TERMINAL PRODUCTS MANUFACTURING AGREEMENT
THIS TERMINAL PRODUCTS MANUFACTURING AGREEMENT (this
"Agreement") is made as of December 22, 1999, by and among
Warner Power, LLC, a New Hampshire limited liability company
("Supplier"), WPI Group, Inc., a New Hampshire corporation and
WPI Oyster Termiflex, Inc., a New Hampshire corporation
(collectively referred to as "Customer"). WITNESSETH:
WHEREAS, Supplier and WPI Group, Inc. are parties to the
Asset Purchase Agreement dated December 22, 1999 whereby
Supplier purchased certain of the assets and assumed certain
liabilities of WPI Group, Inc. and WPI Power Systems, Inc. and
WPI Electronics, Inc., which are wholly-owned subsidiaries of
WPI Group, Inc. (the "Asset Purchase Agreement");
WHEREAS, as part of the Asset Purchase Agreement,
Supplier has purchased certain terminal products inventory
(the "Initial Terminal Products Inventory") which WPI Group,
Inc. has agreed to purchase for use by its wholly-owned
subsidiary WPI Oyster Termiflex, Inc. pursuant to the terms of
this Agreement;
WHEREAS, Supplier will also sell to Customer, and
Customer agrees to purchase from Supplier, fully assembled,
tested and packaged terminal products manufactured by Supplier
in accordance with the specifications and definitions provided
to Supplier by Customer pursuant to this Agreement and as set
forth on Attachment A (which along with the Initial Terminal
Products Inventory are referred to as the "Goods"); and
WHEREAS, subject to the foregoing, the Supplier desires
to sell and Customer desires to purchase the Goods on the
terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Term of Agreement
1.1 The term of the agreement shall be three (3) years from
the date set forth in the preamble (the "Term").
1.2 At the expiration of the Term, the Supplier shall have
the right (along with such other parties as Customer may
select) to bid on a manufacturing agreement on such terms as
Customer may specify.
1.3 This Agreement may not be terminated by Customer during
the Term, except as otherwise provided for herein.
1.4 Upon expiration or termination of the Agreement, the
Supplier shall complete any outstanding purchase orders which
purchase orders shall be honored by the Customer.
2. Sole Supplier of Goods
2.1 The Supplier shall be the sole supplier of the Goods.
3. Forecasting and Ordering
3.1 Orders will be placed in accordance with the procedures
in Attachment B, which Attachment may be amended from time to
time by mutual written agreement of the parties.
3.2 The Customer will cover the cost of purchase of all
components procured by the Supplier in accordance with:
3.2.1 Firm orders placed by the Customer.
3.2.2 Any other cover that may be agreed formally by the
Customer and the Supplier to meet unanticipated demand,
including but not limited to the finished, tested PCB's.
3.2.3 The cover of any components that, by virtue of long
procurement lead times are outside the period covered by
formal purchase order instruction or three (3) month forecast,
that have been identified as such and with the written
agreement of the Customer.
3.3 For the avoidance of doubt, the Customer agrees to pay
for the cost of components as set forth in Section 3.2 in the
event that any such orders are cancelled. Supplier shall, to
the extent possible, repurchase any such components for use in
future orders. In addition, Supplier shall utilize such
portions of the Initial Terminal Products Inventory, to the
extent possible, before purchasing inventory for firm orders.
4. Delivery
4.1 Unless specifically agreed in writing the lead time from
receipt of order to delivery of the Goods to the Customer
shall be in accordance with Section 6.1.1 of Attachment B.
4.2 Where circumstances are such that a delivery cannot be
made within the lead-time specified and agreed in Section
6.1.1 of Attachment B, the Supplier shall advise the Customer
in writing to that effect within a reasonable period of time
after learning delivery cannot be made at such time. Supplier
shall use commercially reasonable efforts to expedite delivery
if it is unable to make the specified lead-time.
