CASSETTE SUPPLY AGREEMENT
THIS CASSETTE SUPPLY AGREEMENT dated as of February , 1998 by and
between Fresh Air Solutions, L.P., a Pennsylvania limited partnership
(hereinafter referred to as the "Seller") and Engelhard HexCore, L.P., a
Delaware limited partnership (hereinafter referred to as the "Purchaser").
W I T N E S S E T H :
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser, certain Products (as hereinafter defined) for use by
Purchaser;
NOW, THEREFORE, for and in consideration of the mutual premises and the
terms and conditions hereinafter set forth, the Purchaser and the Seller, with
the intent to be bound thereby, agree to the following.
ARTICLE I - DEFINITIONS
As used herein, the following terms have the meanings ascribed to them
in this Article (except as otherwise expressly provided) and include the plural
as well as the singular:
1.1 "Agreement" or "Supply Agreement": This agreement as of the date
first above written, as the same may be amended from time to time pursuant to
the terms hereof.
1.2 "Master Agreement": The Master Agreement, dated as of November 17,
1997, by and among ICC Technologies, Inc., ICC Desiccant Technologies, Inc., ICC
Investment L.P., Engelhard Corporation, Xxxxxxxxx XX, Inc. and Engelhard/ICC, as
the same may be amended from time to time pursuant to the terms thereof.
1.3 "Order": A written request by Purchaser to Seller to supply a
specific quantity and type of Product on a requested delivery date or an oral
request by Purchaser to Seller to supply a specific quantity and type of Product
on a requested delivery date; provided, however, that any oral request is
confirmed in a writing sent by Purchaser to Seller within two (2) days of the
date of the oral request.
1.4 "Products": Cassettes (as such term is defined in the Master
Agreement) as are manufactured by Seller on the date of this agreement and
including any modifications or re-
designs within twelve months of the date of this agreement, including xxx "X",
"X", "X" and "D" platforms.
ARTICLE II - SUPPLY OF PRODUCTS
2.1 Quantity. Subject to the terms of this Agreement, Seller will sell
to Purchaser, and Purchaser will buy from Seller, Products.
2.2 Orders. Purchaser will place with Seller all Orders at least sixty
(60) days prior to the requested delivery date for such Products. Each Order
constitutes an irrevocable obligation of Purchaser to purchase from Seller the
quantity and type of Product set forth in such Order on the terms and conditions
set forth in this Agreement. In accordance with Seller's capacity and lead time
constraints, Purchaser will consolidate Orders to avoid abnormally small Orders
and will avoid requesting Seller to deliver abnormally large quantities of
Product in any Order, and, in any event, Seller will not be required to fill any
Order to the extent it exceeds Seller's capacity, after taking into account
internal production requirements or lead times.
2.3 Price; Payment. The price, payment procedures and invoicing for
Products are as set forth on Schedule A hereto.
2.4 Warranty. (a) Seller agrees that the Products manufactured by the
Seller shall be free from defects in material and workmanship for one year from
the date of original installation of a Climate Control System containing a
Product or eighteen (18) months from the date of shipment from Seller's factory,
whichever may first occur under normal use and service and when properly
installed, and its obligation is limited solely to repair or replace or refund
the purchase price at Seller's option, at Seller's factories, or any part or
parts proven to be defective or non-conforming, returned to Seller with
transportation charges prepaid, which Seller's examination shall disclose to its
satisfaction to have been defective or non-conforming. THIS WARRANTY IS
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND IS IN LIEU OF AND IN
DISCLAIMER AND EXCLUSIVE OF ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL OTHER IMPLIED WARRANTIES, IN
LAW OR EQUITY, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON OUR PART. THERE ARE
NO WARRANTIES WHICH EXTEND BEYOND DESCRIPTION HEREOF. Seller neither assumes nor
authorizes any person to assume for Seller any liability or obligation in
connection with the sale of its Products, except said
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repair or replacement of the defective part as set forth above. Seller's
liability does not include any labor charges for the replacement of parts,
adjustments, repairs or other work done outside its factories. Seller's
liability does not include any consequential or resulting damage to person,
property, equipment, goods, merchandise, profits, good will or reputation
arising out of any defect in or failure of its Products. Seller's obligation to
repair or replace shall not apply to Products altered outside its factory in any
way, or which have been subject to negligence or to misuse. On parts not its
manufacture, such as motors, controls, etc., Seller extends only the same
warranties given to the Seller. Seller's agreement hereunder runs only to the
immediate purchasers and does not extend, expressly or by implications, to any
other person. Nothing in the above warranty provisions, however, shall impose
liability or obligation of any type, nature or description upon Seller if Seller
has not received payment in full for the Product in question.
