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EXHIBIT 10.14
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CHLORINE PURCHASE AGREEMENT
between
PIONEER CHLOR ALKALI COMPANY, INC.
and
OCC TACOMA, INC.
Dated as of June 17, 1997
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TABLE OF CONTENTS
Page Number
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Parties and Recitals
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
COMMITMENTS OF PURCHASE AND SALE
SECTION 2.1 Purchase Commitment . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 Sales Commitment . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
QUANTITY
SECTION 3.1 Pioneer's Annual Volume Options . . . . . . . . . . . . . 3
SECTION 3.2 OCC Tacoma's Annual Volume Options. . . . . . . . . . . . 4
SECTION 3.3 Notification of Annual Quantities . . . . . . . . . . . . 4
SECTION 3.4 Priority of Obligations Under this Agreement . . . . . . 5
ARTICLE IV
TERM
SECTION 4.1 Term of this Agreement . . . . . . . . . . . . . . . . . 6
ARTICLE V
PRICE
SECTION 5.1 Price of Chlorine . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.2 Notification of the Price; OCC Tacoma's Payment . . . . . 6
SECTION 5.3 Pioneer's Right to Audit . . . . . . . . . . . . . . . . 7
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ARTICLE VI
DELIVERY
SECTION 6.1 Shipping Instructions . . . . . . . . . . . . . . . . . . 7
SECTION 6.2 Title and Risk of Loss . . . . . . . . . . . . . . . . . 8
SECTION 6.3 Transportation Costs . . . . . . . . . . . . . . . . . . 8
SECTION 6.4 OCC Tacoma's Right to Audit Certain
Transportation Charges . . . . . . . . . . . . . . . . . 9
ARTICLE VII
MEASUREMENT
SECTION 7.1 Rail Car Delivery . . . . . . . . . . . . . . . . . . . . 9
SECTION 7.2 Calibration of Measuring Devices . . . . . . . . . . . . 10
ARTICLE VIII
WARRANTIES; LIMITATIONS OF CLAIMS
SECTION 8.1 Pioneer's Warranty . . . . . . . . . . . . . . . . . . . 10
SECTION 8.2 Patents . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 8.3 Packaging, Uses and Safe Handling . . . . . . . . . . . . 10
SECTION 8.4 Emergency Response . . . . . . . . . . . . . . . . . . . 11
SECTION 8.5 Quality Claims; Liability . . . . . . . . . . . . . . . . 11
ARTICLE IX
TAXES
SECTIONS 9.1 Responsibility for Taxes . . . . . . . . . . . . . . . . 11
ARTICLE X
LIABILITY AND RESPONSIBILITY
SECTION 10.1 Allocation of Liability . . . . . . . . . . . . . . . . . 12
SECTION 10.2 Procedures for Indemnification . . . . . . . . . . . . . 13
ARTICLE XI
EXCUSE OF PERFORMANCE
SECTION 11.1 Excuse of Performance . . . . . . . . . . . . . . . . . . 14
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ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 Default and Remedies . . . . . . . . . . . . . . . . . . 14
SECTION 12.2 Certain Damages Excluded . . . . . . . . . . . . . . . . 15
SECTION 12.3 Duty to Mitigate . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Successors and Assigns . . . . . . . . . . . . . . . . . 16
SECTION 13.2 Entire Agreement; Amendment . . . . . . . . . . . . . . . 16
SECTION 13.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 13.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 13.5 Severability . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 13.6 Competition . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 13.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 13.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 13.9 Construction . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 13.10 Third Party Beneficiaries . . . . . . . . . . . . . . . . 18
SECTION 13.11 Payments . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 13.12 Incorporation of Appendices . . . . . . . . . . . . . . . 18
Appendix A
Appendix B
Appendix C
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LIST OF APPENDICES
APPENDIX DESCRIPTION
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Appendix A Chlorine Specifications
Appendix B Initial Month Quantities and Shipping
Details
Appendix C Pioneer's Standard Terms and Conditions
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CHLORINE PURCHASE AGREEMENT
THIS CHLORINE PURCHASE AGREEMENT, dated as of the 17th day of June,
1997, is between OCC TACOMA, INC., a Delaware corporation, and PIONEER CHLOR
ALKALI COMPANY, INC., a Delaware corporation.
WHEREAS, pursuant to the Asset Purchase Agreement (as such term and
certain other terms used in this Agreement with the initial capital letters are
defined or incorporated by reference in Article I), the Parties have provided
for the sale by OCC Tacoma, and the purchase by Pioneer, of OCC Tacoma's
chloralkali manufacturing facility located at Tacoma, Washington; and
WHEREAS, after the sale of the Tacoma Plant to Pioneer, Pioneer desires
to sell and deliver to OCC Tacoma, and OCC Tacoma desires to take and pay for,
certain quantities of chlorine for a limited period of time; and
WHEREAS, OCC Tacoma is a wholly-owned subsidiary of OxyChem; and
WHEREAS, the Parties are entering into this Agreement in accordance
with the provisions of the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
benefits and agreements hereinafter set forth, the Parties do hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated below (such meanings to be equally applicable to both the singular
and the plural forms of the terms defined). Capitalized terms not otherwise
specifically defined herein shall have the meanings assigned to them in the
Asset Purchase Agreement.
"Affiliate" means any Person that is an "affiliate" within the meaning
of the regulations promulgated under the Securities Act of 1933, as amended,
as such regulations and Act shall be amended and in effect on the date of this
Agreement.
"Agreement" means this Chlorine Purchase Agreement, as the same may be
amended pursuant to the provisions hereof.
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"Asset Purchase Agreement" means the Asset Purchase Agreement, dated as
of May 14, 1997, between OCC Tacoma and Pioneer.