4.3 Deliveries shall be made in accordance with Sections
6.1.4-6.1.9 of Attachment B.
4.4 Notwithstanding anything in this Agreement, at a minimum,
Customer agrees to purchase from Supplier, and Supplier agrees
to sell to Customer, the entire quantity of the Initial
Terminal Products Inventory during the 1st year of this
Agreement. Exhibit 4.4 sets forth the Initial Terminal
Products Inventory and the procedure for calculating a
schedule of delivery of and payment for the Initial Terminal
Products Inventory.
5. Pricing and Invoicing
5.1 Supplier and Customer agree to prices based upon the
ultimate selling price that the Customer charges to their
customers for each order, and as detailed in Exhibit 5.1.
All information pertaining to the calculation of the quoted
prices shall be held available for audit by the Supplier. Such
audits may take place no more than once each quarter. The
Supplier shall conduct such audits during normal business
hours and upon no less than 5 days notice to the Customer.
All parties participating in such audit will be bound by a
confidentiality agreement, the form of which shall be agreed
and executed prior to each audit.
5.2 Where the Supplier can demonstrate that additional costs
have been incurred: (i) due to extraordinary fluctuations in
component prices due to unforeseen world wide shortages of
components, (ii) due to minimum quantity purchase
requirements, or (iii) due to purchase of components inside
agreed lead times at the Customer's request; then the Supplier
may request a formal price review by the Customer.
Where such circumstances prevail, the Supplier shall, as soon
as practicable, advise the Customer in writing to that effect,
giving the amount of any such price amendment, ascertained and
determined at the same method of pricing as that contained in
the original and agreed quotation.
The Customer shall consider such request in good faith. In
the event that Customer and Supplier cannot reach a mutually
agreeable price amendment in a reasonable period of time, then
either party may request that the matter be resolved at the
senior executive level. In such event, the Chief Executive
Officer or Chief Operating Officer of the Customer and
Supplier shall negotiate in good faith to reach a mutually
agreeable price amendment.
6. Non-Warranty Repairs
6.1 Supplier shall provide all Customer non-warranty terminal
product repairs.
6.2 Supplier shall invoice for non-warranty repair orders in
conformance with the price list and procedures as set forth on
Exhibit 6.2, which price list and procedures shall be reviewed
annually and may be revised by mutual written agreement of
Customer and Supplier. The parties shall handle the non-
warranty repairs as handled by the Customer and WPI
Electronics, Inc. prior to the date of this Agreement. The
Customer has the right at any time to direct the Supplier to
cease dealing with Customer's clients and Customer shall
assume responsibility for billing its clients. In such event,
the Supplier shall bill Customer directly in an amount equal
to eighty per cent (80%) of the prices set forth on Schedule 6.2.
7. Passing of Property and Risk to the Customer
7.1 The Goods shall be shipped by Supplier F.O.B. Supplier's
manufacturing facility which is presently in Warner, New Hampshire.
7.2 The property and risk in Free Issue Material (as defined
below) shall remain with the Customer
8. Acceptance
8.1 The Customer may not reject any Goods which were included
in the Initial Terminal Products Inventory which have not been
altered by Supplier after the effective date of this
Agreement. In the case of Goods in excess of the Initial
Terminal Products Inventory shipped by the Supplier that do
not conform to this Agreement, whether by reason of failure to
meet the Customer's Specification, quality issues or by reason
of over quantities shipment, the Customer shall have the right
to reject such Goods within fourteen (14) days of their delivery.
8.2 Payment shall not prejudice the Customer's right of rejection.
9. Engineering Change Requests ("ECR")
9.1 The Supplier shall not alter any of the Goods except as
directed in writing by the Customer but the Customer shall
have the right, from time to time during the Term, by notice
in writing to direct the Supplier to add or to omit, or
otherwise vary, the Goods. The Supplier shall carry out such
variations and be bound by the same conditions, so far as is
applicable, as though the variations were stated in the Agreement.
