EXHIBIT 10.35
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this "Agreement") is made as of this 29th day of
December, 1999 by and between Union Maritima Internacional, S.A., a Spanish
company ("UMAR," together with its affiliates as they become parties to this
Agreement from time to time, are herein referred to as "SUPPLIER"), DEVCON
INTERNATIONAL CORP., a Florida corporation ("DEVCON") and its wholly owned
subsidiaries listed on EXHIBIT A hereto (the "SUBSIDIARIES" and together with
Devcon, are herein referred to as the "PURCHASERS" and each individually as a
"PURCHASER").
RECITALS:
A. Supplier is in the business, among other things, of selling cement
(the "PRODUCT").
B. Purchasers are in the business of ready-mix and block production.
C. Supplier, Devcon and/or certain of their affiliates have entered
into that certain Asset Purchase Agreement dated November 22, 1999 (the "ASSET
PURCHASE AGREEMENT") wherein Devcon and/or its affiliates are selling certain
assets to Supplier and/or its affiliates. A condition to the Asset Purchase
Agreement is the agreement by Supplier to supply and by Purchasers to purchase
the Product based on the terms and conditions set forth herein.
D. Supplier and Purchasers wish to enter into this Agreement in order
to establish terms, conditions and procedures for the sale by Supplier to
Purchasers of the Product.
AGREEMENTS:
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Supplier and Purchasers, intending to be legally
bound hereby, agree as follows:
1. RECITALS. The foregoing recitals are adopted as part of this
Agreement.
2. AGREEMENT TO PURCHASE AND SELL.
(a) Subject to Paragraph 2(c) hereof, Supplier shall sell to
Purchasers, and Purchasers shall purchase and accept from Supplier, at the
prices and upon the terms and conditions provided in this Agreement, such amount
of the Product as Purchasers may request from time to time.
(b) Purchasers acknowledge that Supplier has other customers
for the Product and that shortages of supply may occur from time to time. The
failure to accept or fill orders from the Purchasers shall not be deemed a
breach of Supplier's obligations hereunder so long as: (i) Supplier uses its
reasonable efforts to accept and fill orders for the Product from the
Purchasers; and (ii) the percentage fill rate for orders from Purchasers is not
less than the fill rate for orders of similar goods sold to affiliates of
Supplier from similar sources as the Product sold to Purchasers. In the event
that the Supplier is unable to supply the Products required by the
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Purchasers, the Purchasers shall have the right to purchase the Products from
other suppliers until such date agreed to by the parties when the Supplier will
be able to accept and fill the orders for the Product from the Purchasers.
(c) Purchasers expect to purchase, in the aggregate, a minimum
of 75,000 metric tons, plus or minus 10%, of Product per year. Supplier shall
have the ability to increase its rate for the sale of the Product in the event
the Purchasers do not meet this target purchase amount. This target quantity
shall be reviewed annually.
(d) Subject to Paragraph 5, for as long as Supplier performs
satisfactorily under the terms of this Agreement, and excluding any Purchaser
who may have terminated this Agreement according to the terms hereof, each
Purchaser agrees that the Supplier shall be its exclusive supplier of Product
during the Term (as defined below). Notwithstanding the foregoing, any
Purchaser's utilization of inventory that is in its possession as of the date
hereof shall not be deemed to be a violation of this Paragraph 2(d).
3. EFFECTIVE DATE AND TERM. This Agreement shall take effect on the
date of the closing of the Asset Purchase Agreement (the "EFFECTIVE DATE").
Unless sooner terminated in accordance with the terms of this Agreement, this
Agreement shall remain in effect for the period (the "TERM") of five (5) years
from the Effective Date. Any Purchaser may elect to terminate this Agreement
either (i) pursuant to Paragraph 5 hereof or (ii) in the event Devcon no longer
owns a controlling interest in such Purchaser (provided that such Purchaser has
complied with the penultimate sentence of this Paragraph 3), by delivering
written notice to UMAR of such election with not less than thirty (30) days
notice. The termination of this Agreement by one of the Purchasers shall have no
effect on the terms of this Agreement as they apply to the remaining Purchasers.
No Purchaser shall be permitted to sell substantially all of its assets or stock
to any purchaser without such purchaser executing an agreement with the Supplier
with substantially identical terms to those set forth herein; provided, however,
the Purchaser shall not be so obligated in the event the Supplier does not
desire to enter into such agreement with the prospective purchaser. In the event
the Supplier elects to exercise its option to purchase all of the assets of
Caribbean Construction & Development Ltd. ("CCD") as set forth in Paragraph 1.5
of the Asset Purchase Agreement, this Agreement shall automatically be deemed to
be terminated with respect to CCD.
4. QUALITY OF PRODUCT. All Product shall have quality characteristics
and specifications at least equal to ASTM C150 meeting the characteristics for
Portland -- Grey Type I Cement, with an Na2O equivalent of maximum 0.6%.
5. PURCHASE PRICES. Each Purchaser shall be charged and agrees to pay
the rates set forth on EXHIBIT A hereto, for its purchase of the Product. Such
rates shall be reviewed, and revised as agreed upon between the parties
annually, beginning January 1, 2000. Supplier shall present any proposed changes
to the rates no less than ninety days prior to each annual review date. If the
parties are not able to reach an agreement within thirty (30) days of the date
the proposal is made by the Supplier, the Supplier shall be able to set such
rates as it deems appropriate, with such rates taking effect as of the following
January 1. Notwithstanding the foregoing, however, and at any time during the
term of this Agreement, in the event that any
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Purchaser receives a bona fide offer from an unaffiliated third party supplier
to sell a comparable volume of comparable product, over a period of no shorter
than six months, to such Purchaser at a lower rate than those set forth on
EXHIBIT A (the "BETTER OFFER"), and the Supplier does not agree to reduce its
rates to meet those of the Better Offer, such Purchaser shall be free to accept
the Better Offer and terminate this Agreement. A termination by one Purchaser
will in no way affect the rights and obligation of the remaining parties hereto.
The purchase prices shall be expressed in U.S. Dollars. Invoicing and payment
shall be done in U. S. Dollars for all sales except for those in Antigua and
Barbuda and the Commonwealth of Dominica, in which case they shall be in Eastern
Caribbean Units. The Purchaser and the Supplier shall equally bear any changes
in the exchange rates for pending invoices. The rates charged shall be adjusted
on a dollar-for-dollar basis (i.e. either increased or decreased, as
appropriate) based upon any changes made to import duties being paid by the
Supplier relating to the Products in question from those in place as of the date
hereof with respect to products imported from Venezuela.
6. TAXES AND OTHER CHARGES. In addition to the applicable purchase
prices, Supplier shall separately invoice for, and Purchasers shall pay, all
sales, use, excise, value added, gross receipts, turnover and other taxes and
charges imposed by law or required by any government to be paid or collected by
Supplier in connection with the purchase, delivery, sale or use of the Product
pursuant to this Agreement. Except as contemplated in the final sentence of
Paragraph 5 hereof, the foregoing shall not require Purchasers to pay Supplier's
import duties and other importation tax or income taxes based upon Supplier's
net income from this Agreement.
7. PAYMENT TERMS. All payments due Supplier from Purchasers under this
Agreement shall be paid to the applicable Supplier by check or wire transfer.
Invoices may be rendered by the Supplier at any time after the date of Delivery,
as defined below. Payment shall be made in U.S Dollars or Eastern Caribbean
Units, as provided in Paragraph 5 hereof, within forty-five (45) days following
the date of Delivery. Each shipment shall constitute an independent transaction
and Purchasers shall pay the invoice for each such transaction strictly in
accordance with these payment terms.
8. DELIVERY. As used in this Agreement, "Delivery" shall mean the time
upon which the Product is received into Purchaser's cement tankers at the cement
terminal, or as shall be agreed to otherwise by the parties from time to time.
9. RISK OF LOSS AND PASSAGE OF TITLE. Risk of loss and title shall pass
to Purchasers at the time of Delivery of the Product.
10. INDEMNIFICATION. Supplier will indemnify and hold harmless
Purchasers from and against any and all claims, suits, actions, liabilities
and/or damages which are attributable to the failure of the Products to conform
to the quality standards set forth in Section 4 hereof; PROVIDED, HOWEVER, that
the Supplier shall not be obligated to indemnify the Purchasers from and against
any and all claims, suits, actions, liabilities and/or damages to the extent
that they arise as a result of the gross negligence or intentional misconduct of
any Purchaser.
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11. ADDITIONAL SIGNATORIES. UMAR shall cause each of its affiliates
which are formed for the purpose of supplying Product hereunder to become a
signatory of this Agreement as a Supplier upon formation of such entity.
12. BEST PRICE. Unless the parties agree otherwise, in no event shall
the Supplier offer better prices, terms or conditions to any other person in a
particular island than those set forth in this Agreement with respect to (or
otherwise offered to) any Purchaser in the same island.
13. NOTICES. All notices and other communications under this Agreement:
(a) shall be made in writing signed by the authorized agent of the party making
the same, (b) shall be delivered by personal delivery, confirmed telephonic
facsimile transmission, or international commercial express courier, such as
Federal Express or DHL, and (c) shall be deemed effective upon receipt. The
addresses for all notices and communications (other than purchase orders and
shipping releases) are as follows:
If to Supplier: Union Maritima Internacional, X.X.
Xxxxxxx, 00 - xxxxxx 0
00000 XXXXXX - XXXXX
Facsimile x00000000000
Attn: Xxxxxxx Xxxxxxxxxx Xxxx Xx Xxxxxx
With a copy to: Holland & Knight LLP
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
Attn: Xxxxxx Xxxxxx, Xx., Esq.
If to Purchasers: Devcon International Corp.
0000 X. Xxxxxxx Xxxxxx Xxxxx
Xxxxx #000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
Attn: Jan Norelid
With a copy to: Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
Either party may change the address and facsimile telephone number to which
notices and other communications are to be sent, and may add or delete
recipients for notices and other communications, by sending the other party
notice of the changes in accordance with the notice
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provisions of this paragraph. In addition, Supplier may change the address for
purchase orders and shipping releases by notifying Purchasers in writing of the
changed address in accordance with the notice provisions of this paragraph.
14. LANGUAGE. English is the official and exclusive language under this
Agreement. All notices and other communications between the parties shall be in
English. All dispute resolution proceedings shall be conducted and recorded in
English.
15. ASSIGNMENT. Neither party shall assign or delegate any right,
interest or obligation under this Agreement, except that (i) Supplier may
subcontract with third parties for any of the Product (upon giving notice
thereof to the Purchasers), (ii) any Purchaser may do so upon getting the
consent of UMAR and (iii) the Supplier may do so upon getting the consent of
Devcon. No assignment, delegation or subcontract by either party shall relieve
the assigning, delegating or subcontracting party from its obligations and
liabilities under this Agreement. Any attempted assignment or delegation in
contravention of this prohibition shall be void and shall constitute a default
under this Agreement.
16. FORCE MAJEURE. Each of Supplier and Purchasers shall be excused
from its obligations hereunder, and shall have no liability for any resulting
loss or damage, in the event and to the extent that its performance is delayed
or prevented by any event or circumstance reasonably beyond its control,
including but not limited to, fire, floods, epidemics, explosion, embargo, acts
or requirements of any government in its sovereign capacity, acts of God, war,
strikes, walkouts, and riots or other civil disturbances, inability to secure
raw material or transportation facilities, or for any act or omission of
carriers or suppliers. Delay in or prevention of performance of either party
shall be excused under this Paragraph 16 only for the period during which such
cause continues, and only if the party whose performance is delayed or prevented
gives written notice thereof to the other party within ten (10) days of the
event causing such delay or prevention. The parties hereto shall not have the
right to terminate this Agreement solely as a result of any act or event
described in this Paragraph 16.