"chlorine" means liquid chlorine having the specifications set forth in
Appendix A to this Agreement. All references to quantities of chlorine in this
Agreement shall be in units of short tons.
"Claim" has the meaning specified in Section 10.1.
"Delivery Points" has the meaning specified in Section 6.1(a).
"Indemnified Party" has the meaning specified in Section 10.2.
"Indemnifying Party" has the meaning specified in Section 10.2.
"Initial Year" means the twelve-month period of time beginning with the
first day of the month in which this Agreement shall become effective.
"Losses" has the meaning specified in Section 10.1.
"month" means a calendar month.
"OCC Tacoma" means OCC Tacoma, Inc., a Delaware corporation.
"Oxy Accountant" means Xxxxxx Xxxxxxxx LLP or such other nationally
recognized accounting firm as shall be selected by OxyChem.
"OxyChem" means Occidental Chemical Corporation, a New York
corporation.
"Party" means Pioneer or OCC Tacoma, as applicable, and "Parties" means
Pioneer and OCC Tacoma.
"Person" means any natural person, corporation, limited liability
company, partnership, group, joint venture, trust, association or other
business enterprise or organization or any government or agency or political
subdivision thereof or any other entity.
"Pioneer" means Pioneer Chlor Alkali Company, Inc., a Delaware
corporation.
"Pioneer Accountant" means Deloitte & Touche LLP or such other
nationally recognized accounting firm as shall be selected by Pioneer.
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"Price" means the price of chlorine determined in accordance with the
provisions of Article V.
"short ton" means two thousand (2000) pounds.
"Superfund Assessment" means the assessment on the production and sale
of chlorine imposed pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, as the same may be from time to time amended or
reauthorized and in effect.
"Tacoma Plant" means the chloralkali manufacturing facility acquired by
Pioneer pursuant to the Asset Purchase Agreement and located at 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxx.
"Term" has the meaning specified in Section 4.1.
"VCM" means vinyl chloride monomer.
"year" or "yearly" means the Initial Year and, thereafter, any
consecutive twelve-month period beginning on the first day of the month in
which this Agreement shall become effective.
ARTICLE II
COMMITMENTS OF PURCHASE AND SALE
SECTION 2.1 Purchase Commitment. Upon the terms and subject to the
conditions set forth in this Agreement, each year during the Term, OCC Tacoma
agrees to take and purchase from Pioneer the quantity of chlorine hereinafter
described and at the Price hereinafter set forth.
SECTION 2.2 Sales Commitment. Upon the terms and subject to the
conditions set forth in this Agreement, each year during the Term, Pioneer
agrees to deliver and sell to OCC Tacoma the quantity of chlorine hereinafter
described and at the Price hereinafter set forth.
ARTICLE III
QUANTITY
SECTION 3.1 Pioneer's Annual Volume Options. Subject to the
requirements of Section 3.3(a), during each year of the Term of this Agreement,
Pioneer may require OCC Tacoma to take and purchase from Pioneer all or any
portion of the quantity of chlorine specified below as applicable for that
year.
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YEAR INITIAL 2 3 4 5
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Volumes 100,000 100,000 75,000 50,000 25,000
(short tons)
SECTION 3.2 OCC Tacoma's Annual Volume Options. Subject to the
requirements of Section 3.3(b), during each year of the Term of this Agreement,
OCC Tacoma may require Pioneer to deliver and sell to OCC Tacoma all or any
portion of the quantity of chlorine specified below as applicable for that
year.
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YEAR INITIAL 2 3 4 5
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Volumes 100,000 100,000 75,000 0 0
(short tons)
SECTION 3.3 Notification of Annual Quantities.
(a) Not less than one hundred twenty (120) days prior to the end of
the Initial Year and year 2, Pioneer shall submit to OCC Tacoma, in writing, a
binding notification of the quantity of chlorine which Pioneer elects to
require OCC Tacoma to take and purchase from Pioneer, pursuant to Section 3.1,
during the following year. The quantity specified in such notice shall not
exceed the maximum quantity which Pioneer may elect to require OCC Tacoma to
take and purchase from Pioneer for such year as specified in Section 3.1. The
quantity which OCC Tacoma shall take and purchase from Pioneer in the Initial
Year shall be 100,000 short tons. With respect to the quantity of chlorine
which Pioneer elects to require OCC Tacoma to take and purchase from Pioneer,
pursuant to Section 3.1, during year 4 and year 5, Pioneer shall submit the
notices described below:
(i) Not later than September 30, 1999, Pioneer shall provide the
notice described in Section 3.3(a) with respect to the quantity of chlorine
which Pioneer elects to require OCC Tacoma to take and purchase from Pioneer,
pursuant to Section 3.1, during the period beginning on the first day of year 4
and ending on December 31 thereafter. The quantity of chlorine specified in
such notice shall not exceed an amount determined by multiplying 50,000 by a
fraction, the numerator of which is the number of days from the beginning of
year 4 to December 31 thereafter and the denominator of which is 365.
(ii) Not later than September 30, 2000, Pioneer shall provide the
notice described in Section 3.3(a) with respect to the quantity of chlorine
which Pioneer elects to require OCC Tacoma to take and purchase from Pioneer,
pursuant to Section 3.1, during the period (A) beginning on January 1, 2001 and
ending on the last day of year 4, and (B) beginning on the first day of year 5
and ending on December 31 thereafter. The quantities of chlorine specified in
such
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notice shall not exceed, in the case of (A) above, an amount determined by
multiplying 50,000 by a fraction, the numerator of which is the number of days
from January 1, 2001 to the last day of year 4 and the denominator of which is
365. The quantities of chlorine specified in such notice shall not exceed, in
the case of (B) above, an amount determined by multiplying 25,000 by a
fraction, the numerator of which is the number of days from the first day of
year 5 to December 31 thereafter and the denominator of which is 365.