9.2 Where the Supplier receives any such direction from the
Customer which would occasion an amendment to the formula
price set forth in section 5, the Supplier shall, as soon as
practicable, and before implementing such ECR advise the
Customer in writing to that effect, giving the amount of any
such price change, ascertained and determined at the same
method of pricing as that contained in the original and agreed
quotation. The Supplier shall submit such statement to the
Customer in the form attached as Attachment C. The parties
shall negotiate in good faith to reach agreement on the
amendment to the formula price. The parties shall also
negotiate in good faith with regard to the coverage of certain
costs incurred in connection with such ECR, including obsolete
inventory, retooling costs, rework costs and technical file
modifications. In the event that the parties cannot reach a
mutually agreeable amendment in a reasonable period of time,
then either party may request that the matter be resolved at
the senior executive level. In such event, the Chief
Executive Officer or Chief Operating Officer of the Customer
and Supplier shall negotiate in good faith to reach a mutually
agreeable amendment.
The Supplier shall not implement the ECR before an agreement
is reached by the Supplier and the Customer on the amended
price and the coverage of certain costs (if any) as mentioned
here above.
10. Free Issue Material, Tooling and Test Equipment
10.1 The Customer has provided the Supplier with the tooling
set forth on Exhibit 10.1. Where the Customer, for the
purposes of the Agreement, pays the Supplier the entire cost
of the provision of any other tooling or test equipment
necessary for the performance of the Agreement the property
and risk in tooling or test equipment shall pass to the
Customer when the manufacture of the tooling or supply of the
test equipment is complete and has been satisfactorily tested.
The Supplier shall maintain such tooling or test equipment in
good order and condition, subject to fair wear and tear, and
unless authorized in writing by the Customer, shall use such
tooling or test equipment solely in connection with the
Agreement. Upon termination of Supplier's obligations to
Customer pursuant to the Agreement, the Supplier shall make
available to Customer such tooling or test equipment to be
removed from Supplier's facility at the sole expense of the Customer.
10.2 If test equipment provided by the Customer is utilized by
the Supplier solely in support of the Agreement, the Customer
agrees to pay the maintenance costs of the test equipment.
Where the Supplier is authorized to use the test equipment for
purposes other than the Agreement, these costs will be shared
between the Supplier and the Customer, in proportion to their utilization.
10.3 Where the Customer, for the purposes of the manufacture
of Goods pursuant to the Agreement, issues materials free of
charge to the Supplier ("Free Issue Materials"), such
materials shall remain the property and risk of the Customer.
The Supplier shall maintain all such materials in good order
and condition. The Supplier shall use such material solely in
connection with the Agreement. Waste of such materials arising
from bad workmanship or negligence of the Supplier shall be
made good at the Supplier's expense. Upon the termination of
Supplier's obligations pursuant to the Agreement, the Supplier
shall deliver such materials, whether further processed by the
Supplier or not, to the Customer on demand.
10.4 On receipt of such Free Issue Materials, the Supplier
shall carry out a reasonable visual examination to check that
the materials are free from defects or deficiency and accord
with the Agreement. The Supplier shall notify the Customer as
soon as is practicable, but in any case, within seven (7) days
where any such defects or deficiencies are discovered. In the
event that the Supplier notifies the Customer of any such
deficiencies, Supplier may return such defective or deficient
materials to Customer at Customer's sole expense.
10.5 The Supplier agrees to introduce and maintain such
systems and processes as may be necessary to accurately
control the stock holding, movement and analysis of such Free
Issue Materials. The Supplier agrees to provide to Customer,
within seven (7) days of demand, such information pertaining
to such material as may be reasonably requested by the Customer.
