SUPPLY AGREEMENT
This supply agreement (the "Agreement") is made between the following parties on
February 2, 1998:
JELD-WEN, inc.
an Oregon corporation ("JELD-WEN"),
- and -
Xxxxxx Products Ltd.
a Delaware corporation ("Xxxxxx"),
WHEREAS, JELD-WEN, its subsidiaries and its affiliates (together the "Company")
is in the business of manufacturing and selling stile and rail doors and other
building products;
WHEREAS, JELD-WEN and Xxxxxx have entered an asset purchase agreement for the
sale of Xxxxxx'x Xxxxxx Manufacturing division to JELD-WEN (the "Asset Purchase
Agreement");
WHEREAS, Xxxxxx is in the business of distributing building products;
WHEREAS, the Company would like to have a steady customer for its products and
Xxxxxx would like to have a steady supplier of products for its distribution
operations;
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THEREFORE, in consideration of each other's promises herein and in the Asset
Purchase Agreement, JELD-WEN and Xxxxxx (together the "Parties") agree to the
following terms and conditions in this Agreement:
ARTICLE I - DEFINITIONS
1.1 Terms. The following terms shall have the following meanings:
"Products"
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1.2 Preamble Integration. The preamble hereto is hereby
incorporated into this Agreement and forms an integral part
thereof.
ARTICLE II - TERM OF AGREEMENT
2.1 Term.
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ARTICLE III - PURCHASE OBLIGATIONS
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3.5 Marketing. Xxxxxx shall use its reasonable best efforts to market
and sell the Products.
ARTICLE IV - SUPPLY OBLIGATIONS
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ARTICLE V - TERMS AND CONDITIONS OF SALES
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5.1 Xxxxxx shall pay all invoices for its purchase of Products
from the Company pursuant to the Company's communicated
standard credit terms, as they may be modified from time to
time by the Company.
5.2 Warranties. The Products shall be covered by and subject to the
Company's standard warranties. Xxxxxx undertakes and agrees that
it will not furnish to any customer or prospective customer, any
warranties, undertakings or guarantees of any nature whatsoever
which may tend to involve the responsibility or liability of the
Company, without the consent of the Company, and Xxxxxx agrees
that if it breaches this promise, it will indemnify and save the
Company harmless from any claims, demands, damages, costs or
losses whatsoever arising out of or in any way connected with such
warranties, undertakings or guarantees.
Xxxxxx agrees to honour the terms and conditions of the Company's
standard form warranty in effect on the date of sale of any such
Products by Xxxxxx, at JELD-WEN's expense, subject to obtaining
JELD-WEN's prior authorization to perform service for Products
under warranty.
ARTICLE VI - TERM AND TERMINATION
6.1 Termination Events. This Agreement shall be capable of
termination at any time by either Party forthwith upon written
notice to the other Party in the event that:
a. Assignment for Creditors. The other Party makes an
assignment for the benefit of its creditors or
admission of its inability to pay its obligations as they
become due;
b. Financial Insolvency. The other Party files a voluntary
petition in bankruptcy or any pleading seeking any
reorganization, liquidation or dissolution under any law,
or admits or fails to contest the material allegations of
any such pleading filed against it, or is adjudicated
bankrupt or insolvent or a receiver is appointed for a
substantial part of the assets of such Party or the claims
of creditors of such Party are abated or subjected to a
moratorium under any law or if execution is levied against
a substantial part of such Party's assets;
c. Assignment Without Consent. The other Party purports to
make an assignment of this Agreement without the prior
written consent of the first Party; or
d. Breach. The other Party has violated one or several
provisions of this Agreement and fails to remedy such
default within a period of 30 days of written notice
thereof from the first Party.
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6.2 Termination Effects.
a. Return of Information. Upon termination of the
relationship between the Parties, Xxxxxx agrees to
forthwith deliver to the Company all samples, pricing
information, cost information, customer information
including all copies of customer lists in the possession
of Xxxxxx, strategies, plans and such other books,
documents, record and confidential information as may have
been kept by Xxxxxx in connection with this Agreement.
