EXHIBIT 10.28
Confidential portions of this document indicated by ***** have been omitted and
filed separately with the Commission
INDALEX
FIXED-PRICE PURCHASE AND SALE AGREEMENT
This Agreement ("Agreement") dated this 16th day of August 2002, is between
Indalex, Inc. ("Seller") and ("Buyer") Featherlite Manufacturing.
Seller desires to sell certain goods to Buyer and Buyer desires to purchase
certain goods from Seller. Now Therefore, in consideration of these premises and
the following mutual agreements, the parties agree as follows:
1. Seller will sell to Buyer, and Buyer will purchase from Seller,
the aluminum extrusions identified on Schedule A attached hereto
("Product"), subject to the terms contained in this Agreement and
the attached Schedule A. The quantity, delivery dates, terms, and
prices for product are also set forth on Schedule A.
2. This Agreement shall have a term from the date hereof to October
31st, 2002. This Agreement may not be cancelled by either party
prior to the termination date without the prior written consent
of the other. Buyer acknowledges that Seller intends to rely on
this Agreement in fixing the prices and delivery dates of its raw
material purchases necessary to fulfill this Agreement and as
such, Buyer agrees to pay for the quantity specified on Schedule
A. If Buyer cancels this agreement, or otherwise refuses
shipments hereunder, Seller is entitled to recover any loss
sustained from liquidating a metal position taken by the Seller
on behalf of Buyer.
3. The pricing in this proposal is subject to Seller's ability to
hedge the transaction. Seller will provide confirmation of the
hedge immediately upon execution.
4. Seller's obligations are subject to Seller's credit approval with
respect to each shipment to Buyer. Payment terms for the Product
shall be as set forth in Schedule A. Seller's obligation to
continue shipments of product is conditioned upon Buyer
satisfying its payment obligations in full within the time period
specified.
5. Either party's failure, at any time or times hereafter, to
require strict performance by the other party of any provision of
this Agreement shall not constitute a waiver, or affect or
diminish the right thereafter to demand strict compliance and
performance of this Agreement.
6. This Agreement (including Schedule A) shall constitute the entire
agreement between the parties with respect to the Fixed Price
Purchase and Sale Agreement. Except as specified in this
Agreement, the terms of sale and rights of the parties with
respect to any specific order shall be as set forth in Seller's
order acknowledgment as provided from time to time.
7. Seller shall not be liable for any defaults, damages, or delays
in filling any order caused by conditions beyond Seller's
control; including, but not limited to, acts of God, strike,
lockout, boycott, or other labor troubles, war, riot, flood, new
government regulation, terrorist acts or delays of Seller's
suppliers or subcontractors in furnishing materials or supplies
due to one or more of the foregoing or like causes.
8. This Agreement is extended to subsidiaries and affiliates of the
parties.
9. All of the terms of this Agreement will be binding upon, inure to
the benefit of and be enforceable by and against the successors
and authorized assigns of Buyer and Seller.
10. Except as otherwise expressly provided in this Agreement, nothing
in this Agreement, express or implied is intended to confer upon
any other person or entity any rights or remedies under or by
reason of this Agreement, this Agreement being for the exclusive
benefit of the parties and their respective successors and
assigns.
11. Neither party will assign any of its respective rights or
obligations under this Agreement to any other person without
prior written consent of the other party, which consent will not
be unreasonably withheld.
12. This Agreement shall be governed and interpreted in accordance
with the laws of the State or the Province where the address of
Seller is located as stated on the face of this Agreement
Buyer: Featherlite Manufacturing Seller: Indalex, Inc
Signed by Craig Lepa on behalf of Gary Ihrke Signed by Patrick Wooley
8/16/02 8/16/02
SCHEDULE A
FIXED-PRICE PURCHASE AND SALE AGREEMENT
A1. MATERIAL DESCRIPTION: This agreement covers standard extrusions currently
being supplied or quoted to Featherlite Manufacturing ("Buyer") by Indalex, Inc.
("Seller") with specific pound / pieces / feet by specific shape to be supplied
by Buyer.
A2. DELIVERY PERIOD: Start Date: January 1st, 2003 Finish Date: March 31st, 2003
A3. PRICE: ***** per pound of aluminum plus an additional ***** per pound for
Solids and ***** per pound for Hollows
A4. QUANTITY: Table A: Monthly Quantities (x000Lbs)
1 2 3 4 5 6 7 8 9 10 11 12 Total
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Jan. Feb. Mar Apr. May June July Aug Sept Oct. Nov. Dec 3
- -----------------------------------------------------------------------------------------------------------
# # # #
lbs lbs lbs lbs
- -----------------------------------------------------------------------------------------------------------
This quantity of aluminum extrusions to be sold under the agreement, as set
forth in Table A above, may not be altered without the express written consent
of Seller and Buyer. Buyer expressly acknowledges that this is a firm,
non-cancelable take or pay agreement.
In the event that Buyer does not take the commitment each month as defined in
Table A, Buyer will reimburse Seller for any losses incurred. All monthly losses
will be settled by the end of the following month unless alternative
arrangements are mutually agreed upon by Seller and Buyer in writing.
The purchase price for extrusions purchased in excess of the pounds each month
as defined in Schedule A are to be based on the contract price adjusted up or
down for the change in published average Mid-West Transaction Price for P1020.
The difference will be calculated by taking the difference between the average
Mid-West Transaction Price for the month prior to shipment and subtracting the
base Midwest metal price of this Fixed Price Purchase and Sale Agreement.
A5. PAYMENT TERMS: Payment in full within thirty (30) days from date of
shipment.
A6. TOTAL DOLLAR VALUE OF CONTRACT: Approximately: *****
A7. GOOD TO CALL ("GTC") CONTRACT: No: __ Yes: X U If yes, Expiration Date:
10/31/02
If this is a GTC, and if the metal cannot be secured at the price indicated in
A3, by the expiration date, this contract becomes null and void. If the metal
can be secured by the expiration date, the customer will be notified in writing
that the metal has been secured.
A8. CONFIRMATION OF HEDGE
Buyer: Featherlite Manufacturing Seller: Indalex, Inc
Signed by Craig Lepa on behalf of Gary Ihrke Signed by David MacHaffey
8/16/02 8/29/02