17. WAIVER. No course of dealing, course of performance, or failure of
either party strictly to enforce any term, right or condition of this Agreement
shall be construed as a waiver of such term, right, or condition or affect the
right to enforce that term, right or condition in the future, nor shall any
express waiver be construed as a continuing waiver of any such term, right or
condition.
18. GOVERNING LAW. The construction, interpretation and performance of
this Agreement shall be governed by the internal laws of the State of Florida
(without giving effect to their conflicts of laws provisions).
19. ENTIRE AGREEMENT. This Agreement, with all exhibits attached
hereto, together with the Asset Purchase Agreement, the Distributorship
Agreement, the Management Agreement and the License Agreement, all as executed
by the parties as of the date hereof, constitute the entire agreement between
the parties with respect to its subject matter. All prior or contemporaneous
oral and written agreements, memoranda and representations (and any
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subsequent purchase order, purchase order confirmation, or similar document)
relating to sales of Product during the term of this Agreement are superseded by
this Agreement.
20. AMENDMENTS. This Agreement may be amended only by a subsequent
writing signed by authorized representatives of Devcon and UMAR, indicating an
intent to amend this Agreement.
21. SEVERABILITY. If a court of competent jurisdiction adjudges any
provision of this Agreement to be invalid or unenforceable, the remaining
provisions shall not be affected thereby, and the parties shall in good faith
attempt to amend this Agreement to eliminate such invalidity or
unenforceability, without thereby affecting the intent of the parties as
expressed herein.
22. CONFIDENTIALITY. Purchasers and Supplier agree that all
confidential commercial, technical and other information provided hereunder by
either party to the other party will be used only for evaluation purposes or for
purposes of performance of this Agreement, shall be kept confidential by the
receiving party using the same standard of care as such receiving party uses to
protect its own similar confidential information, and shall not be sold or
disclosed in any manner to any third party by the receiving party. The
obligations under the preceding sentence do not apply to information which: (a)
was previously known to the receiving party free of any obligation to keep it
confidential; or (b) is or becomes publicly available by any means or medium
other than unauthorized disclosure; or (c) is independently developed by the
receiving party; or (d) is disclosed to third parties by the disclosing party
without restriction; or (e) is received from a third party whose disclosure
would not violate any confidentiality obligation.
23. ARBITRATION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination or validity of this
Agreement, which has not been resolved by a non-binding procedure, shall be
settled by arbitration in Miami, Florida (unless the applicable Supplier and
Purchaser agree in writing to another location), in accordance with the
Arbitration Rules of the American Arbitration Association then in effect, except
that the Suppliers and the Purchasers agree under any circumstances they shall
be permitted reasonable discovery of documents and depositions of an adequate
number of witnesses. Notwithstanding anything to the contrary in this Agreement,
the Suppliers and the Purchasers further agree that arbitration shall not be
utilized to determine any dispute, controversy or claim which requires a third
party's presence either as the co-respondent or as an indemnifier, unless the
third party agrees to be bound by the arbitration. Disputes described in the
preceding sentence shall be resolved through proceedings commenced and
prosecuted in a state or federal court in Miami, Florida.
(b) Within one week after the Supplier, on the one hand, or
the Purchaser, on the other hand, requests arbitration and the other party
receives notice of such request, both parties shall supply the American
Arbitration Association with a list of qualifications for the arbitrators.