(iii) Not later than September 30, 2001, Pioneer shall provide the
notice described in Section 3.3(a) with respect to the quantity of chlorine
which Pioneer elects to require OCC Tacoma to take and purchase from Pioneer,
pursuant to Section 3.1, during the period beginning on January 1, 2002 and
ending on the last day of year 5. The quantity of chlorine specified in such
notice shall not exceed an amount determined by multiplying 25,000 by a
fraction, the numerator of which is the number of days from January 1, 2002 to
the last day of year 5 and the denominator of which is 365.
(b) Not less than one hundred twenty (120) days prior to the end of the
Initial Year and year 2, OCC Tacoma shall submit to Pioneer, in writing, a
binding notification of the quantity of chlorine which OCC Tacoma elects to
require Pioneer to deliver and sell to OCC Tacoma, pursuant to Section 3.2,
during the following year. The quantity specified in such notice shall not
exceed the maximum quantity which OCC Tacoma may elect to require Pioneer to
deliver and sell to OCC Tacoma for such year as specified in Section 3.2. The
quantity which Pioneer shall deliver and sell to OCC Tacoma in the Initial Year
shall be 100,000 short tons.
(c) The quantities of chlorine nominated by each Party pursuant to the
provisions of Sections 3.3(a) and 3.3(b) for each of the two years which
succeed the Initial Year shall not be aggregated for purposes of determining
the total quantity of chlorine to be purchased and sold by the Parties during
any year. For any year (other than the Initial Year), the higher of such
quantity nominations shall constitute the total volume of chlorine to be
purchased and sold by the Parties for such year pursuant to this Agreement.
SECTION 3.4 Priority of Obligations Under this Agreement. The
obligations of the Parties to sell and purchase chlorine pursuant to this
Agreement shall have priority over the Parties' obligations to sell and
purchase chlorine to or from any other Person, whether pursuant to a written
agreement or otherwise (including, without limitation, the Parties' internal
requirements). Subject to Section 11.1, the Parties' rights and obligations to
purchase and sell chlorine pursuant to the provisions of this Agreement shall
not be subject to allocation among other customers, suppliers or the Parties'
internal requirements.
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ARTICLE IV
TERM
SECTION 4.1 Term of this Agreement. The term (the "Term") of this
Agreement shall commence, and this Agreement shall become effective, on the
date of the Closing and shall terminate on the last day of the month prior to
the fifth anniversary of the Closing.
ARTICLE V
PRICE
SECTION 5.1 Price of Chlorine. Each calendar quarter during the Term,
the price (the "Price") of chlorine sold by Pioneer to OCC Tacoma hereunder,
expressed in dollars per short ton, shall be an amount equal to the weighted
average price (net of freight charges actually incurred and paid) per short
ton for all chlorine sold by OxyChem to non-Affiliate U.S. Gulf Coast contract
customers for the manufacture of VCM during the immediately preceding calendar
quarter. The Price of chlorine sold hereunder shall be determined as of the
date of shipment.
SECTION 5.2 Notification of the Price; Payment.
(a) Not later than the twentieth (20th) day of the first month of
each calendar quarter during the Term (other than the initial calendar quarter),
OCC Tacoma shall provide to Pioneer a written notification of the Price
applicable to chlorine during the preceding calendar quarter and which shall be
the Price applicable to chlorine sold to OCC Tacoma during the then current
calendar quarter pursuant to this Agreement. At all times during the Term,
Pioneer shall take such measures, and implement and utilize such procedures, as
will ensure that access to the Price applicable to chlorine sold to OCC Tacoma
pursuant to this Agreement (i) will be limited to employees of Pioneer who have
a need to know such information for the purpose of discharging Pioneer's
financial and accounting obligations, and (ii) will not be provided to (A) any
personnel of Pioneer or any of its Affiliates who exercise any pricing, sales or
marketing responsibilities for, or on behalf of, Pioneer or any such Affiliate,
or (B) any director, officer or employee of Pioneer or any such Affiliates who
does not have a need to know such Price for the purpose of discharging Pioneer's
financial and accounting obligations.
(b) The foregoing obligations of confidence, nondisclosure and
non-use shall not apply to any information that (i) was in the public domain at
the time of disclosure by OxyChem or any of its Affiliates to Pioneer; (ii)
enters the public domain through no fault of Pioneer; (iii) was communicated to
Pioneer by any other Person free of any obligation of confidence; or (iv) was
developed by officers, employees or agents of or consultants to Pioneer
independently of and without reference to the proprietary information of
OxyChem. The Price of chlorine sold hereunder, shall not be deemed to be within
the public domain, or communicated free of any obligation of confidence, for
purposes of the provisions of this paragraph simply because it is known by the
U.S. Gulf Coast contract customers of OCC Tacoma or OxyChem.
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(c) The Price of chlorine which shall be in effect for the initial
calendar quarter, or portion thereof if this Agreement is not effective as of
the first day of the initial calendar quarter, shall be determined as provided
in Section 5.1 above, using the Price applicable to chlorine during the
calendar quarter immediately preceding the calendar quarter in which this
Agreement shall become effective.
(d) Pioneer shall invoice OCC Tacoma on the date of shipment for
each shipment of chlorine delivered during the preceding month at the Price
specified by OCC Tacoma as applicable during such period pursuant to this
Article V. Payment terms for Pioneer's invoice shall be net thirty (30) days
from the date of the invoice with OCC Tacoma to pay interest (not to exceed the
maximum lawful rate) on any amounts past due in accordance with Pioneer's
standard terms and conditions for like customers, a copy of which is attached
as Appendix C to this Agreement. Shipments made in a calendar quarter prior to
OCC Tacoma's notification of Price pursuant to Section 5.2(a) shall be invoiced
at the Price applicable to shipments during the prior calendar quarter. Within
five (5) days after receipt of such notice from OCC Tacoma, Pioneer shall send
a statement to OCC Tacoma reflecting any adjustments to invoices which are
necessary to conform to the Price for the then current quarter. All amounts
due as shown by such statement shall be reflected in Pioneer's invoices for next
succeeding shipments hereunder.
