Exhibit 10.13
CONFIDENTIAL TREATMENT REQUESTED
UNDER
C.F.R. SECTIONS 200.80(b)(4), 200.83 AND
230.406.
**** INDICATES OMITTED MATERIAL THAT IS
THE
SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST
FILED SEPARATELY WITH THE COMMISSION.
THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.
SUPPLY CONTRACT
Soda Ash
(Sodium Carbonate, Anhydrous)
High Purity Dense Grade for Domestic
Locations
Standard Grade Dense Soda Ash for Export
Locations
THIS SUPPLY CONTRACT, dated as of
February 29, 1996, between OCI Chemical Corporation, a
Delaware corporation (herein, together with its successors and
assigns, “ Seller ”), and Rhone-Poulenc Inc., a
New York corporation (herein, together with its successors and
permitted assigns, “ Buyer ”):
Buyer agrees to purchase from Seller
and Seller agrees to sell to Buyer, on the following terms and
conditions:
1. Contract Period. This
Contract covers the period from the date hereof to
December 31, 2005, and shall continue thereafter for
successive terms of one calendar year each, unless terminated by
Buyer or Seller on not less than 12 months prior written notice to
the other party or unless sooner terminated as provided
herein.
2. Material. This Contract
covers the following material:
(a) For Deliveries to Domestic
Locations: High Purity Dense Grade Soda Ash (Sodium Carbonate,
Anhydrous), as per the attached specifications which are hereby
incorporated into and made part of this Contract.
(b) For Deliveries to Export
Locations: Standard Grade Dense Soda Ash (Sodium Carbonate,
Anhydrous), as per the attached specifications which are hereby
incorporated into and made part of this Contract.
If higher purity or grade of material is
produced by Seller; Seller will give Buyer access thereto on a
competitive basis with Seller’s offers to other
buyers.
3. Quantity. ****
****
A portion of the foregoing quantity shown for
**** has previously been supplied during **** prior to the
consummation on the date hereof of the transactions contemplated by
the Stock Purchase Agreement, dated as of November 29, 1995
(the “ Stock Purchase Agreement ”), between
Seller, Buyer and others.
At least thirty (30) days prior
to January 1 of each year, commencing with 1997. Buyer shall
provide written notice to Seller of **** shall be incorporated
herein; provided that to the extent **** during the then
current calendar year, **** shall be incorporated only with
Seller’s consent.
**** are to be estimated one hundred
twenty (120) days prior to the end of the calendar year for
the upcoming year by Buyer. Seller is to agree to such volume by
ninety (90) days prior to the end of the year.
4. Price. The pricing for
domestic deliveries in any year shall be ****
Domestic deliveries hereunder shall
be made to destinations at the aforesaid price freight pre pay and
add. Seller shall prepay freight and shall invoice Purchaser for
such freight charges at its most favorable rates. For (****) this
reference price for ****. For **** pricing shall be
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negotiated between Buyer and Seller by no later
than 90 days prior to the end of each calendar year for the next
calendar year. ****.
Seller shall provide notice to Buyer
of any domestic price changes made in accordance with the above
provisions, including, in reasonable detail, the calculations
supporting any such price change. Buyer shall be afforded
reasonable access to Seller’s records on reasonable advance
notice and during Seller’s normal business hours for the
purpose of verifying the calculation by Seller of any price change
applicable hereunder. At Buyer’s request, its independent
public accountants may audit the calculations used by Seller to
verify the calculations and components used to determine price. If
discrepancies are noted, Buyer and Seller shall agree to adjust
prices accordingly. Any such audits will be conducted at mutually
agreed upon times, but no more frequently than once each year. All
costs of such audits shall be for the account of Buyer.
5. Packages. For domestic
deliveries, Seller’s standard Hopper Cars and Hopper Trucks;
Pressure Differential Hopper Cars may be supplied by Seller. For
export deliveries, bulk ocean going vessel. Additionally Buyer may
require other containers or packages and will reimburse
Seller’s costs for same.
6. Terms. Buyer acknowledges
that it shall make payments on a monthly basis, without any right
of offset, as follows: ****. Seller shall invoice all domestic
shipments in a single invoice monthly. Buyer is to provide letter
of credit support reasonably acceptable to Seller for all export
shipments.
7. Deliveries. Unless
otherwise specified herein, deliveries shall be made in
approximately equal monthly quantities, except that Seller reserves
the right to limit monthly deliveries to the pro rated estimated or
minimum quantity provided for in this Contract.
8. Weights. In case of bulk
carload or hoppertruck shipments, Shipper’s weight certified
to by sworn Weighmaster, shall govern within 1/29, unless proven
wrong by Buyer.