Xxxxxx acknowledges and confirms that all such documents
are the exclusive property of the Company. Xxxxxx hereby
appoints JELD-WEN as its true and lawful attorney to take
possession of all such items.
Upon termination of this Agreement, any and all rights and
privileges Xxxxxx has under this Agreement shall
terminate. Upon termination of this Agreement, Xxxxxx will
immediately discontinue all uses of the Company's
trademarks and tradenames and copyrighted materials,
except those licensed by Xxxxxx to JELD-WEN, to the extent
they preserve Xxxxxx'x rights to such intellectual
property.
In the event of termination, the Company agrees to return
to Xxxxxx any information or property of Xxxxxx Products,
Ltd.'s Xxxxxx Distribution operations and any of such
operations' confidential information.
b. Remedies. The Parties acknowledges that a breach of any of
the provisions contained in this Agreement may cause a
Party great and irreparable injury and damage, which
cannot be reasonably or adequately compensated only in
damages in any action in law and hereby expressly agrees
that either Party shall be entitled to remedies of
injunction, specific performance and other equitable
relief to prevent a breach or recurrence of a breach of
this Agreement by the other Party.
6.3
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ARTICLE VII - MISCELLANEOUS PROVISIONS
7.1 Nature of Relationship. This Agreement does not constitute
Xxxxxx as an agent, employee, legal representative or attorney
of the Company for any purpose.
The status of Xxxxxx shall be that of an independent contractor
and Xxxxxx shall have no authority to assume or create any
obligation whatsoever, expressed or implied, in the name of the
Company, nor to bind the Company in any manner whatsoever.
Xxxxxx shall have no authority hereunder to enter into any
contract of sale or employment on behalf of the Company, nor to
endorse the Company's checks, nor to make allowances or
adjustments on Xxxxxx'x accounts for the return of merchandise,
except pursuant to written authorization of the Company.
7.2 No Assignment. Neither this Agreement nor any rights hereunder
shall be in any way assignable by either party either directly or
indirectly to any other person, firm or corporation without
the prior written consent of the other.
7.3 Severability. Each and every term, condition and provision of this
Agreement is and shall be severable one from the other, and in the
event that any term, condition or provision hereof is at any time
declared by a court of competent jurisdiction to be void, invalid
or unenforceable, the same shall not extend to invalidate, make
void or unenforceable any other term, condition or provision of
this Agreement.
Any such term, condition or provision shall be replaced by a term,
condition or provision which legally and economically comes
closest to the desired purpose and intent of the void, invalid or
unenforceable provision.
7.4 Notices. Any notices, designation or other communication
acquired or permitted by this Agreement shall be in writing and
shall be deemed to have been given when delivered by hand or
sent by overnight mail to the other Party, one (1) day after
being sent by overnight mail to the respective addresses as
follows:
To the Company:
Attn: Xxxx Xxxxxxxxxx
JELD-WEN, inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxx 00000
To Xxxxxx:
Attn: Xxxxx Xxxxxxxxx
Xxxxxx Products, Ltd.
000 XxXxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
or at such other address as such person may have previously
furnished in writing to the other in the manner herein-before
described.
7.5 Integration. This Agreement supersedes any prior
understandings or written or oral agreements between the
Parties respecting the within subject matter and contains
the entire understanding between the Parties with respect
thereto.
7.6 Time of the Essence. Time is hereby declared to be of the essence
of this Agreement.
7.7 Governing Law. Notwithstanding the place of agreement, the place
of performance, the place of payment or otherwise, this Agreement,
and all amendments, modifications, alterations or supplements
hereto shall be interpreted and construed according to and shall
be governed by the laws of Wisconsin which for all purposes shall
be the proper law of this Agreement.
