Exhibit 10.34
Portions of this document have been redacted pursuant to
a request for confidential treatment. Material that has been
deleted is marked by brackets and an asterisk
([***]).
SALES AGREEMENT
THIS AGREEMENT, made this 8th day of May, 2007,
by and between KOPPERS, INC., a corporation duly organized
under the laws of the Commonwealth of Pennsylvania and having its
principal place of business at 436 Seventh Avenue, Pittsburgh, PA
152191800 (hereinafter “Seller”), and
KMG-BERNUTH, INC., a corporation duly organized under the
laws of Delaware, and having its principal place of business at
10611 Harwin, Suite 402, Houston, TX 77036 (hereinafter
“Purchaser”).
RECITALS
WHEREAS, Seller is engaged in the business of
producing the Products (hereinafter defined) at one or more
locations and Purchaser is engaged in the business of selling the
Products; and
WHEREAS, Seller desires to sell and Purchaser
desires to purchase the Products;
NOW
THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, the parties agree as follows:
ARTICLE 1
DEFINITIONS
For
purposes of this Agreement, the following words, terms and phrases,
where written with an initial capital letter, shall have the
meanings assigned to them in this Article 1 unless the context
otherwise requires:
1.1.
Affiliate. “Affiliate” shall mean any
corporation or other entity that controls, is controlled by, or is
under common control with another party to this Agreement. A
corporation or other entity shall be regarded as in control of
another corporation or entity if it owns or directly or indirectly
controls more than fifty percent (50%) of the voting stock or other
ownership interest of the other corporation or entity, or if it
possesses, directly or Indirectly, the power to direct or cause the
direction of the management and policies of the corporation or
other entity or the power to elect or appoint fifty percent (50%)
or more of the members of the governing body of the corporation or
other entity.
1.2.
Product(s). “Product(s)” shall mean the coal tar
derived creosote or carbon black products described in Schedule
1 hereto.
1.3.
Term. “Term” shall have the meaning set forth in
Section 9.1 of this Agreement.
ARTICLE 2
PRODUCTS QUANTITY
2.1.
Quantity. Seller agrees to sell, and Purchaser agrees to
purchase, the quantity of Products determined under Schedule
2 hereto.
2.2.
Products Specifications. All Products sold pursuant to this
Agreement shall satisfy the specifications set forth on Schedule
1, attached.
ARTICLE 3
PRICE AND PAYMENT
3.1.
Price . Purchaser shall pay the price determined under
Schedule 2 for Products purchased under this Agreement.
Quantities sold shall be based on Seller’s net weights,
unless proven to be in error, with P2 and Creosote Petroleum
Solution density assumed to be 9.15 lb per gallon.
3.2.
Payment. Payment shall be due net thirty (30) days from the
date of invoice for Products delivered hereunder. Interest shall be
due on all unpaid balances after 35 days from date of invoice, at
the rate of 1 % per month.
ARTICLE 4
PURCHASE ORDERS AND DELIVERY
4.1.
Purchase Orders. Purchaser shall submit purchase orders for
Products to Seller in writing or by another agreed means which
shall set forth at a minimum, the quantity ordered, the requested
delivery location, and the shipping instruction and invoice
address. All quantities in purchase orders shall be for immediate
shipment unless otherwise provided in the purchase order. Seller
shall use commercially reasonable efforts to fill each order and
make Products available at the specified delivery locations. Seller
shall notify Purchaser within three (3) days following receipt of
any order if Seller will not fill such order, setting forth the
shortfall in quantity and a later date on which it will be able to
fulfill the shortfall.
4.2.
Delivery. All Products sold under this Agreement will be
sold FOB the Seller’s location(s) as determined under
Schedule 2. Upon transfer of Products to Purchaser’s
trucks or rail cars, risk of loss and title to Products shall pass
to Purchaser.
4.3.
Production Forecasts. As of the date of this Agreement,
Seller has provided a quarterly forecast for the following twelve
(12) months set forth in Schedule 2 of Seller’s
estimate by production facility of Products to be produced by
Seller (including toll or third party facilities), and thereafter
at least twenty (20) days prior to the end of each calendar quarter
during the Term (March 31, June 30, September 30 and December 31),
Seller agrees to provide Purchaser, for guidance only, with a
written quarterly forecast for the following twelve (12) months
indicating Seller’s estimate of anticipated production of
Products at each production facility. The forecasts shall be
estimates only and neither party shall have any liability to the
other with respect thereto. The forecast shall be used by Purchaser
to facilitate its planning for its Products sales to its
customers.
