EXHIBIT 10.26
CONSENT
THIS CONSENT (the "Consent") is entered into by and between AVONDALE
XXXXX, INC. ("Xxxxx"), an Alabama corporation, and THE X.X. XXXXXXXX COMPANY
("BFG"), a New York corporation.
RECITALS
A. BFG and Xxxxx are parties to that certain Supply Agreement
made and entered into March 31, 1996 (the "Supply Agreement"), pursuant to which
BFG (as successor by merger to C.H. Patrick & Co., Inc. ) has agreed to sell to
Xxxxx and Xxxxx has agreed to purchase from BFG certain textile dyes and
chemicals.
B. On November 28, 2000, BFG and PMD Group Inc. ("PMD") entered
into an Agreement for the Sale and Purchase of Assets (the "Asset Purchase
Agreement"), pursuant to which BFG will be selling substantially all of the
assets of its Performance Materials business segment (with the exception of its
Textile Dyes Business) to PMD (the "PMD Transaction").
C. BFG has announced its intention to sell to CHP Acquisition
Group ("CHP") the Textile Dyes Business of its Performance Materials Business
segment (the "CHP Acquisition").
D. In connection with the consummation of the PMD Transaction,
BFG desires the consent of Xxxxx to the assignment to PMD of the Supply
Agreement, to the extent such Supply Agreement relates to the purchase and
supply of chemicals (excluding dyes and dyes auxiliaries).
E. In connection with the consummation of the CHP Acquisition,
BFG desires the consent of Xxxxx to the assignment to CHP of the Supply
Agreement to the extent such Supply Agreement relates to the purchase and supply
of dyes and dyes auxiliaries.
X. Xxxxx consents to the assignments upon the terms and
conditions set forth in this Consent.
NOW, THEREFORE, for good and valuable consideration, the parties agree
as follows:
1. Xxxxx hereby consents to the assignment of the Supply
Agreement to PMD simultaneously with the closing of the PMD Transaction to the
extent such Supply Agreement relates to the purchase and supply of chemicals
(excluding dyes and dyes auxiliaries).
2. Xxxxx hereby consents to the assignment of the Supply
Agreement to CHP simultaneously with the closing of the CHP Acquisition to the
extent such Supply Agreement relates to the purchase and supply of dyes and dyes
auxiliaries.
3. Simultaneously with the closing of the PMD Transaction, PMD
will assume all
the obligations and covenants of "Seller" under the Supply Agreement to the
extent such Supply Agreement relates to the purchase and supply of chemicals
(excluding dyes and dyes
auxiliaries)(as assigned, the "PMD Supply Agreement"). Simultaneously with the
closing of the CHP Acquisition, CHP will assume all of the obligations of the
Supply Agreement, to the extent such Supply Agreement relates to the purchase
and supply of dyes and dyes auxiliaries (as amended and assigned by that certain
Amendment and Partial Assignment of Supply Agreement, the "CHP Supply
Agreement"). Such assumption by PMD shall be made in the form of a written
assumption agreement executed by the duly authorized officer of PMD in form and
substance reasonably satisfactory to Xxxxx. Such assumption by CHP is evidenced
by the Amendment and Partial Assignment of Supply Agreement between CHP and
Xxxxx of even date herewith.
4. Notwithstanding anything to the contrary contained in this
Consent, the consents and agreements of Xxxxx herein described shall be
effective only upon BFG's payment to Xxxxx of an amount as agreed to between the
parties under separate cover (the "Consideration"). Xxxxx agrees to provide
written notification of receipt of the Consideration immediately upon receipt.
This Consent shall be null and void if the Consideration is not received by
Xxxxx on or prior to February 22, 2001.
5. Xxxxx and BFG hereby acknowledge that PMD and CHP are intended
beneficiaries of this consent.
IN WITNESS WHEREOF, Xxxxx has caused this Consent to be executed by its
duly authorized officers as of the date and year first written above.
AVONDALE XXXXX, INC.
By:
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Name:
-----------------------------------
Title:
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ACCEPTANCE:
THE X.X. XXXXXXXX COMPANY hereby accepts the consent on the terms set forth
above as of the _______day of February, 2001.
THE X.X. XXXXXXXX COMPANY
By:
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Name:
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Title:
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FIRST AMENDMENT
This First Amendment to that certain Consent made and entered into
February 21, 2001 by and between AVONDALE XXXXX, INC. ("Xxxxx"), an Alabama
corporation and THE X.X. XXXXXXXX COMPANY ("BFG"), a New York corporation is
made and entered into as of the 22nd day of February, 2001.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, BFG and Xxxxx agree to amend the Consent as
follows:
- Paragraph three shall be amended so that the following new sentence
is added at the end of the current paragraph:
"From and after the date hereof, the CHP Supply Agreement and
the PMD Supply Agreement shall be deemed separate contractual
relationships and a default under one shall not constitute a
default under the other."
In all other respects, the Consent remains in full force and effect and
unmodified.
