INTERNATIONAL AGENCY AGREEMENT
THIS
INTERNATIONAL AGENCY AGREEMENT (“Agreement”) is made as
of December 15, 2006, by and between Phosphate Chemicals
Export Association, Inc., a Delaware non-profit corporation (the
“Association”) and PCS Sales (USA), Inc., a Delaware
corporation (“Agent”).
A. The
Association has been formed as a non-profit corporation to engage
solely in export trade as defined by the act of the U.S. Congress
entitled “An Act to Promote Export Trade, and for other
Purposes,” approved April 10, 1918, commonly known as
the “Webb-Pomerene Act” (hereinafter, the
“Act”), as amended, and is governed pursuant to that
certain Second Amended and Restated Membership Agreement dated as
of January 1, 1995 (the “Membership
Agreement”);
B. The
Association hereby desires to appoint the Agent, and the Agent
hereby desires to accept such appointment, as the
Association’s independent and, except as set forth in the
Membership Agreement, exclusive export marketing agent for Wet
Phosphatic Materials, pursuant to the terms and conditions of this
Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
herein contained, it is agreed as follows:
1.1
Appointment. Subject to the terms and conditions hereof, the
Association hereby appoints Agent, for the term of this Agreement,
as its independent and, except as set forth in the Membership
Agreement and in the International Agency Agreement between the
Association and Mosaic, exclusive export agent for the marketing,
solicitation of orders for and freighting of the Wet Phosphatic
Materials identified more specifically in Exhibit A hereto
attached and incorporated herein by reference (the
“Products”). Agent hereby accepts such appointment and
agrees to devote its best efforts to the performance of such duties
as may be reasonably necessary to promote export trade in Wet
Phosphatic Materials.
1.2
Independent Contractor Status. This Agreement does not
constitute a general agency. Agent shall be a legal representative
of the Association only for the limited purposes set forth in this
Agreement with respect to its responsibilities as export agent for
Wet Phosphatic Materials. Agent is not granted and shall not
exercise the right or authority to assume or create any obligation
or responsibility on behalf of or in the name of the Association.
Agent shall take no action which could confer on the Association
“permanent establishment” or equivalent status (as
defined in any applicable law or income tax treaty) or otherwise
subject the Association to income taxation in any country or
political subdivision in or for which the Agent has responsibility
under this Agreement. Agent shall be responsible for all of its own
expenses and employees.
A. Agent
agrees not to appoint sub-agents in the sale of Products unless
such appointment is approved in writing by the
Association.
B. Notwithstanding
anything to the contrary in this Agreement, it is understood and
agreed that Agent shall have no authority whatsoever to, and shall
not (i) sell, accept orders for or contract for the sale of
Products on behalf of or as agent of the Association;
(ii) establish or purport to establish terms and conditions of
sale on behalf of the Association; and/or (iii) sign any
contracts, offers or other documents of any kind whatsoever on
behalf of the Association or commit or bind, or purport to commit
or bind, the Association in any manner.
C. Agent
acknowledges and agrees that the Association has sole authority to
establish the selling price and other terms and conditions
respecting all sales of Products by the Association, including,
without limitation, to offer to sell, to accept, to reject or
cancel in whole or in part any order or proposed order in each
case, or sign any contracts, offers or other documents of any kind
whatsoever on behalf of the Association or commit or bind or
purport to commit or bind the Association in any manner.
D. In
transmitting any offers to purchase Products from the Association,
Agent shall inform prospective purchasers that all terms and
conditions of sale, including but not limited to the price, require
the written acceptance and approval of the Association.
2.1
Compensation Payable. Subject to the provisions of this
Agreement, the Association shall pay Agent a fee for all of
Agent’s services pursuant to this Agreement as should be
determined by the Board of Directors. Such compensation shall be
paid in equal quarterly installments due and payable on the first
business day of each calendar quarter during the term
hereof.
III.
AGENT’S COVENANTS AND REPRESENTATIONS
3.1
Sales Promotion . Agent shall use its reasonable efforts to
promote the sale and use of Products by all existing and potential
customers outside of the United States and Canada.