SECTION 5.3 Pioneer's Right to Audit. Within sixty (60) days
following any quarterly notification by OCC Tacoma of the Price pursuant to the
provisions of Section 5.2, and upon not less than fifteen (15) days' notice in
advance by Pioneer, OCC Tacoma shall permit, and shall cause OxyChem to permit,
the Oxy Accountant to have access to and examine OCC Tacoma's and OxyChem's
books and records sufficient to permit the verification of the calculation of
the Price of chlorine in effect during such calendar quarter. The Oxy
Accountant shall report to Pioneer its conclusion concerning the accuracy of
OCC Tacoma's calculations of the foregoing items, and, if inaccurate, what the
Oxy Accountant considers to be a correct adjustment. OxyChem shall instruct
the Oxy Accountant not to disclose any additional information to Pioneer. The
reasonable cost of such audit shall be borne by Pioneer, provided, however,
that, if any such audit results in a finding that an adjustment of more than
one percent (1%) to the Price of chlorine is required to comply with the
provisions of Section 5.1, then the cost of such audit shall be borne by OCC
Tacoma.
ARTICLE VI
DELIVERY
SECTION 6.1 Shipping Instructions.
(a) Subject to the provisions of Section 11.1(a), all shipments of
chlorine hereunder shall be delivered by Pioneer from the Tacoma Plant, or such
other shipping point as the Parties may agree, to OxyChem's facility in
Ingleside, Texas, or such other locations as shall be mutually agreed by the
Parties (collectively, the "Delivery Points").
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(b) Fifteen (15) days prior to the first day of each month (other
than the initial month of the Term), OCC Tacoma shall furnish to Pioneer, in
writing, non-binding shipping instructions which shall include an estimate of
the quantities of chlorine to be shipped, and the Delivery Point for each
shipment, and, pursuant to Section 6.3, the freight arrangements for shipments,
during each of the next three months. Such instructions and estimates for the
month immediately following such notice shall be final.
(c) The quantities of chlorine to be shipped, and the Delivery Points
and, pursuant to Section 6.3, the freight arrangements for shipments during the
initial month of the Term are specified in Appendix B to this Agreement.
(d) Unless otherwise specifically agreed by the Parties, Pioneer
shall not be required to deliver, nor shall OCC Tacoma be required to receive,
during any month, more than one-tenth of the total quantity of chlorine to be
purchased and sold by the Parties during the then current year.
SECTION 6.2 Title and Risk of Loss. Title and risk of loss of any
chlorine delivered hereunder shall pass to OCC Tacoma upon actual placement by
the railroad at the Delivery Point of the tank car containing such chlorine.
SECTION 6.3 Transportation Costs.
(a) For each shipment of chlorine pursuant to this Agreement during
the Initial Year and the two consecutive years after the Initial Year, in
addition to the Price for such chlorine, OCC Tacoma shall be responsible for
the actual freight cost incurred in shipping such chlorine from the Tacoma
Plant, or such other shipping point as the Parties may agree, to the designated
Delivery Points. OCC Tacoma may, at its sole option, and upon five business
days' prior notice, elect (i) to require Pioneer to ship chlorine on a freight
prepaid and collect basis, or (ii) to arrange directly with a provider of
transportation services for the shipment of such chlorine. In the case of
clause (i) above, the freight costs shall be added to Pioneer's invoice for
chlorine and such invoice shall be paid by OCC Tacoma as provided in Section
5.2. In the case of clause (ii) above, OCC Tacoma shall be responsible to pay
the applicable transportation charges directly to the transportation service
provider and Pioneer shall have no liability for such costs.
(b) For each shipment of chlorine pursuant to this Agreement during
the fourth and fifth years of the Term, in addition to the Price for such
chlorine, OCC Tacoma shall be responsible for fifty percent (50%) of the actual
freight cost incurred in shipping such chlorine from the Tacoma Plant, or such
other shipping point as the Parties may agree, to the designated Delivery
Points and Pioneer shall be responsible for the remaining fifty percent (50%)
of such freight cost. OCC Tacoma may, at its sole option, and upon five
business days' prior notice, elect (i) to require Pioneer to ship chlorine on a
freight prepaid and collect basis, or (ii) to arrange directly with a provider
of transportation services for the shipment of such chlorine. In the case of
clause (i) above, fifty percent (50%) of the freight costs shall be added to
Pioneer's invoice for chlorine and such invoice shall be paid by OCC Tacoma as
provided in Section 5.2. In the case of
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clause (ii) above, OCC Tacoma shall be responsible to pay the applicable
transportation charges directly to the transportation service provider and
shall receive a credit of fifty percent (50%) of such transportation charges
against Pioneer's invoice with respect to such chlorine.
(c) OCC Tacoma shall pay any applicable rail car demurrage charges in
accordance with Pioneer's standard terms and conditions, attached as Appendix C
to this Agreement.
(d) Pioneer and OCC Tacoma shall cooperate in exercising reasonable
commercial efforts to reduce net transportation costs on shipments of chlorine
pursuant to this Agreement.
(e) Regardless of the manner in which freight costs are allocated in
this Agreement, all chlorine sold by Pioneer pursuant to this Agreement shall
be delivered in rail cars owned or leased by Pioneer. OCC Tacoma shall have no
responsibility to provide or otherwise to make rail cars available to Pioneer
for the shipment of chlorine pursuant to this Agreement, nor, except as
otherwise provided in this Agreement, for any cost or expense in connection
therewith.