THE X.X. XXXXXXXX COMPANY
By:
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Name:
-----------------------------------
Title:
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AVONDALE XXXXX, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
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PARTIAL ASSIGNMENT AND ASSUMPTION OF
SUPPLY AGREEMENT
THIS AMENDMENT AND PARTIAL ASSIGNMENT OF SUPPLY AGREEMENT ("Agreement")
is entered into as of February ____, 2001, by and among PMD GROUP INC., a
Delaware corporation (the "Purchaser"), THE X.X. XXXXXXXX COMPANY, a New York
corporation (the "Seller"), and AVONDALE XXXXX, INC., an Alabama corporation
("Xxxxx").
RECITALS:
A. Seller and Xxxxx are parties to that certain Supply Agreement
made and entered into March 31, 1996 (the "Supply Agreement"), pursuant to which
Seller (as successor by merger to C.H. Patrick & Co., Inc.) has agreed to sell
to Xxxxx and Xxxxx has agreed to purchase from BFG certain textile dyes and
chemicals.
B. Seller and Purchaser have entered into that certain Agreement
for Sale and Purchase of Assets dated November 28, 2000 (the "Asset Purchase
Agreement"). Pursuant to the Asset Purchase Agreement, Seller desires to deliver
to Purchaser at Closing a partial assignment of the Supply Agreement.
C. The parties desire to enter into this Agreement to accomplish
the partial assignment and assumption of the Supply Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Assignment of Supply Agreement. Seller hereby sells,
transfers, grants, assigns, delivers and conveys to Purchaser, its successors
and permitted assigns the Supply Agreement, to the extent such Supply Agreement
relates to the purchase and supply of chemicals (excluding dyes and dyes
auxiliaries).
TO HAVE AND TO HOLD such Supply Agreement unto Purchaser and its
successors and permitted assigns for its and their own use.
2. Assumption of Certain Obligations. In consideration of the
partial transfer of title to the Supply Agreement from Seller to Purchaser,
Purchaser hereby assumes all obligations of ""Seller""under the Supply
Agreement, to the extent such obligations relate to the purchase and supply of
chemicals (excluding dyes and dyes auxiliaries), and agrees to satisfy or
perform such obligations in accordance with their respective terms.
3. Further Assurances. From time to time following delivery of
this Agreement,
Seller or Purchaser (upon reasonable request of the other) shall do such further
acts as may be reasonably necessary or appropriate to carry out the transactions
contemplated by this Agreement, including, without limitation, obtaining
consents from any third party. Notwithstanding the foregoing, from and after the
delivery of this Agreement, upon reasonable request of Purchaser, Seller shall
do, execute, acknowledge and deliver, and shall cause its affiliates to do,
execute, acknowledge and deliver, all such further acts, assurances, deeds,
assignments, transfers, conveyances, powers of attorney and other instruments
and papers as may be reasonably required to sell, assign, transfer, convey and
deliver to and vest in Purchaser ownership of the Supply Agreement.
4. Tolling Agreements. Notwithstanding any prior course of
conduct between the Seller and Xxxxx, PMD recognizes that the Supply Agreement
does not permit PMD or any successor or permitted assign either to supply
chemicals under the Supply Agreement pursuant to "tolling agreements" or similar
arrangements in which PMD does not either manufacture the relevant product or to
take delivery of the product from a third party at PMD's place of business and
perform some other value-added service prior to delivery to Xxxxx, except to the
extent such arrangements are already in place and are necessary to permit PMD to
satisfy its obligations under any "Purchase Order" (as defined in the Supply
Agreement) that has been submitted by Xxxxx and accepted by the Seller prior to
the date hereof (the "Existing Arrangements"). PMD recognizes that any tolling
arrangement or similar arrangements relating to new business or amendments or
renewals of Existing Arrangements (including purchase orders that are
periodically repeated) will be subject to the prior written consent of Xxxxx.
5. Asset Purchase Agreement. As between Seller and Purchaser,
this Agreement is expressly made pursuant to, and subject to the limitations
contained in, the Asset Purchase Agreement. Nothing herein is intended to
modify, limit or otherwise affect the representations, warranties, covenants and
agreements contained in the Asset Purchase Agreement, and such representations,
warranties, covenants and agreements shall remain in full force and effect in
accordance with the terms of the Asset Purchase Agreement. As between Purchaser
and Seller, in the event of a conflict between the terms of this Agreement and
the terms of the Asset Purchase Agreement, the terms of the Asset Purchase
Agreement shall govern, supersede and prevail.
6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
7. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto.
8. Binding Effect; Governing Law. This Agreement is executed by,
and shall be binding upon the parties and their respective successors and
assigns, for the uses and purposes set forth above, effective as of the date set
forth above.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first above written.
PMD GROUP, INC.
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
THE X.X. XXXXXXXX COMPANY
By:
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
AVONDALE XXXXX, INC.
