EX-10.21



 





SUPPLY AGREEMENT



This
Supply Agreement and attached schedules (this “Agreement”), dated as of February 1,
2007, by and between PGT Industries, Inc., a Florida corporation (“PGT”), and Indalex, Inc., a
corporation (“Supplier”).





	 	1.	 	Term. This Agreement shall be effective from the date first written above
until January 31, 2009 (the “Term”). This Agreement shall be effective and supersede all
other such agreements when signed by authorized personnel for both companies.






	 	2.	 	Definitions.






	 	a)	 	“Confidentiality Agreement” shall mean that certain Confidentiality
Agreement, dated the date hereof, by and between the parties hereto, substantially
in the form attached as Schedule A.
	 
	 	b)	 	“Delivery” shall mean the point in time when Products are tendered by
Supplier, and accepted by PGT, at its Nokomis Plant or Salisbury Plant.
	 
	 	c)	 	“Price” shall mean the total transactional cost of materials with or
without freight as agreed in the FOB section.
	 
	 	d)	 	“Material Certificate” shall mean documentation confirming adherence
to material and/or performance specifications.
	 
	 	e)	 	“Material Safety Data Sheet” shall mean documentation in conformance
to OSHA requirements that shall provide detailed information on each hazardous
chemical, including its potential hazardous effects, its physical and chemical
characteristics, and recommendations for appropriate protective measures.
	 
	 	f)	 	“Nokomis Plant” shall mean PGT’s place of business located at 1070
Technology Drive, Nokomis, FL 34275.
	 
	 	g)	 	“Salisbury Plant” shall mean PGT’s place of business located at 2121
Heilig Road, Salisbury, NC 28146.
	 
	 	h)	 	“Products” shall mean goods produced by Supplier and purchased by
PGT, as contemplated by this Agreement and listed on a Purchase Order, Scheduled
Order Release, and/or Demand Planning System (“DPS”).
	 
	 	i)	 	“Specifications” shall mean specifications, drawings, requirements,
performance and/or functions, relating to the Products.




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	 	3.	 	Representations and Warranties.






	 	a)	 	Supplier represents and warrants that Products shall comply with
Specifications.
	 
	 	b)	 	Supplier warrants that Products will conform to such Specifications
and will be free from all defects in material and workmanship. Supplier shall be
responsible for the transport of non-conforming Products as reported through the
Defective Material Reporting process (“DMR”).
	 
	 	c)	 	Supplier represents and warrants that, upon transfer of ownership as
defined in the Delivery section of this Agreement, Supplier shall pass to PGT, and
PGT shall receive, good and marketable title to such Products, free and clear of
all liens, claims, security interests pledges, charges, mortgages, deeds of
trusts, options, or other encumbrances of any kind.
	 
	 	d)	 	Each party represents, warrants and covenants that: (i) it is and
shall be at all times a legal entity validly existing under the laws of its
jurisdiction with the corporate or other power to own all of its properties and
assets and to carry on its business as it is currently being conducted; (ii) it
has the corporate or other power to execute and deliver this Agreement and to
perform its obligations hereunder; (iii) its officer executing this Agreement is
duly authorized to execute and deliver this Agreement on its behalf, and no
further corporate or other proceedings are necessary with respect thereto; (iv) it
is not required, in connection with execution and delivery of this Agreement or
the performance of its obligations hereunder, to obtain the consent of any third
party; and (v) the execution and delivery of this Agreement and performance of its
obligations hereunder do not (A) violate any provision of its articles of
incorporation or by-laws or equivalent organizational documents as currently in
effect, or (B) conflict with, result in a breach of, constitute a default under
(or an event which, with notice or lapse of time or both, would constitute a
default under), accelerate the performance required by, result in the creation of
any lien upon any of its properties or assets under, or create in any party the
right to accelerate, terminate, modify, or cancel, or require any notice under,
any contract to which it is a party or by which any of its properties or assets
are bound.
	 
	 	e)	 	Each party has agreed to the terms of a Confidentiality Agreement,
the terms of which are incorporated in this Agreement, substantially in form set
forth in Schedule A.