Where the non-conforming Product is replaced by Seller or where Seller
refunds the sales price received from Purchaser for such Product, Purchaser
shall return the non-conforming Product to Seller strictly in accordance with
Seller's written instructions concerning handling, shipping, insurance, mode of
transportation, and other matters as to which Seller issues instructions. In no
event shall Seller be liable for: (1) Products damaged in shipment or otherwise
without fault of Seller; (2) defects in Products due to negligence (other than
that of Seller), accident, abuse, improper care or storage, abnormal condition
of temperature or moisture; (3) damage to Products which have been tampered with
or altered in any way other than by Seller; or (4) expenses incurred by
Purchaser in attempting to correct any defects in Products.
(b) Seller additionally warrants that in the manufacture of Products it
complies with all applicable requirements of Sections 6, 7 and 12 of the Fair
Labor Standards Act as amended and the regulations and orders of the United
States Department of Labor issued under Section 14 thereof.
(c) Seller warrants to Purchaser that any Product sold by Seller to
Purchaser hereunder will not infringe the claim of any U.S. patent owned by a
third party covering the Product itself and agrees to indemnify the Company
against liability for any alleged infringement; provided, however, that
Purchaser shall notify Seller within ten (10) days after receipt by Purchaser of
any such claim of alleged infringement or any notice of commencement of any suit
based on such alleged
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infringement, and provided further, that Seller shall control and remain in
control of any and all proceedings taken in defending such suit, including
without limitation utilization solely of counsel of Seller's own selection to
defend such suit. Seller does not warrant against infringement by reason of use
of any Product by Purchaser in combination with other materials or in the
operation of any process.
(d) Recommendations by Seller, if any, covering the utilization,
properties or qualities of Products delivered hereunder or with respect to
services performed are believed reliable but Seller makes no warranty whatever
with respect thereto. Subject to the other terms of this agreement, use or
application of the Products sold by Purchaser to the Company hereunder is at the
discretion of Purchaser without any liability or obligation on the part of
Purchaser.
(e) THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM, INCLUDING BUT NOT BY
WAY OF LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
2.5 Delivery. All Products supplied hereunder will be delivered and all
risk of loss and damage and title to Products will pass to the Purchaser F.O.B.
Seller's manufacturing site, Hatboro, Pennsylvania or any other location
specified by Seller in the continental United States, with markings and
packaging as defined in Schedule B hereto.
ARTICLE III - GENERAL
3.1 Notifications. Any notice which either party may be required or
desires to give to the other party hereunder, except when otherwise provided
for, shall be deemed to be duly given: (i) when mailed by registered or
certified mail, postage prepaid to the other party at the following addresses or
any other address of addressee subsequently designated in writing by the duly
authorized representative of the party or (ii) when sent by facsimile to the
other party at the following telephone numbers or to any other telephone number
subsequently designated in writing by the respective duly authorized
representative of the party:
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To Seller: Fresh Air Solutions, L.P.
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chairman
To Purchaser: Engelhard HexCore, L.P.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention:
with a copy to: General Counsel at:
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
3.2 Term. This Agreement shall become effective as of the date hereof
and shall continue thereafter for an initial term expiring on February , 2002.
3.3 Termination for Breach. If either party is in material breach of
this Agreement, then the other party may, upon at least sixty (60) days' prior
written notice, terminate this Agreement, unless within such notice period the
breach is cured, in which event the notice of termination becomes ineffective.