10.6 For the purposes of the Agreements the Customer shall
provide the Supplier, for the Term of the Agreement the
tooling and test equipment shown in Exhibit 10.1 to the
Agreement. The tooling and test equipment listed shall remain
the property and risk of the Customer. Upon termination of
Supplier's obligations to Customer pursuant to the Agreement,
the Supplier shall make available to Customer such tooling and
test equipment to be removed from Supplier's facility at the
sole expense of the Customer.
11. Quality Systems
11.1 The Supplier shall demonstrate and maintain a suitable
Quality Assurance system. The Supplier agrees to disclose all
quality assurance information, in relation to the manufacture
of the Goods, at any time, as may be reasonably requested by
the Customer.
11.2 The Supplier agrees to maintain appropriate records
pertaining to the efficiency and reliability of the production
processes. These records will include , inventory accuracy
measures, production volumes achieved, and quantity of rejections.
11.3 The Customer shall have right of access for inspection of
records or processes at any reasonable time and reserves the
right to inspect by appointment.
12. Assignment and Sub-Contracting
12.1 Neither the Supplier nor Customer shall assign the
Agreement in whole or in part and shall not sub-contract any
part or process without the formal, written approval of the
other party to this Agreement, provided, however, that
Supplier may sub-contract any part or process consistent with
the manufacturing process historically employed by WPI
Electronics, Inc. in the manufacture of the Goods.
12.2 Notwithstanding the provisions of Section 12.1, in the
event of a Change of Control of Customer, the Customer shall
assign the Agreement in conjunction with the Change in Control
and shall cause any entity that succeeds to a majority of
assets of Customer as a result of a Change of Control of
Customer to assume this Agreement and is bound by its terms.
It is the express intent of the parties that this Agreement
may not be excluded from any event that gives rise to a change
in control. For the purposes of this Agreement, a "Change in
Control of Customer" shall mean the disposition of a majority
of the voting securities or assets of WPI Group, Inc., and/or
a sale of WPI Oyster Termiflex, Inc., either alone or in
conjunction with WPI Husky Computers, Limited and/or WPI Husky
Computers, Inc., by stock or asset purchase, merger or otherwise.
13. Payment Terms
13.1 The Customer shall make payment to Supplier for all Goods
sold to it and services rendered to it by or on behalf of
Supplier within thirty (30) days from the date of invoice.
13.2 All payments shall be made in United States currency by
check or wire transfer to an account specified by Supplier.
14. Warranty
14.1 The Supplier warrants that the Goods will conform
substantially to the specifications provided by the Customer
and will be of satisfactory quality and free from defects in
quality and workmanship.
14.2 The Supplier's liability shall be restricted to defects
proved to its reasonable satisfaction to have arisen from
Supplier's manufacturing and testing process or workmanship or
defects in materials (which does not include Free Issue Materials).
14.3 The Supplier shall promptly and at its own expense remedy
(by means of a refund or replacement or repair at the
reasonable option of the Supplier) all defects in the Goods
appearing within twelve (12) months of the date of delivery of
the Goods by the Supplier to the Customer.
14.4 The Customer may return (at its own risk and expense) the
defective Goods or defective components thereof to the
Supplier, who shall return to the Customer (at its own risk
and expense) the repaired or replacement Goods, within fifteen
(15) working days of the receipt of the Goods by the Supplier,
subject to the availability of components.
14.5 THIS WARRANTY SPECIFICALLY EXCLUDES MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. The Supplier will have no
obligation under the warranty if the defect is caused by
catastrophe or accident, the negligence of the Customer or any
third party, improper installation, use or maintenance of the
Products in a manner for which they were not designed, or
defects caused by any repair or modification made by any party
who is not an authorized Customer business partner, or is not
authorized by the Supplier, or if the defect is caused by Free
Issue Material, as that term is defined in section 10, which
defect was incapable of detection by normal, incoming
inspection procedures.
14.6 The warranty terms of all Goods delivered by Supplier to
Customer pursuant to this Agreement shall be governed by this
section and shall explicitly override the warranty terms of
the Supplier's standard purchase order.