By:
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Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman
AMENDMENT AND PARTIAL ASSIGNMENT OF
SUPPLY AGREEMENT
THIS AMENDMENT AND PARTIAL ASSIGNMENT OF SUPPLY AGREEMENT ("Agreement")
is entered into as of February ____, 2001, by and among CHP ACQUISITION GROUP,
INC., a North Carolina corporation ("CHP" or the "Purchaser"), THE X.X. XXXXXXXX
COMPANY, a New York corporation ("BFG" or the "Seller") and AVONDALE XXXXX,
INC., an Alabama corporation ("Xxxxx").
RECITALS:
A. Seller and Xxxxx are parties to that certain Supply Agreement
made and entered into March 31, 1996 (the "Supply Agreement"), pursuant to which
Seller (as successor by merger to C. H. Patrick and Co., Inc.) has agreed to
sell to Xxxxx and Xxxxx has agreed to purchase from BFG certain textile dyes and
chemicals.
B. Seller and Purchaser have entered into that certain Asset
Purchase Agreement dated as of February ___, 2001 (the "Purchase Agreement").
Pursuant to the Purchase Agreement, Seller desires to deliver to Purchaser at
Closing a partial assignment of the Supply Agreement.
C. The parties desire to enter into this Agreement to accomplish
the partial assignment and assumption of the Supply Agreement and amend the
Supply Agreement as provided herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Assignment of Supply Agreement. Seller hereby sells,
transfers, grants, assigns, delivers and conveys to Purchaser, its successors
and permitted assigns the Supply Agreement, to the extent such Supply Agreement
relates to the purchase and supply of dyes and dyes auxiliaries.
TO HAVE AND TO HOLD such Supply Agreement unto Purchaser and its
successors and permitted assigns for its and their own use.
2. Assumption of Certain Obligations. In consideration of the
partial transfer of title to the Supply Agreement from Seller to Purchaser,
Purchaser hereby assumes all obligations of "Seller" under the Supply Agreement,
to the extent such obligations relate to the purchase and supply of dyes and
dyes auxiliaries, and agrees to satisfy or perform such obligations in
accordance with their respective terms.
3. Further Assurances. From time to time following delivery of
this Agreement, Seller and Purchaser shall execute and deliver, or cause to be
executed and delivered, at Seller's and Purchaser's own expense, respectively,
to each other such other instruments and documents as may be reasonably
requested or as may be otherwise reasonably necessary to consummate the
transactions contemplated by the Purchase Agreement. Notwithstanding anything in
this Agreement to the contrary, this Agreement shall not constitute an agreement
to assign any license, certificate, approval, authorization, agreement,
contract, lease, easement or other commitment included in the Assets if an
attempted assignment thereof without the consent of a third party thereto or
Governmental Authority would constitute a breach thereof or a violation of
applicable law. If any such consent shall not be obtained or if any attempted
assignment would be ineffective, Seller shall cooperate to the extent permitted
by law with Purchaser in any other reasonable arrangement designed to provide to
Purchaser the benefits of any such license, certificate, approval,
authorization, agreement, contract, lease, easement or other commitment.
4. Tolling Agreement. Notwithstanding any prior course of conduct
between the Seller and Xxxxx, CHP recognizes that the Supply Agreement does not
permit CHP or any successor or permitted assign either to supply dyes or dyes
auxiliaries, respectively, under the Supply Agreement pursuant to "tolling
agreements" or similar arrangements in which CHP does not either manufacture the
relevant product or to take delivery of the product from a third party at CHP's
place of business and perform some other value-added service prior to delivery
to Xxxxx, except to the extent such arrangements are already in place and are
necessary to permit CHP to satisfy its obligations under any "Purchase Order"
(as defined in the Supply Agreement) that has been submitted by Xxxxx and
accepted by the Seller prior to the date hereof (the "Existing Arrangements").
CHP recognizes that any tolling arrangement or similar arrangements relating to
new business or amendments or renewals of Existing Arrangements (including
purchase orders that are periodically repeated) will be subject to the prior
written consent of Xxxxx.
5. Amendment to the Supply Agreement. The fourth sentence of
Article2.1(c) of the Supply Agreement shall be amended to add the following at
the beginning of that sentence: "Except as provided in the next sentence,". The
following sentence is added immediately after the fourth sentence: "If the
Seller delivers a Last Bid to Buyer on or after January 1, 2002, Buyer will
purchase from Seller (at Seller's election as specified in the Last Bid) not
less than 30% and not more than 40% of any or all of the Products that were the
subject of the Last Bid during the term specified in the Bid Package. Except as
provided herein, all of the other terms and conditions of the Supply Agreement
are unchanged and remain in full force and effect.
6. Binding Effect. This Agreement is executed by, and shall be
binding upon, the parties hereto and their respective successors and assigns,
for the uses and purposes set forth above, effective as of the date set forth
above.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first above written.
CHP ACQUISITION GROUP, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE X.X. XXXXXXXX COMPANY
By:
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Name: Xxxxx X. Xxxxxxx
Title: President
AVONDALE XXXXX, INC.
By:
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Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first above written.
CHP ACQUISITION GROUP, INC.
By:
-------------------------------------
Name:
Title:
THE X. X. XXXXXXXX COMPANY
By:
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
AVONDALE XXXXX, INC.
By:
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Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman
