EQUIPMENT PURCHASE AGREEMENT
----------------------------
AGREEMENT made this 13th day of August, 1997, by and between UNICOR
PLASTIC MACHINERY, INC., a Canadian corporation with a principal place of
business at 000 Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxx X0X 0X0 (hereafter "Unicor") and
ASAHI/AMERICA, INC., a Massachusetts corporation with a principal place of
business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereafter "Asahi").
WHEREAS, Unicor desires to sell and Asahi desires to purchase certain
machinery and equipment hereafter described; and
WHEREAS, it is the intent of Unicor and Asahi to set forth their
agreement relative to the terms and conditions of sale.
NOW, THEREFORE, for good and valuable consideration and in
consideration of the mutual agreements and covenants herein made it is agreed as
follows:
1. Purchase Orders. Asahi does hereby submit and Unicor does hereby
accept Asahi's Purchase Orders Numbered 011498 and 011499 in the amount of
$1,539,810.00 and $893,485.00 respectively. Said Purchase Orders are annexed
hereto as Exhibits "A" and "B". All prices set forth in said Purchase Orders
include sea and land freight (approximately), packaging and custom duties and
fees CIF Dallas, Texas. Asahi may designate, at least thirty (30) days prior to
shipping, another United States location for delivery of the equipment purchased
and Asahi shall pay additional reasonable costs of shipping, if any. All details
and specifications of the equipment ordered shall be pursuant to the quotations
and confirmations referenced in Exhibits "A" and "B". The within Exhibits "A"
and "B" shall supersede and replace the Purchase Order(s) of Quail Piping
Products dated July 21, 1997 (P.O. Number: 00001) which Purchase Order(s) shall
be null and void.
2. Payment. Simultaneously with the execution hereof, Asahi shall pay
by certified check or wire transfer to Unicor the sum of $811,098.00 which
represents one-third of the amount of the Purchase Orders submitted herewith.
Unicor does hereby authorize and direct Asahi to make said $811,098.00 payment
directly to the account of Unicor GMBH Xxxx Plastmaschinen, Industriestr. 56,
D-97437 Hassfurt, Account No. 6221 held with Sparkasse Ostunterfranken, Hassfurt
(Bank Code: 793 517 30) via Bayerische Landesbank Girozentrale Munich (SWIFT
Address: XXXXXXXX) under Reference No. 738XXX. Unicor shall simultaneously
herewith deliver to Asahi an Irrevocable Standby Letter of Credit (the "L/C") in
the amount of $811,098.00 in the form annexed hereto as Exhibit "C" naming Asahi
as Beneficiary thereon. Said L/C shall guarantee the repayment of the
$811,098.00 to Asahi in the event of non-performance of any obligation hereunder
by Unicor and/or Unicor GMBH Xxxx Plastmaschinen, including but not limited to
shipment of the equipment by the due dates stated in the Purchase Orders. The
issuing bank shall be:
Bayerische Landesbank
Nuremberg
Xxxxxxxx Xxxxx 00
00000 Xxxxxxx
Telex Number: 622288GZND
SWIFT BYLADE 77
Asahi's advising Bank shall be:
Citizens Bank of Massachusetts
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telex Number: 211047CTZINTL
` SWIFT Code: XXXXXX00
The additional sums of one-third of the amount allocated to the
equipment set forth on each Purchase Order annexed hereto shall be due and
payable to Unicor upon the shipment set forth in said Exhibits. Said amounts
shall be due and payable by certified check or wire transfer upon presentation
or delivery to Asahi of Negotiable Bills of Lading or Ocean Bills of Lading (or
other documents) acceptable to Asahi in its sole discretion which documents
shall vest ownership and title to the equipment shipped in and to Asahi.
The last and final one-third of the annexed Purchase Orders shall be
due and payable forty-five (45) days after all of the equipment is received at
the location designated by Asahi. The final payment shall be secured by an
Irrevocable Standby Letter of Credit issued by BankBoston, Citizens Bank of
Massachusetts or other financial institution acceptable to Unicor with Unicor
named as beneficiary thereunder.
All costs of the within described Letters of Credit shall be borne by
the applicant of each Letter of Credit.
In the event of default hereunder by Asahi, Unicor's damages shall be
limited to the amount of its payments through the date of default but shall not
limit any obligations under any Letter of Credit.
3. Shipping Dates. The shipping date of each Purchase Order shall be as
set forth as follows:
Purchase Order #011498-00(UC850) - on or before April 8, 1998
Purchase Order #011499-00(UC250) - on or before February 9, 1998
Upon written request of Asahi, Unicor shall advise Asahi of production
status, shipping dates and other matters relative to the status of the Purchase
Orders.
4. Penalties. After fourteen (14) days of the Shipping Date of each
Purchase Order, a one-half percent per week penalty will apply on equipment not
shipped by said Shipping Date(s) not to exceed five percent in the aggregate.
Said amounts may be deducted by Asahi on the next payment due or may, at its
discretion, be withheld from the final one-third payment. In the event equipment
is not shipped within twelve (12) weeks of the Shipping Dates set forth in the
Purchase Orders Asahi shall have the right, but not the obligation, to terminate
and cancel either or both Purchase Orders and receive back all amounts paid and
without further obligation to Unicor.
5. Set Up/Installation. The prices set forth in each Purchase Order
shall include technical assistance for the set up, installation and testing of
the equipment. Unicor shall, at its sole cost and expense, provide one (1)
sufficiently trained technician for one (1) week to provide said technical
assistance for set up, installation and testing to insure the prompt
commencement of proper operations of the equipment at a plant location
designated by Asahi within the United States. Said technician shall be sent
after Asahi confirms by fax that all equipment is in place, hooked up, raw
material are on site and ready for check out and start up. Unicor shall provide
all service and operations manuals written in English at the time of set up and
installation. The prices set forth in each Purchase Order shall include the cost
of training Asahi personnel at the Unicor plant in Germany. Asahi personnel may
be scheduled as mutually agreed on one or more occasions. The costs of travel
and lodging for Asahi personnel shall be borne by Asahi.
6. Warranties. The equipment to be manufactured and sold by Unicor to
Asahi is warranted by Unicor to be free from defects in design and manufacture
for a period of one (1) year from the date of arrival at the Asahi plant
location, provided such equipment is used, operated and serviced in accordance
with written instructions relating thereto furnished by Unicor to Asahi.
Further, Unicor warrants and represents that the equipment sold hereunder is
suitable and fit for manufacturing purposes intended by Asahi. Asahi shall
notify Unicor in writing at the address set forth above of all warranty claims
hereunder.
7. Governing Law. This Agreement shall be considered a contract
executed in the Commonwealth of Massachusetts and shall be governed by the laws
of the Commonwealth of Massachusetts. Both Unicor and Asahi agree that any
dispute, claim or other matters relating to this Agreement, the Purchase Orders
or the documents to be issued hereunder shall be determined only by the Courts
of the Commonwealth of Massachusetts and/or the United States District Court for
the District of Massachusetts sitting in Boston, and both parties hereby agree
to submit to the jurisdiction of such Courts.
8. Assignment. This Agreement may not be assigned without the written
consent of both parties. Provided, however, Asahi shall have the right to assign
this contract to a wholly owned subsidiary, provided such subsidiary agrees to
be bound by the terms and conditions hereof.
9. Entire Agreement; Amendments. This Agreement and the Exhibits hereto
constitute the entire agreement between the parties hereto and supersede all
earlier agreements, written or oral including, without limitation the letter
agreement dated July 31, 1997 (never executed). This Agreement (and the Purchase
Orders) may not be amended except by a writing executed by both parties.
Signed under seal the day and year first above written.
UNICOR PLASTIC MACHINERY, INC.
By /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: President
Duly Authorized
ASAHI/AMERICA, INC.
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman, President
and Chief Executive Officer
Duly Authorized