14.7 Notwithstanding anything in this Agreement, any of the
Goods which are delivered to Customer which were included as
part of the Initial Terminal Products Inventory shall be
deemed to conform to the Customer's specifications and
quality, and conform to the warranties as set forth in this
Agreement, unless such Goods have been altered by Supplier
after the effective date of this Agreement.
15. Confidentiality
15.1 The Supplier shall keep confidential all information
obtained from the Customer in connection with the performance
of the Agreement and all information in relation to the
Customer's affairs, business or business practices, which
comes to the Supplier's knowledge during the period of the Agreement.
15.2 The Supplier shall not be bound by the above provisions
of this condition in relation to information that is:
15.2.1 published or comes into the public domain otherwise
than by a breach of the Agreement;
15.2.2 lawfully known to the Supplier before the
commencement of the Agreement;
15.2.3 lawfully obtained from a third party which is free
to divulge that information; or
15.2.4 responsive to a legitimate inquiry from a government
agency, or required to be disclosed by Supplier in
conjunction with litigation.
15.3 The provisions of this Condition shall survive the
expiration or termination of the Agreement.
16. Customer's Right of Termination
16.1 If the Supplier commits material or persistent breaches
of the Agreement, the Customer shall send written notice of
such breaches to the Supplier. The Supplier shall diligently
work within thirty (30) days to remedy such breaches to the
Customer's reasonable satisfaction. If the nature of the
breaches is such that they cannot be remedied within thirty
(30) days, the Supplier shall diligently pursue such remedy,
provided, however, that no such breaches shall exist for a
period of more than ninety (90) days from the date of
Customer's notice. If the Supplier is unable to remedy the
breaches within the times provided above, the Customer,
without prejudice to any other right it may have, shall have
the right to terminate the Agreement and any or all orders
forthwith, subject to its obligations under section 3.2 of
this Agreement, provided, however, that Customer's cover under
section 3.2 shall not include any mark-up from material cost.
16.2 Without prejudice to any other rights or remedies it may
have, the Customer shall have the right at any time to
terminate the Agreement and/or any or all orders forthwith, if:
16.2.1 The Supplier becomes insolvent or ceases to carry on
its business as a going concern; or
16.2.2 A Bankruptcy petition or order is presented or made
against the Supplier or if a trustee is appointed in
respect of its assets and such petition or appointment
is not discharged or dismissed within sixty (60) days; or
16.2.3 A receiver or an administrative receiver is
appointed in respect of any or part of its assets and such
appointment is not discharged or dismissed within sixty
(60) days; or
16.2.4 A resolution or petition or order to wind up the
Supplier is passed or presented or made or a liquidator is
appointed (otherwise for reconstruction or amalgamation)
and such resolution or petition is not discharged or
dismissed within sixty (60) days.
16.3 Except as otherwise provided herein, termination of the
Agreement for whatsoever cause shall not release the Supplier
or the Customer from any of it's obligations under this
Agreement, which, either expressly or by implication are
intended to survive the termination of the Agreement,
including but not limited to confidentiality, warranty and
inventory cover obligations.
17. Supplier's Right of Termination
17.1 Without prejudice to any other rights or remedies it may
have, the Supplier shall have the right at any time to
terminate the Agreement and seek Acceleration of Performance
(as defined below), if:
17.1.1 The Customer becomes insolvent or ceases to carry on
its business as a going concern; or
17.1.2 A Bankruptcy petition or order is presented or made
against the Customer or if a trustee is appointed in respect
of its assets and such petition or appointment is not
discharged or dismissed within sixty (60) days; or
17.1.3 A receiver or an administrative receiver is
appointed in respect of any or part of its assets and such
appointment is not discharged or dismissed within sixty (60)
days; or
17.1.4 A resolution or petition or order to wind up the
Customer is passed or presented or made or a liquidator is
appointed (otherwise for reconstruction or amalgamation) and
such resolution or petition is not discharged or dismissed
within sixty (60) days .
