This Market Alliance Agreement
("Agreement") is hereby entered into as of February 27,
2009,
(hereinafter the “Effective
Date”) by and between
E. I. du Pont de Nemours and
Company,
through its Packaging &
Industrial Polymers business,
Barley Mill Plaza Building
26
Wilmington, Delaware
1988)
(hereinafter known as
“DuPont” or “Seller”)
and PGT Industries, Inc.
(hereinafter known as “PGT” or
“Buyer")
of 1070 Technology Drive, Nokomis,
FL 34275
DuPont and
Buyer are hereinafter collectively referred to as the
“Parties” and individually as a
“Party.” Intending to be legally bound,
Buyer agrees to purchase from DuPont and DuPont agrees to sell to
Buyer pursuant to the following conditions:
1.
DEFINITIONS. The Parties agree that following terms shall
have the meanings ascribed below:
“Product” – means SentryGlas® Plus, ionoplast
structural interlayer produced by DuPont and sold pursuant to this
Agreement.
“Total Interlayer”
– means rolls or sheets of
polyvinyl butyral produced by any entity (including DuPont) and
ionoplast structural interlayer produced by DuPont.
“Material Obligations”
mean Buyer’s obligations
specifically described on Attachment F.
2.
SCOPE.
The
Parties agree and acknowledge that the sale of Product to Buyer
pursuant to this Agreement is strictly for usage and production at
its glass laminating facilities within the United
States. The Parties also agree to review the Material
Obligations on a quarterly basis.
3.
PRODUCTS/QUANTITY. DuPont shall sell and Buyer shall purchase the
following minimum amounts of Product in accordance with the terms
and conditions of this Agreement. Buyer intends to buy
its Product from DuPont in accordance with the volumes stated in
the tables below :
|
Quarter
|
Product Purchases as % of
Buyer’s Total Interlayer Purchase
(90 mil square foot
equivalent)
|
|
1Q09
|
13%
|
|
2Q09
|
13%
|
|
3Q09
|
18%
|
|
4Q09
|
22%
|
|
Year 1
|
17%
|
|
Year
|
Product Purchases as % Buyer’s
of Total Interlayer Purchase
(90 mil square foot
equivalent)
|
|
2009
|
17%
|
|
2010
|
25%
|
|
2011
|
35%
|
At
DuPont’s sole discretion, Buyer’s purchase requirement
obligations may be audited by DuPont or a mutually agreeable third
party. If Buyer fails to purchase the minimum annual
amounts set forth above for any year during the Term of this
Agreement, Buyer shall pay DuPont a shortfall payment calculated as
follows (hereinafter, “Shortfall Payment”):
{[( Minimum
% of Total Interlayer Purchase for the corresponding year )
minus (actual% of Total Interlayer Purchase) divided by 100]
multiplied by Total Interlayer in square feet purchased by Buyer
for the corresponding year )} = Shortfall
Shortfall multiplied by $0.15 = Shortfall
Payment
($3.00/ft2 x
5% discount = $0.15/ft2)
June 30-December 31, 2009, 2010 & 2011
Shortfall multiplied by $.45 = Shortfall Payment
($3.00/ft2 x
15% discount = $0.45/ft2)
[e.g., If Buyer
purchased 23% of total interlayer purchases instead of 25% in 2010
and the total interlayer purchase was 1,000,000 square feet, the
Shortfall would be 20,000 square feet and the Shortfall Payment to
DuPont would be $9000]
The Shortfall
Payment shall be due and payable each year for the preceding year
no later than January 30.
(a) This Agreement shall be
effective three years from the date first above written
(hereinafter “the Term”). At the end of the
Term, this Agreement may continue month to month until either party
provides the other thirty (30) days written notice.
(b) In the event either party defaults because
of failure to meet a material obligation hereunder, the
non-defaulting party will provide the other party thirty (30) days
written notice and an opportunity to cure such default; if the
default is not cured within sixty (60) days, the Parties shall
refer the dispute to an upper management representative from both
Parties for good faith resolution. Should ninety (90)
days elapse after the initial default notice date and the default
still has not been cured, the non-defaulting party may terminate
this Agreement,
5. PRICE.
Buyer shall pay DuPont the prices
listed in Attachment B for the Products it purchases from
DuPont.
6. EXTENDED
WARRANTY. DuPont agrees for the product purchased
during the term to provide Buyer the extended warranty package
described in Attachment C provided however, Buyer meets the
following criteria and requirements: (i) Buyer will fulfill DuPont
Warranty Qualification requirements detailed in Attachment E, (ii)
Buyer shall provide full pass through warranty benefits to
Buyer’s customers and (iii) Buyer shall comply with DuPont
Branding and Trademark License detailed in Attachment D.
7. BRANDING
AND TRADEMARK LICENSE. In further consideration for
enterin