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	 	4.	 	Pricing and Payment.






	 	a)	 	Pricing shall remain firm throughout the Term as shown on
Schedule B.
	 
	 	b)	 	Supplier agrees that if, during the term of this Agreement, it sells
or delivers material named herein of comparable quality, service and amounts to
any other customer at some price that results in a total price lower than the
Price in effect hereunder, it will offer to sell to PGT the same material at the
same terms and conditions.
	 
	 	c)	 	Invoices shall be rendered separately for each delivery and/or
purchase order and shall include PGT’s part number, quantity ordered, quantity
shipped, unit price, and extended value.
	 
	 	d)	 	No additional surcharges, packaging, loading, handling fees, or
additional charges of any kind will be paid by PGT unless specifically addressed
in Schedule or agreed to and signed by the signatories to this Agreement or duly
authorized officer.






	 	5.	 	Purchase Orders.






	 	a)	 	From time to time during the Term, PGT shall order Products from
Supplier pursuant to and in accordance with separate PGT standard purchase orders
or other related documentation (collectively, the “Purchase Orders”). Such
Purchase Orders shall specify quantities of the Product, shipping instructions,
delivery date(s), and detailed instructions for the delivery of the Goods (with
release schedules, delivery orders or equivalent notices). Each Purchase Order
executed by the parties shall be binding upon Supplier and PGT and shall be deemed
to constitute a part of this Agreement as if fully set forth herein, and all terms
and conditions of this Agreement shall be deemed to apply to the subject matter of
such Purchase Order as if fully set forth therein.
	 
	 	b)	 	Each Purchase Order issued outside of the electronic DPS shall
contain specific instructions regarding whether the shipment is to be delivered to
the Nokomis Plant or the Salisbury Plant. PGT shall provide detailed instructions
for the delivery of the Products (with release schedules, delivery orders,
Purchase Orders or equivalent notices).
	 
	 	c)	 	Supplier will confirm every Purchase Order in writing to PGT within
two business days.
	 
	 	d)	 	Supplier hereby agrees to maintain a reserve supply of raw materials
equal to one month’s consumption volume per each specification or a larger
quantity, at the Supplier’s discretion and risk, which Supplier determines




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	 	 	 	may be necessary to meet PGT’s Product requirements. PGT understands that costs
associated with inaccurate forecasts are substantial to Indalex.
	 
	 	e)	 	For planning purposes, a three-month rolling forecast will be
provided by PGT, on the 1st of each month, where the consumption
volumes will be estimated by pounds, alloys, and paint profile. Any quantity
estimates or purchase forecasts provided by PGT are for planning purposes only and
do not constitute an order for material or Products.






	 	6.	 	Delivery.






	 	a)	 	The Products shall be delivered as specified on the PGT purchase
order or as required under the DPS program.
	 
	 	b)	 	With each shipment of Products, Supplier will deliver a packing list
or an electronic Advanced Shipping Notice (“ASN”) containing the following
information:





	 	 	 	 	 	 	 
	 

	 	i.
	 	Purchase Order number
	 	 
	 
	 

	 	ii.
	 	PGT part number	 	 
	 
	 

	 	iii.
	 	 Quantity ordered/Quantity shipped	 	 







	 	c)	 	Lead time is 10 days from receipt of Purchase Order for delivery to
the Nokomis Plant and 10 days from receipt of Purchase Order for delivery to the
Salisbury Plant.
	 
	 	d)	 	Complete on-time deliveries are a critical element of this Agreement.
Supplier has demonstrated and agrees to maintain its current complete and on time
delivery performance of 95% or above. Supplier understands that costs associated
with late deliveries to PGT are substantial.
	 
	 	e)	 	Products shall be shipped F.O.B. Destination, either the Nokomis
Plant or the Salisbury Plant, and Supplier shall be responsible for all insurance
costs, freight charges and import and/or export fees, duties, demurrage, taxes,
etc. incurred on any shipment. This Agreement will apply to any purchases so
made. Title and risk of loss remain with the Supplier until Delivery.
	 
	 	f)	 	Adjustments to on hand inventory within the DPS cause unusual demand
and pressure on the system. PGT agrees to use commercially reasonable efforts to
minimize these adjustments by implementing more accurate controls.