17.2 Except as otherwise provided herein, termination of the
Agreement for whatsoever cause shall not release the Supplier
or the Customer from any of it's obligations under this
Agreement, which, either expressly or by implication are
intended to survive the termination of the Agreement,
including but not limited to confidentiality, warranty and
inventory cover obligations.
17.3 In the event that Customer is more than fifteen (15) days
late in making payment on an Purchase Order made with Supplier
pursuant to this Agreement, the Supplier shall notify Customer
that payment must be made within fifteen (15) days of the date
of notice (the "Non-Payment Notice"). If Customer does not
remit payment within the fifteen (15) day notice period, the
Supplier may terminate the Agreement for non-payment and seek
Acceleration of Performance (as defined below).
18. Acceleration of Performance.
18.1 In the event that the Customer or Supplier terminates the
Agreement pursuant to sections 16 or 17 of this Agreement, the
Customer is deemed to request that Supplier accelerate the
invoicing of the remaining Initial Terminal Products Inventory
("Acceleration of Performance").
18.2 Notwithstanding section 17.3, in the event of
Acceleration of Performance all sums owed to Supplier by
Customer for the remaining Initial Terminal Products Inventory
invoiced and all other amounts invoiced by Supplier to
Customer shall immediately become due and owing.
19. Intellectual Property
19.1 The Customer acknowledges that it is requiring the
Supplier to manufacture the Goods in compliance with the
Specifications. The Customer warrants: (i) that any Material
(including any part thereof), the Customer's Specifications,
the manufacture, the sale and the distribution, use or resale
by the Customer or its customers of Products, either
separately or as combined with or integrated into other
products do not infringe any patent, copyright or other
proprietary right of any person or entity, and (ii) that there
are no known claims or suits threatened or pending regarding
any such proprietary rights or which would adversely affect
the Agreement. The Customer agrees that this is a continuing
warranty and therefore agrees that if it is notified of any
such claim after the effective date of this Agreement, it
shall promptly inform the Supplier.
In the event of any claim of infringement hereunder, the
Customer shall defend any actions and shall indemnify and hold
harmless the Supplier from and against any and all claims,
costs, losses and damage arising from or caused thereby,
including reasonable attorney's fees. The Customer shall have
sole control over the litigation and/or settlement of any such
infringement claims.
20. Endemic Failure
20.1 Endemic design failure. If at least five percent (5%)
of the Goods manufactured in one (1) month, are confirmed to
have the same or substantially the same design defect as a
result of the Customer's design of the Goods, such defect
shall be deemed to be an endemic design failure ("Endemic
Design Failure"). It shall be the Customer's responsibility
to solve such Endemic Design Failure and to pay the Supplier's
costs directly associated with the Endemic Design Failure such
as, manufacturing stop, work in progress, finished Product in
inventory or in transit, cost of components in house or on
order, premium working and rework.
However, Supplier will provide Customer, at its request
technical support in order to correct the design failure at
Customer 's cost .
20.2 Endemic Failure due to material or workmanship defects.
Where more than ten percent (10%) of the Goods supplied by
Supplier, and which were not part of the Initial Terminal
Products Inventory, fail within any one year due to the same
failure in material or workmanship (an "Endemic Manufacturing
Failure"), the Supplier shall at its own cost and option:
20.2.1 rectify all of the Goods that are identified as
suffering or likely to suffer from such an Endemic
Manufacturing Failure and to pay all direct costs actually
borne by the Customer due to the Endemic Manufacturing
Failure. The time period for such rework to be as agreed
between the parties hereto; or
20.2.2 replace all the Goods that are identified as
suffering or likely to suffer from such an Endemic
Manufacturing Failure and to pay all direct costs actually
borne by the Customer due to the Endemic Manufacturing
Failure. The time period for such replacement to be as agreed
between the parties hereto
20.3 The Customer shall be solely responsible for any costs
associated with any Endemic Design Failure or Endemic
Manufacturing Failure involving any Goods which are included
in the Initial Terminal Products Inventory and which have not
been altered by the Supplier after the effective date of this Agreement.