3.2
Sales Policies and Procedures . Agent shall comply at all
times with the Association’s sales policies and procedures in
effect from time to time. A current copy of such sales policies and
procedures is attached hereto as Exhibit B. Any breach of such
sales policies and procedures shall be deemed a breach of this
Agreement. The Association may amend, modify or otherwise change
such policies and procedures upon sixty (60) days’
notice to Agent.
3.3
Instructions . The Agent will issue reasonable instructions
to each Member as to delivery, quality, grading, packing, invoicing
and shipping of Export Sales made by the Association. It is the
Agent’s understanding that each Member will use its
reasonable efforts to comply with all such instructions.
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3.4
Confidential Information . During the term of this
Agreement, Agent will have access to certain pricing, technical,
marketing and other confidential information of the Association and
of individual Members of the Association. Agent acknowledges that
such confidential information comprises valuable trade secrets and
is proprietary to the Association and such Members of the
Association. Agent shall hold such confidential information in
strict confidence and shall not use or disclose the same except as
required to perform its obligations under this Agreement. The
foregoing obligation shall not extend to information which is or
becomes public knowledge through no fault of Agent or which is
required to be disclosed by law.
3.5
Trade Name(s) . Agent may identify itself on letterhead,
business cards and signs as an authorized export marketing agent of
the Association, and in sales and promotional materials, provided
such materials have been previously approved by the Association.
Agent shall not register the Association’s trade name(s) or
any name(s) closely resembling them.
3.6
Indemnification . The Association agrees that it shall be
solely responsible for and shall indemnify and hold the Agent
harmless from and against, and will pay to the Agent the full
amount of any loss, claim, damage, liability or expense (including
reasonable attorneys’ fees) resulting to the Agent, either
directly or indirectly, from any acts or omissions of the Agent,
including negligent acts or omissions, in its performance of its
duties and obligations under this Agreement except to the extent
that the loss, claim, liability or expense is due to the
Agent’s gross negligence or willful and wanton misconduct.
The Agent agrees to give the Association written notice of and the
right to assume the defense of any action against the Agent in
respect of any such loss, claim, damage, liability or expense, and
no settlement relating to any such loss, claim, damage, liability
or expense shall be made which affects the Association’s
liability under this provision unless the Association gives written
consent to such settlement, which consent shall not be withheld
unreasonably. Any amount due to the Agent under the aforesaid
indemnity shall be due and payable by the Association on
demand.
4.1
Term and Renewal. This Agreement shall continue in full
force and effect for an initial term expiring December 31,
2007. Thereafter, unless terminated as provided in Article 4.2
below or by mutual written consent, this Agreement will be
automatically renewed for successive one calendar year
terms.
4.2
Termination . This Agreement may be terminated prior to
expiration of the initial or any renewal term, as provided in
Article 4.1 above, by prior written notice to the other party
as follows:
A. By
either party, in the event the other party should fail to perform
any of its obligations hereunder and should fail to remedy such
nonperformance within thirty (30) calendar days after
receiving written demand therefore; provided, however, that upon a
second breach of the same obligation, the other party may forthwith
terminate this Agreement upon notice to the breaching
party;
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B. By
either party, effective immediately, if the other party should be
declared insolvent or bankrupt or make an assignment or other
arrangement for the benefit of its creditors, or if such other
party should have any of its material assets
expropriated;
C. By
the Association, effective immediately, if Agent should attempt to
sell, assign, delegate or transfer any of its rights and
obligations under this Agreement without having obtained the
Association’s prior written consent thereto, or if there
should occur any material adverse change in the management,
ownership, control or financial or technical resources of Agent;
or
D. By
the Association, effective immediately, if any law or regulation
should be adopted or in effect in any country or other political
subdivision in which Agent serves in any capacity as marketing
representative for the Association which would restrict the
Association’s termination rights hereunder or otherwise
invalidate any provisions hereof; or
E. After
December 31, 2007 by either party, without cause, upon ninety
(90) days’ prior notice to the other party.
4.3
Consequences of Termination or Non-Renewal . Upon
termination or non-renewal of this Agreement, Agent shall
immediately: (i) return to the Association, and cease all use
of, the confidential information theretofore furnished by the
Association and in Agent’s possession or control at the date
of termination; (ii) cease
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