
18. OTHER RESTRICTIONS: Seller and Buyer represent and warrant to each other
that neither Buyer nor Seller is under the control of a national or
resident of any country restricted by the United States government and
that neither party nor any party owning or controlling such party is
identified on the list of Specially Designated Nationals (each a "SDN")
published by the United States Department of the Treasury at
xxx.xxxxx.xxx/xxxx.
19. ENTIRE AGREEMENT: The terms and conditions of this document, together with
the attached Exhibits, which are incorporated by reference, represent the
entire agreement between Buyer and Seller with respect to the sale of the
goods and services, supersedes all prior written and oral agreements and
can be modified only in writing signed by both parties.
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IN WITNESS WHEREOF, the Parties hereto, through their duly authorized officers,
have caused this Agreement to be executed as of the Effective Date written
above.
BUYER SELLER
By: /s/ Xxxx X. Xxxx, III By: /s/ Xxxxx Ready
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(Signature) (Signature)
Xxxx X. Xxxx, III Xxxxx Ready
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(Type or Print Name) (Type or Print Name)
Title: Senior Vice President, Operations Title: President
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Date: September 7, 2006 Date: 9/08/06
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