9. Meet or Release (Competitive
Offer). If after 36 months following the effective date of this
Agreement Buyer receives a written offer from a reputable United
States producer not controlled by or controlling Buyer, to supply,
in place of Seller, all or a portion (which portion shall be no
less than 12 month’s supply) of the goods remaining to be
supplied hereunder which are of like quality, for a like use and
deliverable in like quantities, at an F.O.B. Green River price less
than the then effective F.O.B. Green River reference price
hereunder, and Buyer determines in its sole discretion that it is
willing to accept such offer, then upon Buyer’s written
notice stating all the terms and conditions, including the quantity
the Buyer intends to purchase of the competitive offer, Seller may
by written notice within thirty (30) days of receipt of
Buyer’s notice: (a) meet the competitive offer for the
quantity that Buyer intends to purchase from the competitive source
and amend this Contract accordingly; or (b) choose not to meet the
competitive offer but instead deduct from the
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quantity provided in this Contract the quantity
that Buyer intends to purchase from the competitive source, and
amend this Contract accordingly. If Seller has not exercised its
options above within said thirty (30) days, then Buyer may
either (i) elect option (b) on behalf of Seller by
written notice to Seller within thirty (30) days after the
expiration of such period for Seller’s election, or
(ii) cancel this Contract upon six (6) months’
prior written notice.
10. Buyer’s Additional
Cancellation Option. If during the term of this Contract,
Seller determines that it intends to engage, directly or
indirectly, in the production and sale in the United States of
sodium bicarbonate, then Seller shall give Buyer written notice, at
least two years (to the extent reasonably practicable) in advance
of the date production of sodium bicarbonate by or for Seller is to
commence. If such notice is given or Seller otherwise engages,
directly or indirectly, in the production and sale in the United
States of sodium bicarbonate without having given such notice, then
Buyer shall have the option of canceling this Contract on not less
than ninety (90) days’ prior written notice to
Seller.
11. Title and Risk of Loss.
Title and Risk of Loss with respect to the material sold hereunder
shall transfer to Buyer at the Wyoming Partnership Plant, Green
River, Wyoming.
12. Warranties. Seller warrants that the material delivered hereunder
shall meet Seller’s standard quality or such other
specifications as have been expressly attached hereto and made part
of this Contract. SELLER MAKES NO OTHER EXPRESS WARRANTIES; THERE
ARE NO IMPLIED WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF
THE FACE OF ANY SHIPMENT AND THERE IS NO IMPLIED WARRANTY OF
MERCHANTABILITY; AND BUYER ASSUMES ALL RISK AND LIABILITY FOR ALL
LOSS, DAMAGE OR INJURY TO PERSON OR PROPERTY RESULTING FROM THE USE
OF SAID MATERIAL IN MANUFACTURING PROCESSES OR IN COMBINATION WITH
OTHER SUBSTANCES, OR OTHERWISE.
13. Limitation of Liability.
No claim of any kind, whether as to materials delivered or for
nondelivery of materials, and whether arising in tort or contract,
shall be greater in amount than the purchase price of the materials
in respect of which such damages are claimed. Notwithstanding the
foregoing, the failure to give notice of claim within ninety (90)
days from the day of delivery, or the date fixed for delivery, as
the case may be, shall constitute a waiver by Buyer of all claims
in respect of such materials. In no event shall Seller be liable
for special, indirect or consequential damages.
14. Returnable Containers.
All returnable containers used in making deliveries hereunder are
Seller’s property and shall be used by Buyer only for proper
storage of Seller’s material originally delivered hereunder.
Buyer shall return such containers to Seller’s shipping
point, in substantially the same condition received (normal wear
and tear excepted), within two months from the date of original
shipment.
15. Taxes. Buyer shall
reimburse Seller for all taxes, excise or other charges that Seller
may be required to pay to any government (national, state,
provincial or local) upon,
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or measured by, the sale, production,
transportation or use of any material sold hereunder. Seller may at
its option add to the price of the materials sold hereunder the
amount of any increase in transportation charges for shipments to
Buyer.
16. Force Majeure. Neither
party shall be liable for its failure to perform hereunder if said
performance is made impracticable due to any circumstances beyond
the reasonable control of the party affected, including, but not
limited to, acts of God, fires, floods, wars, sabotage, accidents,
labor disputes or shortages, plant shutdown, equipment failure,
voluntary or involuntary compliance with any law, order, rule or
regulation of government agency or authority, or inability to
obtain material (including power and fuel), equipment or
transportation. The affected party may omit purchases or deliveries
during the period of continuance of such circumstances and the
contract quantity shall be reduced by the quantities omitted.
During any period when Seller shall be unable to supply the total
demands for any material provided for in this Contract, whether
caused by the circumstances specified above or otherwise.
Seller