Within two weeks after receipt of the parties' lists of qualifications for the
arbitrators, the American Arbitration Association shall supply the parties with
a list of 21 potential arbitrators, and the Supplier, on the one hand, and the
Purchaser, on the other hand,
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shall each be permitted to strike up to nine proposed arbitrators and shall
notify in writing the American Arbitration Association of the party's decisions.
Within two weeks after receipt of the parties' decisions as to the acceptable
potential arbitrators, the American Arbitration Association shall appoint the
three arbitrators from the group of arbitrators which has not been stricken by
either party.
(c) Resolution of disputes, controversies or claims shall be
determined by a majority vote of the arbitration panel. The Supplier, on the one
hand, and the Purchaser, on the other hand, shall share equally the fees, costs
and expenses of the arbitration, unless the arbitrators modify the allocation of
such fees, costs and expenses because they have determined that fairness
dictates other than an equal allocation between the parties. Each party shall be
responsible for its own attorneys' fees, costs of its experts and expenses of
its witnesses, unless the arbitrators provide otherwise because they have
determined that fairness so dictates. Any award rendered shall be final, binding
and conclusive (without the right to an appeal, unless such appeal is based on
fraud by the other party in connection with the arbitration process) upon the
parties and any judgment on such award may be enforced in any court having
jurisdiction, unless otherwise provided by law. The party submitting such
dispute to arbitration shall inform the American Arbitration Association that
the parties have agreed: (i) to reasonable discovery pursuant to the rules then
in effect under the Federal Rules of Civil Procedure (as used in the United
States District Court for the Southern District of Florida) for a period not to
exceed 120 days prior to such arbitration and (ii) to require that the testimony
at the arbitration hearing be transcribed.
24. TERMINATION. In addition to any other right or remedy provided by
applicable law or this Agreement, either party shall have the right to terminate
this Agreement if the other party: (i) becomes insolvent or files a voluntary
petition in bankruptcy or for reorganization or other debtor relief, or a third
party petitions to have such party involuntarily declared insolvent or bankrupt
and such petition for involuntary insolvency or bankruptcy is not dismissed
within thirty (30) days after being filed; (ii) makes an assignment for the
benefit of creditors, or a custodian, receiver, intervenor, trustee or similar
officer is appointed to take charge of all or part of its property; (iii) fails,
ceases to do business, liquidates or dissolves; or (iv) materially breaches its
obligations under this Agreement and such breach is not cured within thirty (30)
days after notice of breach is received from the non-breaching party; provided,
however, upon the occurrence of a payment default with respect to any shipment
of Product hereunder, Supplier shall also be entitled to cease shipment of any
additional Product until such default is remedied. Termination of this Agreement
will not relieve either party from due performance of all obligations which
matured prior to the effective date of such termination, including without
limitation Purchasers' payment obligations with regard to Product ordered by
Purchasers prior to such termination and Supplier's product liability
obligations imposed by applicable law as to Product previously delivered.
25. EXHIBITS. All exhibits attached to this Agreement are hereby
incorporated into this Agreement and made a part of this Agreement.
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26. COUNTERPARTS. This Agreement may be executed by each party upon a
separate counterpart, each of which shall be deemed an original and all of which
together shall constitute one agreement.
[Signatures appear on the next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized representatives as of the day and year first written
above.
Union Maritima Internacional, S.A., a Spanish company
By: /S/ XXXXXXX XXXXXXXXXX
--------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx Xxxx Xx Xxxxxx
Title: Managing Director
Devcon International Corp., a Florida corporation
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
V.I. Cement & Building Products, Inc.
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
Devcon Masonry Products (BVI), Ltd.
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
Bouwbedrifj Boven Xxxxxx, N.V.
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
Societe des Carrieres de Grand-Case
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
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Bouwbedrifj Boven Xxxxxx Xxxx N.V.
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
Caribbean Masonry Products, Ltd.
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
Antigua Cement, Ltd.
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
Caribbean Construction & Development, Ltd.
By: /S/ JAN NORELID
--------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
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