	 	7.	 	Certification and Quality Assurance. Supplier acknowledges that PGT may ask
Supplier to participate in a Quality Assurance audit which may include, but not be limited
to, on-site Quality Assessment review, corrective action record review,




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	 	 	 	Supplier’s Quality Assurance Manual review, and/or reviewing preventative maintenance
records. Additionally, periodic supplier performance evaluations may be performed, the
purpose of which will be to assess Supplier’s quality as it relates to, among other things,
on-time deliveries, packaging, service/warranty, and non-conforming materials as reported
through PGT’s DMR Process.
	 
	 	8.	 	Defective Material. Supplier shall use all reasonable commercial efforts to
ensure quality and conformance to material and performance specifications. Supplier will
promptly issue credit for non-conforming materials at the full Price for materials
returned or for Price less scrap value on materials agreed to be scrapped locally. Scrap
value shall be based on actual expense and/or rebate incurred. Supplier shall provide
corrective action documentation to PGT on Defective Materials reported during the term of
this agreement as requested. The parties further agree to a Quality Improvement Program
as defined in Schedule.
	 
	 	9.	 	Manufacturing Alterations. Any and all modifications in composition, design,
or manufacturing process (collectively, “Modifications”) must be approved by PGT, in
writing, prior to implementation by Supplier. At its sole and absolute discretion, PGT
may require samples for testing prior to approving any such Modifications.
	 
	 	10.	 	Warranty. Supplier agrees to warrant Products against manufacturing paint
defects for the greater of: (i) a period of time equal to or greater than the warranty
period prescribed by applicable statute and governing the PGT product into which such
Products are incorporated; and (ii) 1 year from date possession of such PGT products is
taken by the end-user; and (iii) 10 years from date possession of such PGT products is
taken by the end-user where powder applied paint with 10-year was specified; or (iv)
warranty duration as stated on special custom orders. Supplier will participate ratably
in all costs associated with non-conforming products including, but not limited to,
replacement of the defective component or assembly and field service expenses to repair or
replace affected materials during the stated warranty period. Supplier agrees to warrant
Products supplied will comply with the Aluminum Association Standards for such Products.
	 
	 	11.	 	Tooling. Dies and/or back-up dies manufactured to produce PGT’s extrusions
shall be used only for providing finished goods exclusively to PGT. Designs are the
property of PGT.
	 
	 	12.	 	Indemnification.






	 	a)	 	Supplier agrees to indemnify and hold harmless PGT, along with its
employees, dealers, distributors, affiliates, and other agents (collectively,





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	 	 	 	the “Indemnified Parties”), from and against any claim asserted by any third party
for damage to that third party’s property, or for bodily injury, or both, arising
out of or in connection with Products provided by Supplier. Supplier’s obligations
to defend and indemnify shall apply regardless of whether the claim is based on
breach of warranty, breach of contract, negligence, strict liability, or any other
tort. The obligations to defend and indemnify are in addition to the obligations
Supplier already has under the terms of its warranty. The term “claim” includes,
but is not limited to, allegations, notices, lawsuits, judgments, and settlements.
It also includes an obligation on the part of Supplier to indemnify any Indemnified
party for costs, expenses, attorneys’ fees, and other costs incurred in connection
with the defense of any claim that is covered by this provision. PGT may, at its
discretion, assist with the defense and be represented by its own counsel in
connection with any such proceedings.
	 
	 	b)	 	Supplier will defend, indemnify and hold the Indemnified Parties
harmless against losses, liabilities, costs, actions, claims and other obligations
and proceedings, including but not limited to all reasonable attorney’s fees,
court costs and remedial costs incurred, that arise out of, or are in connection
with, any failure of the Products.