SECTION 6.4 OCC Tacoma's Right to Audit Certain Transportation
Charges. Within sixty (60) days following the receipt of any invoice from
Pioneer which includes transportation charges to be reimbursed by OCC Tacoma
pursuant to Section 6.3(a)(i) or Section 6.3(b)(i), and upon not less than
fifteen (15) days' prior notice by OxyChem, Pioneer shall permit the Pioneer
Accountant to have access to and examine Pioneer's books and records sufficient
to permit the verification of the transportation charges reflected on such
invoice. The Pioneer Accountant shall report to OCC Tacoma its conclusion
concerning the accuracy of Pioneer's invoice in respect of such transportation
charges, and, if inaccurate, what the Pioneer Accountant considers to be a
correct adjustment. Pioneer shall instruct the Pioneer Accountant not to
disclose any additional information to OCC Tacoma. The reasonable cost of such
audit shall be borne by OCC Tacoma, provided, however, that if any such audit
results in a finding that an adjustment of more than one percent (1%) to the
invoice in respect of such transportation charges is required to comply with the
provisions of Section 6.3, then the cost of such audit shall be borne by
Pioneer.
ARTICLE VII
MEASUREMENT
SECTION 7.1 Rail Car Delivery.
(a) If chlorine is delivered in rail tank cars loaded at the Tacoma
Plant, the quantity of chlorine shall be determined by rail tank car weigh
scales or other mutually agreed measuring device which shall be operated,
maintained and regularly calibrated by Pioneer in accordance with accepted
industry practice. Pioneer's weights and measures shall govern except in case
of demonstrated error.
(b) If chlorine is delivered in rail tank cars loaded by a third
party, the quantity of chlorine so delivered shall be determined by rail tank
car weigh scales or other measuring device
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employed in connection with the loading of such rail cars in accordance with
accepted industry practice. Third party weights and measures shall govern
except in case of demonstrated error.
SECTION 7.2 Calibration of Measuring Devices.
(a) In respect of any chlorine delivered hereunder the quantity of
which is measured by devices operated by Pioneer, Pioneer shall give OCC Tacoma
at least three (3) days' prior notice of any calibration test to be performed
on any such device, and OCC Tacoma may elect to have a representative present
at any such test. If a level of inaccuracy is determined by such test at plus or
minus one percent (1%) or more of full scale, Pioneer shall restore the
measuring device to a condition of accuracy, and xxxxxxxx shall be corrected
for any shipment(s) known to be affected by such inaccuracy.
(b) In respect of any chlorine delivered hereunder the quantity of
which is measured by devices operated by a third party, Pioneer shall exercise
reasonable commercial efforts to afford to OCC Tacoma (i) at least (3) days'
prior notice of any calibration test (of which Pioneer has advance knowledge)
to be performed on any such device, and (ii) an opportunity for OCC Tacoma to
have a representative present at any such test. If a level of inaccuracy is
determined by such test at plus or minus one percent (1%) or more of full
scale, Pioneer's xxxxxxxx to OCC Tacoma shall be corrected for any shipment(s)
known to be affected by such inaccuracy.
ARTICLE VIII
WARRANTIES; LIMITATIONS OF CLAIMS
SECTION 8.1 Pioneer's Warranty. PIONEER'S SOLE AND EXCLUSIVE
WARRANTY IS THAT THE CHLORINE COMPLIES WITH THE PHYSICAL AND CHEMICAL
SPECIFICATIONS SET FORTH IN APPENDIX A TO THIS AGREEMENT. PIONEER MAKES NO
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER WITH RESPECT TO ITS
RECOMMENDATIONS, INSTRUCTIONS, PRODUCT APPARATUS, PROCESS OR OTHERWISE AND
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, WHETHER OF MERCHANTABILITY,
SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
SECTION 8.2 Patents. Pioneer's recommendations or instructions
pursuant to this Agreement are not intended to suggest operations which would
infringe any patents, and Pioneer assumes no liability to OCC Tacoma of any
kind or responsibility for any such infringement pursuant to this Agreement.
SECTION 8.3 Packaging, Uses and Safe Handling. Pioneer shall
properly package and label chlorine for shipment pursuant to applicable
statutes, rules and regulations.
SECTION 8.4 Emergency Response. During the Term of this Agreement,
Pioneer shall maintain and implement emergency response procedures which are in
accordance with the requirements of applicable statutes, rules and regulations
governing the transportation and
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unloading of chlorine or, if more stringent, standards representing current
industry practice for the transportation and unloading of chlorine, in order to
respond to (a) a release or threatened release of chlorine en route to the
Delivery Points pursuant to this Agreement, and (b) a release or threatened
release of chlorine occurring during the process of unloading chlorine at the
Delivery Points pursuant to this Agreement (other than any Delivery Point owned
or operated by OxyChem or its Affiliates) and which is attributable to any
defect in the vehicle or vessel used to deliver such chlorine.
SECTION 8.5 Quality Claims; Liability. OCC Tacoma shall be deemed to
have waived all claims with respect to any chlorine sold hereunder for which
OCC Tacoma's notice of insufficient quality has not been given to Pioneer in
writing within forty-five (45) days of the receipt of such chlorine. As to any
claim of any nature with respect to the quality of chlorine sold under this
Agreement, whether in contract, tort, strict liability or otherwise, the
liability of Pioneer and its Affiliates shall not exceed the Price of the
portion of the chlorine in respect of which such claim is made plus any freight
costs or other transportation charges thereon paid by OCC Tacoma. Each such
claim shall also be subject to the limitations of Section 12.2.
