EXHIBIT 10(X)
SALES AGREEMENT
DATE: December 1, 1995
1. PARTIES
SELLER: GS ROOFING PRODUCTS CO., INC.
5525 MacArthur Blvd., Suite 900
Irving, Texas 75038
BUYER: BIRD INC.
1077 Pleasant Street
Norwood, MA 02062
2. PRODUCT 2.0# CSF & 2.2# CSF GLASS MAT per attached Specifications and
Agreement, in widths of 59-7/8, 61-7/8 and 36 inches
ANNUAL QTY: Sixty percent (60%) of Buyers annual requirements,
estimated to be approximately 3.9 mm squares
FOB POINT: Seller's plant, Charleston, SC
SHIPMENT: Rail car loads as arranged by Seller
PRICE: 2.0# csf $1.34/csf Freight delivered & prepaid
2.2# csf $1.40/csf Freight delivered & prepaid
Through March 31, 1996
Subject to a maximum 5% increase April 1, 1996 or
thereafter if prices are increased by alternate
competitive supplier
TERMS: 1% 10th Prox Net 30th prox. on shipments prior to the
25th of the month for determination of due dates.
Discount applies to material only and does not apply
to freight costs.
3. PERIOD. The period of this Agreement will begin on January 1, 1996 and
end on December 31, 1996.
4. QUANTITY. During this Agreement period, Buyer will purchase the specified
Annual Quantity in approximately equal monthly quantities. Orders will be faxed
to Seller's facility in Charleston, SC by the 15th of each month for the
following month's requirements.
5. SHIPMENTS. Seller shall arrange for the carrier and shall be entitled to
utilize the Buyer's contract rates from the CSXT Railroad of $1795/car (50' &
60'). Buyer will unload each shipment at its own risk and expense, including any
demurrage or detention charges at destination. Shipper will be responsible for
all risk and expense, including demurrage at the loading facility. If Seller is
unable, after normal and reasonable efforts, to secure wide door cars, and Buyer
is unable to reasonably delay shipment until such cars are available, then
Seller will be required to provide delivery by truck, at the Sellers expense.
6. WARRANTIES. Seller warrant that Product will meet the "PURCHASE SPECIFICATION
FOR GLASS MAT," as clarified by the summary of understanding titled "1996 BIRD
ROOFING MAT SUPPLY PROGRAM,' copy attached. Seller MAKES NO OTHER REPRESENTATION
OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING
WITHOUT LIMITATION THE WARRANTY OF MERCHANT ABILITY OR THE WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, OTHER THAN THE LIMITED WARRANTY SET FORTH ABOVE.
7. REMEDIES. If buyer fails to pay any indebtedness to Seller, Seller may, in
addition to any other remedies, suspend shipments, change terms of payment or
terminate this Agreement by notice to the Buyer. Buyer's obligation to perform
will not be limited by any previous waiver by Seller. Product which fails to
meet specifications will be returned to the Seller at the Sellers expense.
8. NOTICES. Notice by either Seller or Buyer will be made only by letter or
facsimile addressed to the other part at this address in Article 1 and will be
considered given as of the time it is deposited with the U.S. Postal Service or
acknowledged as received by the other Party's facsimile machine.
9. GOVERNING LAW. This Agreement will be interpreted and the rights,
obligations, and liabilities of the Parties determined in accordance with the
laws of the State of New York.
10. PRICE AND PAYMENT TERMS. Price shall be in accordance with Article 2 above.
If Seller is prevented by law, regulation or governmental action from continuing
any price in effect under this Agreement, Seller may terminate this Agreement on
thirty (30) days' notice. Buyer will be obligated to provide immediate written
notice to Seller if and when the suppler or suppliers of Buyer's balance of
requirements increase prices to Buyer. Seller will be permitted to increase
prices at a comparable level, effective on the date of such other competitor's
increase. The 1% 10th prox Net 30th prox Terms under this Agreement are the
result of meeting competitive conditions outlined by the Buyer. Buyer shall keep
in full force and effect a $300,000 letter of credit in favor of the Seller.
Seller shall review with reasonableness the financial condition of the Buyer on
or before July 1, 1996 to determine the need to continue such letter of credit.
11. EXCUSES FOR NO PERFORMANCE. Either Seller or Buyer will be excused from the
obligations of this Agreement to the extent that performance is delayed or
prevented by any circumstance (except financial) reasonably beyond its control
or by fire, explosion, mechanical breakdown, strikes or other labor trouble,
plant shutdown, unavailability of or interference with the usual means of
transporting the Product or compliance with any law, regulation, order,
recommendation or request of any governmental authority. In addition, Seller
will be so excused in the event it is unable to acquire from its usual source
and on terms it deems to be reasonable, any material necessary for manufacturing
the Product. If, because of such circumstances, there should be a shortage of
Product from the Seller, Seller will not be obligated to purchase products in
order to perform this Agreement and may apportion its available Product among it
internal needs and the Buyer's needs based upon the prior year sales, upon a
prorated share of available Product. Quantities of Product
consequently not shipped will be deducted from the applicable remaining quantity
obligation unless the Parties agree otherwise.
12. SAFETY AND HEALTH COMMUNICATIONS. Seller will furnish to Buy Material Safety
Data Sheets which include health, safety and other hazard communication
information on Product consistent with the Occupational Safety and Health
administration's hazard Communications Standard. Seller will also furnish other
health or safety information as available. Buyer will disseminate appropriate
health and safety information to all persons Buyer foresees may be exposed to
Product (including but not limited to Buyer's employees, contractors and
customers).
13. LIABILITIES-CLAIMS-INDEMNIFICATION. Buyer shall indemnify and hold the
Seller harmless for any claim, loss or expense on account of any injury, disease
or death of persons or damage to property arising directly out of use of the
Product. These indemnity obligations of Buyer will survive termination of this
Contract. Neither Seller nor Buyer will have any liability to the other for any
claim (except for Indebtedness of Buyer to Seller) arising out of or in
connection with this Agreement unless claimant gives the other Party notice of
the claim, setting forth fully the facts on which it is based, within sixty (60)
days of the date such facts were discovered or reasonably should have been
discovered. Except as elsewhere herein provided, Seller's liability for
defective or nonconforming Product will not exceed the purchase price and
inbound freight costs of the Product involved in the claim and NEITHER PARTY
WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
14. ENTIRETY AND RELEASE. This Agreement, as of the beginning date of it Period,
contains the complete and exclusive agreement of Seller and Buyer concerning the
Product identified in Article 2, merges and supersedes all prior understandings
and representations (oral or written) and terminates all prior contracts between
Seller and Buyer concerning the same product. Except for any indebtedness or
indemnity obligation of Buyer to Seller, each releases the other from all claims
arising in connection with any such prior contract, except as herein provided.
Neither this Agreement nor any agreement supplementing or amending this
Agreement (including any purchase order or other document issued by Buyer) will
be binding unless signed by the Parties, and performance prior to such execution
will not constitute a waiver of this requirement.
15. FURTHER LIMITATIONS. No action by the Buyer arising out of the Agreement
shall commence later than sixty (60) days after the cause of action has
occurred.
16. CONSIDERATIONS. Section deleted.
17. AMENDMENTS. No alteration, modification or change of this Agreement shall be
valid except by an agreement in writing executed by the parties hereto.
18. OTHER PROVISIONS. (Attach additional page(s) Exhibits etc).
GS ROOFING PRODUCTS COMPANY, INC.
BY:______________________________
Thomas Gruss
Date 3/15/96
BIRD ROOFING DIVISION
BY:______________________________
R.C. Maloof
Date 12/5/95