	 	13.	 	Termination. This Agreement may be terminated by either party in the event
that:






	 	a)	 	The other party makes a general assignment for the benefit of
creditors;
	 
	 	b)	 	The other party becomes insolvent, or voluntary or involuntary
proceedings are instituted by or against such party under any federal, state, or
other bankruptcy or insolvency laws and such proceedings are not terminated within
ninety (90) days, or a receiver is appointed for such party;
	 
	 	c)	 	The other party ceases to function as a going concern;
	 
	 	d)	 	The other party fails to perform any material provision of this
Agreement and does not cure such failure within a period of thirty (30) days after
receipt of written notice from the other party specifying such failure and stating
its intention to terminate this Agreement if such failure is not cured; or
	 
	 	e)	 	Performance of this Agreement is suspended by the other party in
accordance with Section 14 (a) below, and it appears that such performance will be
delayed for more than six (6) months.






	 	14.	 	Miscellaneous.






	 	a)	 	Force Majeure. No party to this Agreement shall be liable for
non-performance hereunder resulting from: severe weather conditions; war; riots;
civil disorder; earthquakes; any law, order, proclamation, regulation,





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	 	 	 	ordinance, demand or requirement of any governmental agency; or any other condition
or occurrence whatsoever beyond the control of such party, but only to the extent
performance hereunder is prevented by any such condition. If the performance of
this Agreement is prevented by reason of any such event, (a) the party whose
performance is prevented, shall give prompt written notice to the other party of
the event and shall be excused from performance, but only to the extent prevented;
provided, however, that the party whose performance is prevented shall take all
steps to avoid or remove such causes of nonperformance and shall continue
performance whenever and to the extent possible; and (b) if it appears that a time
for delivery or performance scheduled pursuant to this Agreement will be delayed
for more than six (6) months, the party receiving notice under subsection (a) above
shall have the right to terminate, by written notice to the other party, any
portion of this Agreement covering the prevented performance, and the obligations
and liabilities of both parties with respect to such portion of the Agreement shall
thereupon lapse and terminate, except to the extent such obligations or rights are
intended to survive pursuant to this Agreement.
	 
	 	b)	 	Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be transferred, assigned or delegated by
Supplier, in whole or in part, without the prior written consent of PGT, and any
attempt to make any such transfer, assignment or delegation without such consent
shall be null and void. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the successors, legal representatives and
permitted assigns of the Parties hereto.
	 
	 	c)	 	Contractor Status. The parties are and shall remain
independent contractors with respect to each other, and nothing in this Agreement
shall be construed to place the Parties in the relationship of partners, joint
ventures, fiduciaries or agents, nor grant any right or authority to assume or
create an obligation or responsibility, express or implied, on behalf of or in the
name of the other or bind the other in any manner whatsoever.
	 
	 	d)	 	Modification and Waiver. No modification, amendment or
waiver of any provision of this Agreement shall be valid or binding unless in
writing and executed by both of the parties. Any other purported modification,
amendment or waiver of any provision of this Agreement shall be null and void. No
waiver by either party of any breach, or the failure of either party to enforce
any of the terms and conditions of this Agreement, shall affect, limit or waive
that party’s right to enforce and compel compliance with all terms and conditions
of this Agreement, or to terminate this Agreement according to its terms.
	 
	 	e)	 	Invalidity or Illegality. In the event any provision of this
Agreement is declared to be void, invalid or unlawful by any court or tribunal of





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	 	 	 	competent jurisdiction, such provision shall be deemed severed from the remainder
of this Agreement and the balance shall remain in full force and effect. The
parties shall undertake to replace the invalid, ineffective, or unenforceable
provisions with valid, effective, and enforceable provisions, which, in their
commercial effect, approximate as closely as possible the intentions of the parties
as expressed in the invalid, ineffective, or unenforceable provisions.
	 
	 	f)	 	Notices. All notices given hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally with receipt
acknowledged or sent by registered or certified mail, if available, return receipt
requested, or by facsimile, or by recognized overnight courier for next day
delivery, addressed or sent to the Parties at the following addresses and
facsimile numbers or to such other additional address or facsimile number as any
party shall hereafter specify by notice to the other party:





	 	 	 	 	 	 	 
	 

	 	i.
	 	If to PGT, to:
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	PGT Industries, Inc.	 	 
	 