ARTICLE IX
TAXES
SECTION 9.1 Responsibility for Taxes. In addition to the Price and any
transportation charges OCC Tacoma is required to pay to Pioneer hereunder, OCC
Tacoma shall pay to Pioneer the amount of all governmental taxes, excises,
duties, and/or other charges (including, without limitation, Superfund
Assessments, and excepting (i) taxes (and any interest, additions to tax or
penalties imposed in connection therewith) on or measured by Pioneer's net
income, gross receipts, profits, net worth, shareholder capital, net taxable
capital, net taxable earned surplus, or asset value, and (ii) any taxes (and
any interest, additions to tax or penalties imposed in connection therewith)
imposed on or in respect of equipment used to produce or transport chlorine)
that Pioneer may be required to pay with respect to the sale or transportation
of the quantities of chlorine sold and delivered hereunder and which are
standard in the industry and generally applicable to other purchasers of
chlorine. Such charges shall be added to Pioneer's invoice as a separate line
item and shall be paid by OCC Tacoma pursuant to Section 5.2, provided, that
Pioneer furnishes to OCC Tacoma satisfactory written evidence of the amount and
timely payment of such charges. Pioneer and OCC Tacoma will cooperate so as to
minimize any sales and use taxes imposed by any state or local governmental
authority including, without limitation, the prompt execution and delivery of
any necessary exemption certificates required to reduce or claim complete
exemption from any tax.
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ARTICLE X
LIABILITY AND RESPONSIBILITY
SECTION 10.1 Allocation of Liability.
(a) Except to the extent caused by any breach of OCC Tacoma's
obligations hereunder, any act or omission of OCC Tacoma, its agents or
contractors, or any condition, event or action occurring after the time the tank
car is constructively or actually placed at the Delivery Point ("Delivery Time")
which is caused by any Person other than Pioneer, Pioneer assumes full
responsibility for any liability arising out of the manufacture, handling,
storage, loading, transportation and, to the extent attributable to any defect
in the vehicle or vessel used to deliver chlorine, the unloading of any chlorine
sold hereunder and compliance or non-compliance with any law or regulations
relating thereto, including, without limitation, laws or regulations with
respect to the protection of health, safety and the environment. With respect to
matters for which Pioneer is liable under the preceding sentence, Pioneer shall
defend, indemnify and hold harmless OCC Tacoma, its Affiliates, and their
respective officers, directors, representatives and employees from and against
all losses, liabilities, damages and expenses ("Losses") made against or
incurred by OCC Tacoma, its Affiliates, or their respective officers, directors,
representatives and employees arising out of any claim, suit or proceeding
("Claim") by any governmental agency or any third party which alleges death,
personal or economic injury, or damages to, or spills or releases on or into,
any private or public property, resources or the environment, to the extent
caused or contributed to by chlorine sold hereunder.
(b) Except to the extent caused by any breach of Pioneer's
obligations hereunder, any act or omission of Pioneer, its agents or
contractors, or any condition, event or action occurring prior to the Delivery
Time which is caused by any Person other than OCC Tacoma, OCC Tacoma assumes
full responsibility for any liability arising out of the handling, storage and
unloading of any chlorine sold hereunder and compliance or non-compliance with
any law or regulations relating thereto, including, without limitation, laws or
regulations with respect to the protection of health, safety and the
environment, provided, however, that OCC Tacoma shall have no responsibility for
any liability arising out of the unloading of any chlorine sold hereunder which
is attributable to any defect in the vehicle or vessel used to deliver such
chlorine. With respect to matters for which OCC Tacoma is liable under the
preceding sentence, OCC Tacoma shall defend, indemnify and hold harmless
Pioneer, its Affiliates, and their respective officers, directors,
representatives and employees from and against all Losses made against or
incurred by Pioneer, its Affiliates, or their respective officers, directors,
representatives and employees arising out of any Claim by any governmental
agency or any third party which alleges death, personal or economic injury, or
damages to, or spills or releases on or into, any private or public property,
resources or the environment, to the extent caused or contributed to by
chlorine sold hereunder.
(c) Neither Party shall be liable for claims of the employees,
contractors or agents of the other Party who are subject to workers'
compensation laws. Notwithstanding anything to the contrary herein, neither
Party shall be responsible for protection of the employees, agents or
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contractors of the other Party or liable for any failure to provide such
protection, including, without limitation, compliance with occupational safety
laws.
SECTION 10.2 Procedures for Indemnification.
(a) Promptly (and in any event within thirty (30) days) after a
Party or Parties to be indemnified (whether one or more, the "Indemnified
Party") receives notice of any Claim covered by Section 10.1, the Indemnified
Party shall, if a Claim in respect thereof is to be made pursuant to Section
10.1, notify the Party from whom indemnification is sought (the "Indemnifying
Party") in writing of such Claim; provided, however, that the failure to so
notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which it may have to the Indemnified Party pursuant to Section
10.1, except to the extent of any material detriment suffered by the
Indemnifying Party as a result of such failure. The amount of each Claim for
indemnity, together with a list identifying each separate item of Loss to the
extent known, shall be set forth in the Claim notice delivered to the
Indemnifying Party. In the event that a Claim arises out of, or results from,
Claims of third parties, the Indemnifying Party may at its option undertake the
defense thereof by counsel or representatives chosen by it which are reasonably
acceptable to the Indemnified party. The Indemnifying Party shall have the sole
right to compromise or settle any such Claim if (i) such settlement or
disposition shall impose no material obligation or burden whatsoever on the
Indemnified Party which is not wholly discharged by the Indemnifying Party and
shall provide a full release to the Indemnified Party, and (ii) the
Indemnifying Party shall be fully capable of performing its obligations
pursuant to such settlement or disposition. Each of the Indemnifying Party and
the Indemnified Party shall be entitled to consult with each other, to the
extent it reasonably requests, in respect of the defense of such Claim and shall
cooperate in the defense of any such Claim, including making its officers,
directors, employees and books and records available for use in defending
against such Claim, and it shall take those commercially reasonable actions
within it power which are necessary to preserve any legal defenses to such
matters.