20.4 The provisions of this section shall survive the
expiration or termination of the Agreement for a period of 12 months.
21. Liquidated and Ascertained Damages
21.1 Should the Supplier fail to deliver all or any of the
Goods by the delivery date specified in the Purchase Order, or
any extended delivery date agreed under the Purchase Order,
then the Customer shall, in addition to and without prejudice
to any other remedies available to it under the Contract, at
law and in equity have the right to require the Supplier to
pay 0% for the first week that the Goods are delayed, 2% of
the Contract price of the Goods, for the second week or part
thereof that the Goods are delayed, 3% of the Contract price
of the Goods, for the third week or part thereof that the
Goods are delayed, and 5% of the Contract price of the Goods,
for the fourth week or thereafter that the Goods are delayed,
. Damages shall be limited to the Contract price of those
items in default.
21.2 Should the Customer fail to pay for all or any of the
Goods within thirty (30) days of the date of the invoice, then
the Supplier shall, in addition to and without prejudice to
any other remedies available to it under the Agreement, at law
and in equity have the right to require the Customer to pay
1.5% of the invoice amount for each month or part thereof that
payment is delayed.
21.3 Supplier shall not manufacture or sell products which are
directly competitive with the Goods during the Term.
22. Miscellaneous
22.1 This Agreement shall be governed and construed in
accordance with the laws of the State of New Hampshire,
without consideration to conflicts of laws principles.
22.2 Any notice required under this Agreement shall be
sufficient if communicated in writing and if sent by
telecopier with a confirmation of receipt with the original
notice sent by first class mail, duly addressed, postage
prepaid to the respective addresses as stated in this
Agreement or as subsequently changed. For the purposes of
section 3.1 only, notices sent by e-mail messages shall be
deemed to be effective when received. Any party whose address
changes during the term of this Agreement shall notify the
other party in writing as to the new address.
22.3 This Agreement together with the attached Exhibits and
Asset Purchase Agreement contain all of the agreements,
understandings, representations, conditions, warranties, and
covenants made between the parties with respect to the subject
matter hereof.
22.4 The failure of either party at any time to require
performance by the other party of any provision shall not
affect in any way the full right to require such performance
at any time, nor shall the waiver by either party of a breach
of any provision be taken or held to be a waiver of the
provision itself.
22.5 A party shall not be deemed to have defaulted or failed
to perform hereunder if that party's inability to perform or
default shall have been caused by an event or events beyond
the control and without the fault of that party, including
(without limitation) acts of government, embargoes, fire,
flood, explosions, acts of God or a public enemy, strikes,
labor disputes, vandalism, civil riots or commotions.
22.6 No modification, amendment, extension, renewal or waiver
of any of the provisions contained herein, or any future
representation, promise or condition in connection with the
subject matter hereof, shall be binding upon either party
unless in writing and signed by an officer on behalf of both parties.
22.7 If, in a final judgment of a court of competent
jurisdiction, any provision of this Agreement is held to be
invalid, said provision shall be considered void to the extent
of such invalidity, without invalidating any of the remaining
provisions of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered by each of the parties on the date first abovewritten.
SUPPLIER:
Warner Power, LLC
By:/s/Dennis Deegan ---------------------
Name:Dennis Deegan Title: CUSTOMER:
WPI Group, Inc.
By:/s/Michael Tule ----------------
Name:Michael Tule
Title:Vice President and
General Counsel
WPI Oyster Termiflex, Inc.
By:/s/Michael Tule ------------------------
Name:Michael Tule
Title:Vice President and
General Counsel