7.8 Confidential Information. The Parties recognize and acknowledge
that their relationship with each other is based on trust and
reliance and that in the course of this Agreement, each will be
entrusted with confidential information about the other and the
other's customers as well as technology relating to the Products,
the use or disclosure of which confidential information would be
highly detrimental to the business of the other Party and its best
interests and would impair, damage or destroy the business of the
other Party.
As a result, each party agrees during the term of this Agreement
and at all times thereafter, neither the party nor any of its
owners, officers or personnel shall disclose to any third party
any information imparted to it by the other which the party knows
or has reason to believe to be a trade secret or otherwise
confidential.
Each party shall be fully responsible to the other for any
non-compliance with the provisions of this Section 7.8 by any of
party's owners, officers or personnel to the extent that
compliance by such persons is enforceable by the party under
applicable law.
Upon termination of the relationship between the Parties, the
Company agrees to forthwith deliver to Xxxxxx any documents,
information and property of Xxxxxx and any of Xxxxxx'x
confidential information. The Company hereby appoints Xxxxxx as
its true and lawful attorney to take possession of such items.
7.9 Legal Counsel and Drafting. The Parties acknowledge and agree: 1)
that each has been represented by counsel of their own choosing in
the negotiation and preparation of this Agreement; 2) that they
have read this Agreement; 3) that they have had the Agreement
fully explained to them by such counsel; and 4) that they are
fully aware of the contents and legal effect of this Agreement.
Furthermore, both Parties participated in the drafting of this
Agreement and neither shall be deemed its drafter or construed as
causing any uncertainty or ambiguity as to any of its provisions.
7.10 Amendments and Waivers. Any term or provision of this Agreement
may be waived without affecting any of the rights, conditions, or
limitations relating to the other terms and conditions of this
Agreement at any time by an instrument in writing signed by the
Party which is entitled to the benefits thereof and this Agreement
may be amended or supplemented at any time by an instrument in
writing signed by all Parties hereto.
7.11 Force Majeure. JELD-WEN shall be excused for delay in performance
or from nonperformance of this Agreement due to extreme weather
conditions, war, fire, strikes, riots, lockouts, civil commotion,
cessation or stoppage of labor, extraordinary breakdown, acts of
God, or for any other cause reasonably beyond the control of
JELD-WEN.
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In the case of a force majeure event, the Company shall give
Xxxxxx reasonably prompt notice in writing of the event.
7.12 Attorney Fees. In the event of litigation or arbitration arising
out of this Agreement or any provision of this Agreement,
including, but not limited to, the collection of monies owing
JELD-WEN for the purchase of Products, any breach of this
Agreement, the prevailing Party in any such litigation or
arbitration shall be entitled to recover its reasonable costs and
reasonable attorney fees, including fees on appeal, if any, in
addition to other relief awarded.
7.13 Waiver. Failure of either Party at any time, or from time to time,
to enforce any of the terms of this Agreement shall not be
construed to be a waiver of such term or such Party's right to
thereafter enforce each and every provision of this Agreement. No
waiver of any term or condition of this Agreement shall be
effective unless made in writing signed by the Party against whom
any such waiver is sought to be enforced.
7.14 Marks, Advertising
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7.15 No Inconsistent Actions. JELD-WEN and Xxxxxx will not voluntarily
undertake any course of action materially inconsistent with the
provisions or intent of this Agreement, and each such Party will
promptly do all acts and take all such measures as may be appropriate
to comply in all material respects, as soon as practicable, with the
terms, conditions and provisions of this Agreement.
The Parties signing below agree to all of the terms of this Agreement.
JELD-WEN, inc. Xxxxxx Products Ltd.
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx Xxxxx Xxxxxxxxx
Its Secretary Its President
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Confidential portion omitted and filed separately with the
Commission pursuant to Rule 24b-2 of the Securities Exchange Act
of 1934.
Exhibit A
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Exhibit B
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