(b) If the Indemnifying Party, within a reasonable time after
notice of any third party Claim, fails to undertake the defense of such Claim,
the Indemnified Party will, by notice to the Indemnifying Party of its intent
to do so, have the right to undertake the defense of such Claim with counsel or
representatives chosen by it which are reasonably acceptable to the Indemnifying
Party. The Losses of the Indemnified Party shall include the reasonable costs
and expenses incurred in any such defense of a third party's Claim.
Notwithstanding the foregoing, the Indemnified Party shall have no right to
settle or compromise any such Claim without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
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ARTICLE XI
EXCUSE OF PERFORMANCE
SECTION 11.1 Excuse of Performance.
(a) Performance of any obligation under this Agreement may be
suspended by either Party without liability, to the extent that: an Act of God;
war; riot; fire; explosion; accident; flood; sabotage; mechanical breakdown;
involuntary plant shutdown; governmental laws, regulations or orders; or any
other cause (except financial) beyond the reasonable control of such Party; or
any labor trouble, strike, walkout, lockout or injunction (whether or not such
labor event is within the reasonable control of such Party), delays, prevents,
restricts, or limits the performance of, this Agreement or the consumption,
sale or use of chlorine, provided however, that if any of the foregoing events
shall delay, prevent, restrict or limit OCC Tacoma's ability to receive
chlorine at Ingleside, Texas, then for the first thirty days of any such period
of suspension, OCC Tacoma shall not be relieved of its obligations under this
Agreement to the extent that no such event delays, prevents, restricts or
limits the ability of OCC Tacoma or any of its Affiliates to receive chlorine
at any other State of Texas or Gulf Coast delivery point. The affected Party
may invoke this provision by promptly notifying the other Party in writing of
the nature and estimated duration of the suspension period and shall exercise
all reasonable diligence in curing such condition.
(b) In the event that either Party exercises its right to suspend
performance hereunder, the Term of this Agreement and the obligations of the
Parties to purchase and sell chlorine hereunder allocable to such period that
performance is suspended shall be extended one day for each day of such
suspension provided that the suspension shall not exceed 30 days. In the event
that such suspension is great than 30 days but less than 180 days, this
Agreement shall remain in effect with the obligations of the Parties to
purchase and sell chlorine hereunder suspended and an amount of chlorine
determined by multiplying the annual volume of chlorine to be delivered and
received in the year in which the suspension of performance occurs (as fixed
pursuant to Section 3.3) by a fraction, the numerator of which is the number of
days in which performance is suspended (less thirty days in the case of OCC
Tacoma) and the denominator of which is 365, deducted from the obligations
contained herein to purchase and sell. If any such suspension lasts more than
180 days, the Party as to whom performance of its obligations under this
Agreement has not been suspended may terminate this Agreement by providing the
other Party written notice of its intent to terminate.
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 Default and Remedies.
(a) In the event that: (i) OCC Tacoma shall fail to pay any invoice
in accordance with the terms of this Agreement, (ii) any Party shall fail, in
any material respect, in the due
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performance or observance by it of any of the terms, covenants or agreements
contained in this Agreement, or (iii) any Party shall become or be adjudicated
insolvent, bankrupt, or if a receiver or trustee shall be appointed for any
Party or its property or a petition for reorganization or arrangement under any
bankruptcy or insolvency law shall be approved, or an assignment shall be made
for the benefit of creditors of any Party, or any Party shall file a voluntary
petition in bankruptcy or shall consent to the appointment of a receiver or
trustee, this Agreement shall, in the case of a default under clause (iii),
immediately terminate, and in the case of a default under clause (i) or (ii),
the non-defaulting Party shall have the right, at its sole discretion, to
terminate this Agreement if the defaulting Party shall have failed to (A) cure
the default within twenty (20) days of written notice of default, or (B) except
in the case of a default under clause (i), diligently pursue the curing of the
default, which termination remedy shall be in addition to all of its remedies at
law or in equity, including, without limitation, those set forth in Section
12.1(b), to recover damages by reason of such default. In the event of any such
termination, all sums then owing by any Party under this Agreement shall become
and be immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Parties.
(b) The Parties agree that the covenants and obligations contained
in this Agreement relate to special, unique and extraordinary matters and that
a violation of any of the terms hereof would cause irreparable injury in an
amount which would be difficult or impossible to estimate or determine and for
which any remedy at law would be inadequate. As such, the Parties agree that if
either Party fails or refuses to fulfill any of its obligations under this
Agreement or to make any payment hereunder, then the other Party shall have the
remedy of specific performance, which remedy shall be cumulative and
nonexclusive and shall be in addition to any other rights and remedies
otherwise available at law or in equity and to which such Party might be
entitled.
SECTION 12.2 Certain Damages Excluded. In no event shall either
Party to this Agreement, or its Affiliates, have any liability to the other
Party, or its Affiliates, for any (i) loss of business opportunities or for
speculative or prospective profits, or (ii) special, indirect, consequential,
incidental or punitive damages, provided, however, that in the event of any
breach or failure by OCC Tacoma to take and purchase the quantities of chlorine
provided for hereunder, Pioneer shall be entitled to recover the difference, if
any, between amounts realized from any sale in mitigation of damages resulting
form such breach or failure in performance by OCC Tacoma and the amount that
would have been realized by Pioneer but for such breach or failure in
performance by OCC Tacoma, plus freight costs actually incurred by Pioneer and
which otherwise would have been payable by OCC Tacoma pursuant to the
provisions of this Agreement.