	 	 	 	1070 Technology Drive	 	 
	 

	 	 	 	Nokomis, FL 34275	 	 
	 

	 	 	 	Attention: Corporate Counsel	 	 
	 

	 	 	 	Facsimile: (941) 486-8634	 	 






	 	 	 	 	 	 	 
	 

	 	ii.
	 	If to the Supplier, to:
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Indalex, Inc.
	 	 
	 

	 	 	 	
2605 Old Oakwood Road	 	 
	 

	 	 	 	Gainesville, GA 30504	 	 
	 

	 	 	 	Attention: Vice President Sales	 	 
	 

	 	 	 	Facsimile: (770) 534-1436	 	 







	 	g)	 	Headings. Section headings contained herein are for
convenience only and shall not affect the interpretation hereof.
	 
	 	h)	 	Counterparts. The parties may execute any number of
counterparts to this Agreement, each of which shall be an original instrument, but
all of which taken together shall constitute one and the same Agreement. Signed
facsimile copies of this Agreement will bind the Parties to the same extent as
original documents.
	 
	 	i)	 	Entirety. This Agreement, which includes the recitals,
schedules, Purchase Orders, exhibits and annexes attached or subsequently
incorporated in this Agreement, constitutes the entire understanding and agreement
between the Parties regarding the subject matter set forth




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	 	 	 	herein, and supersedes all prior or contemporaneous agreements, oral or written,
made between the Parties relating such subject matter.
	 
	 	j)	 	Agreement Precedence. For their convenience, the Parties may
use, from time to time, their standard Purchase Orders, confirmations, site level
execution agreements, sales releases, delivery schedules, acknowledgments,
invoices and other similar preprinted forms. In the event of a conflict between
this Agreement and any of these documents that purport to govern the same matters
set forth herein, this Agreement shall prevail unless the other document (i) is
executed and delivered by both parties hereto in writing subsequent to the date of
this Agreement, (ii) specifically refers to this Agreement and to this Section,
and (iii) indicates that it is intended to, and shall take precedence over, this
Agreement.
	 
	 	k)	 	Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
the conflict of laws principles thereof (other than its conflict of law principles
to the extent that the application of the laws of another jurisdiction would be
required thereby). Each Party hereby waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
litigation or legal proceeding directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated hereunder.
	 
	 	l)	 	Survival Provisions. Neither the expiration nor termination
of this Agreement shall affect such of the provisions of this Agreement as
expressly provide that they will operate after any such expiration or termination.
	 
	 	m)	 	Personal Protective Equipment. Suppliers and subcontractors
must wear appropriate personal protective equipment (PPE) when visiting any of
PGT’s manufacturing facilities.
	 
	 	n)	 	Insurance. Supplier shall maintain worker’s compensation and
employer’s liability for its employees and sub-contractors, commercial general
liability insurance (including products liability), automobile liability insurance
with minimum limits of bodily injury or death, one person $1,000,000.00; each
occurrence, $1,000,000.00; property damage, each occurrence, $1,000,000.00.





[SIGNATURE PAGE FOLLOWS]






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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by persons authorized on their respective behalf, effective as of the date first set forth above.



	 	 	 	 	 	 	 
	 	 	PGT INDUSTRIES, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 

	 	Name:

Title:
	 	Mary J. Kotler

Vice President, Supply Chain	 	 






	 	 	 	 	 	 	 
	 	 	INDALEX, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 

	 	Name:
	 	Keith Burlingame	 	 
	 

	 	Title:
	 	Senior Vice President Sales &

Marketing	 	 







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