3.4 Limitation of Liability. Notwithstanding anything to the contrary
in this Agreement or otherwise, in no event shall Seller be liable for indirect,
incidental, consequential or special damages incurred by Purchaser or any third
party arising out of or relating to this Agreement or any transactions hereunder
even if Seller has been apprised of or is aware of the possibility of such
damages. In no event shall the aggregate liability of Seller to Purchaser and
all third parties arising out of or relating to any supply of Products or the
transactions contemplated hereunder exceed the purchase price paid by Purchaser
with respect to the Products in respect of which such claim is made.
3.5 Force Majeure. Any delay in or failure of performance or delivery
by Seller shall not constitute a breach of or default under this Agreement or
give rise to any claims for damages if and to the extent caused, directly or
indirectly, by acts of God, acts of Purchaser, acts, rules or regulations of
governmental authority (civil or military, executive, legislative, judicial or
otherwise), strikes or other concerted acts of workers, lockout, labor
difficulties, fires, floods, storms, accidents, earthquakes, tidal waves or
other natural disasters,
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epidemics, war, riots, rebellions, sabotage, insurrection, difficulties or
delays in public transportation or in public or postal delivery services, car
shortages, fuel shortages, inability to obtain from usual sources of supply,
inability to obtain suitable or sufficient energy, labor, machinery, facilities,
supplies or materials as and when required, failure of any third party to honor
its contractual commitment or any other circumstances beyond Seller's reasonable
control, whether of a similar or dissimilar nature. Upon the occurrence of any
of the circumstances described in the foregoing sentence, Seller shall have no
obligation whatsoever to make any allocation of its available production,
deliveries, services, raw materials and resources, but may at its option elect
to allocate its available production, deliveries, services, raw materials or
other resources among any and all purchasers as well as departments, divisions,
subsidiaries and affiliates of Seller upon such basis as Seller, in its sole
discretion, may determine without liability whatsoever for any failure of
performance which may result therefrom.
3.6 Assignment. Purchaser shall have no right to transfer or assign its
interest or rights in this Agreement or delegate its obligations under this
Agreement without the prior written consent of Seller; provided, however, that
in connection with any direct or indirect sale, transfer or other disposition,
whether in one or a series of transactions, of the property or assets of
Purchaser, the surviving or resulting entities of such transaction shall assume,
as a co-obligor with Purchaser and as a condition to the effectiveness of any
such transaction, the obligations of Purchaser hereunder; and provided, further,
that in connection with any direct or indirect sale, transfer or other
disposition, whether in one or a series of transactions, of the property or
assets of Seller, the surviving or resulting entities of such transaction shall
assume, as co-obligor with Seller and as a condition to the effectiveness of any
such transaction, the obligations of Seller hereunder.
3.7 Severability. If any provisions of this Agreement or the
application of such provision to any party or circumstance shall be held invalid
the remainder of this Agreement or the application of such provision to a
different party or circumstance shall not be affected thereby; provided,
however, that the parties shall negotiate in good faith with respect to any
equitable modification of the provision or application thereof held to be
invalid.
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3.8 Construction. Article and Section headings are for convenience of
reference only and shall not affect the interpretation of any of the provisions
of this Agreement. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any third party.
3.9 Entire Agreement; Amendments. This Agreement, together with the
Master Agreement and the Transaction Documents and Related Agreements (each as
defined in the Master Agreement), contains the entire understanding between the
parties with respect to the within subject matter and shall be controlling to
the exclusion of all terms and conditions on any purchase order, acknowledgment
form or any other documents which may be issued by the parties hereto on or
after the date hereof. This Agreement may not be modified or amended except in a
writing signed by the parties hereto. No waiver or indulgence of any breach or
default hereunder shall be construed as a waiver of any subsequent breach of the
same or any other provision of this Agreement.
3.10 Prior Agreements. This Agreement cancels and supersedes all other
written or verbal agreements which may have been in effect prior to this
Agreement relating to the within subject matter.
3.11 Jurisdiction. The parties hereto agree that all of the provisions
of this Agreement and any question concerning its interpretation and enforcement
shall be governed by the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their duly authorized representatives, as of the date first above
written.
FRESH AIR SOLUTIONS, X.X. XXXXXXXXX HEXCORE, L.P.
By its General Partner By its General Partner
ICC DESICCANT TECHNOLOGIES, INC. XXXXXXXXX XX, INC.
By: ---------------------------- By: ----------------------------
Name: Name:
Title: Title:
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