ARTICLE 5
ACCEPTANCE OF PRODUCT
5.1.
Acceptance of Products. In the event of any shortage, damage
or discrepancy in or to a shipment of Products, Purchaser shall
promptly report the same to Seller and furnish such written
evidence or other documentation as Seller may deem appropriate.
Seller shall not be liable for any such shortage, damage or
discrepancy unless Seller has received notice and substantiating
evidence thereof from Purchaser within
thirty (30) days of arrival of the Products at
Purchaser’s shipping address. If the substantiating evidence
delivered by Purchaser demonstrates that Seller is responsible for
such shortage, damage or discrepancy, Seller shall promptly deliver
additional or substitute Products to Purchaser in accordance with
the delivery procedures set forth herein.
ARTICLE 6
LIMITED WARRANTY
6.1.
Limited Warranty. Seller warrants that (i) it has title to
Products sold and purchased pursuant to this Agreement; (ii)
Product, at the time of sale, will be free from all liens, security
interests, and encumbrances; and (iii) the Product will, on
delivery, conform to the Specifications. THE WARRANTIES SET FORTH
IN THIS ARTICLE ARE INTENDED SOLELY FOR THE BENEFIT OF PURCHASER.
ALL CLAIMS HEREUNDER SHALL BE MADE BY PURCHASER AND MAY NOT BE MADE
BY PURCHASER’S CUSTOMERS. THE WARRANTIES SET FORTH ABOVE ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE
HEREBY DISCLAIMED AND EXCLUDED BY SELLER, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
6.2.
Claims. In the event of any claims of breach of warranty
asserted by Purchaser, Purchaser will cause such claim to be
transmitted to Seller, in the case of a claim first made by
Purchaser, within ten (10) days of arrival of the Products at
Purchaser’s shipping address. No claim for breach of warranty
shall be made if Seller’s products are first co-mingled with
other Products from other producers, unless a sample from the
delivery vehicle (not co-mingled) or Seller’s retained sample
reflects a basis for a claim.
6.3.
If any Products fail to meet the warranty set forth in this Article
concerning conformance to specifications, Seller will at its option
(i) replace the defective or non-conforming Products at no
additional cost to Purchaser or its customer or, (ii) provided the
defective or non-conforming Products are reasonably deemed usable
by Purchaser or the customer, agree to a reasonable reduction of
the purchase price. In the event of a breach of the warranty of
title, Seller shall provide a cure reasonably satisfactory to
Purchaser. This Section sets forth the exclusive remedies for
claims based on the warranties contained herein. Warranty claims
hereunder must be made promptly and in writing, must recite the
nature and details of the claim, the date the cause of the claim
was first observed and the lot number or other identifying number
for the Products concerned.
ARTICLE 7
LIMITATION OF LIABILITY
7.1.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
OR EXEMPLARY, OR PUNITIVE DAMAGES, IN RESPECT OF ANY THEORY OF
LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH.
ARTICLE 8
TAXES
8.1.
Taxes. Any tax or other charge, other than income tax, upon
the production, sale or shipment of Products imposed by federal,
state, municipal or other governmental authorities shall be added
to the price paid by Purchaser. Seller and Purchaser agree that
sales or use taxes will not be collected where Purchaser is in
possession of applicable resale certificates and any other
documents required to exempt from sales tax the sales to Purchaser
by Seller hereunder. Verification of same will be provided by
Purchaser to Seller upon reasonable request.
ARTICLE 9
TERM AND TERMINATION
9.1.
Term . This Agreement shall take effect on the date of this
Agreement and (unless earlier terminated as provided in this
Agreement) shall continue through March 1, 2017;
provided, that unless either party gives at least one year’s
prior written notice that this Agreement shall not be renewed as of
March 1, 2017, this Agreement shall be renewed on
March 1, 2017 for an additional three (3) years.
9.2.
Termination. Notwithstanding the provisions of Section 9.1
above, this Agreement may be terminated in accordance with the
following provisions:
(a)
Either party hereto may terminate this Agreement at anytime by
giving notice in writing to the other party, which noti
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