SECTION 12.3 Duty to Mitigate. Each Party shall take all such
reasonable actions as may be necessary to mitigate damages for which such Party
may claim damages or indemnification under this Agreement, provided, however,
that in no event shall Pioneer be obligated to sell and deliver chlorine
committed for but not taken and purchased by OCC Tacoma to other than delivery
points east of the Rocky Mountains.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, by operation of
law or otherwise (other than as a result of any merger or consolidation), by
any Party without the prior express written consent of the other Party;
provided, however, that, notwithstanding the foregoing, (i), in connection with
the sale of the Tacoma Plant as a whole, or any sale of the properties and
assets of any Party substantially as an entirety, to any Person, the Party
making such sale may assign this Agreement, or its rights hereunder, to such
Person, (ii) any Party may assign this Agreement, or its rights hereunder, to
any Affiliate of such Party, and (iii) Pioneer shall have the right to
collaterally assign its rights under this Agreement to any bank, financial
institution or other lender (or any such entity acting as an indenture trustee
on behalf of any Person) that provides financing in connection with (x) the
transactions contemplated by the Asset Purchase Agreement or any Related
Agreement (including any renewal, extension or rearrangement of such financing)
or (y) working capital financing for Facility Operations, provided, however,
that no such collateral assignment shall release, discharge or otherwise excuse
Pioneer from the performance of its obligations under this Agreement; provided,
further, that (A), in the case of any assignment referred to in clause (i) or
(ii) of this Section 13.1, prior to any such assignment, the Person to which
such assignment shall be made shall expressly assume, by an instrument in
writing reasonably satisfactory to OCC Tacoma or Pioneer, as the case may be,
executed and delivered to OCC Tacoma or Pioneer, as the case may be, the
performance and observance of every obligation, covenant and agreement in this
Agreement on the part of the Party making such assignment to be performed or
observed, and (B) no such assignment shall have the effect of releasing such
Party on any other Person (including any such additional Party) from its
obligations, covenants or agreements under this Agreement.
SECTION 13.2 Entire Agreement; Amendment. This Agreement embodies the
entire agreement of the Parties hereto with respect to the subject matter
hereof and supersedes all prior understandings and agreements with respect
thereto. This Agreement may be amended, and any provision hereof waived, but
only in writing signed by the Party against whom such amendment or waiver is
sought to be enforced. No waiver by any Party of any default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any such occurrence. Neither
the failure nor any delay by any Party in exercising any right, power or
privilege under this Agreement will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or
privilege will preclude any further or other exercise of such right, power or
privilege or the exercise of any other right, power or privilege.
SECTION 13.3 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Washington, without
regard to principles of conflict of
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laws. The execution and delivery of this Agreement shall be deemed to be the
transaction of business within the State of Washington for purposes of
conferring jurisdiction upon courts located within the State of Washington. The
Parties agree that any court proceedings arising out of this Agreement may be
brought in the federal or state courts in the State of Washington and both
Parties consent to the jurisdiction of such courts. Each Party irrevocably
waives (a) any objection which such Party may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of, or relating
to, this Agreement brought in any such court, (b) any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum, and (c) the right to object, with respect to any such
claim, suit, action or proceeding brought in any such court, that such court
does not have jurisdiction over such Party. In addition, any such suit, action
or proceeding may be brought in any court having jurisdiction pursuant to the
applicable law.
SECTION 13.4 Notices. Any notice or communication required or
permitted to be given pursuant to this Agreement shall be in writing and sent by
(i) personal delivery (including courier service), (ii) telecopier to the
number indicated below, or (iii) first class or registered or certified mail,
postage prepaid and addressed as follows (any such notice or communication
being deemed given upon receipt).
If to OCC Tacoma:
Occidental Chemical Corporation
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Vice President - Chlorine
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Pioneer:
Pioneer Chlor Alkali Company, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Vice President - Sales and Marketing
Telephone: 000-000-0000
Facsimile: 000-000-0000
SECTION 13.5 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
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SECTION 13.6 Competition. Nothing set forth in this Agreement shall
prevent either Party or any of its Affiliates from competing with the other
Party or any of its Affiliates in the sale of chlorine to any Person.
SECTION 13.7 Headings. The Table of Contents set forth in, and the
descriptive headings of the several Articles and Sections of, this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
SECTION 13.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which when so executed shall be deemed an original,
but all of which together shall constitute one and the same instrument.
SECTION 13.9 Construction. The Parties have participated jointly in
the negotiation and drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties, and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship or
any of the provisions of this Agreement. Personal pronouns, when used in this
Agreement, whether in the masculine, feminine or neutral gender, shall include
all other genders and the singular shall include the plural and vice versa.
SECTION 13.10 Third Party Beneficiaries. EXCEPT AS PROVIDED IN
SECTION 13.1, NOTHING EXPRESSED OR IMPLIED IN THIS AGREEMENT IS INTENDED, OR
SHALL BE CONSTRUED, TO CONFER UPON OR GIVE ANY PERSON OTHER THAN THE PARTIES
HERETO AND THEIR SUCCESSORS AND PERMITTED ASSIGNS, ANY RIGHTS, REMEDIES OR
OBLIGATIONS UNDER, OR BY REASON OF, THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
SECTION 13.11 Payments. Any payments by, or on behalf of, the Parties
pursuant to any provisions of this Agreement shall be made by wire transfer of
immediately available funds to a bank account of the Party receiving such
payment at the bank used by such Party and each Party hereto shall furnish to
the other notice of the name of its bank and the number of the account thereat
to which payments shall be directed.
SECTION 13.12 Incorporation of Appendices. The Appendices identified
in this Agreement are incorporated herein by reference and made a part hereof.
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IN WITNESS WHEREOF, the Parties have, by their duly authorized
representatives, signed this Chlorine Purchase Agreement as of the day and
year first above written.
PIONEER CHLOR ALKALI COMPANY, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
OCC TACOMA, INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and
Chief Financial Officer
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