1
EXHIBIT 10.10
Form of Agreement between Great Lakes and the Registrant
for the Conversion of Feedstock.
THIS AGREEMENT is made between:
1) The Associated Octel Company Limited having its registered ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ House, Berkeley Square, London,
England W1X 6DT (the "Owner") and
2) GREAT LAKES CHEMICAL CORPORATION, having its principal place of business
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ (the
"Contractor").
WHEREAS
1) Owner desires that Contractor undertake the conversion of Feedstock (as
defined herein) to be supplied by Owner into Product (as defined herein)
using a Conversion Process (as defined herein) provided by the Owner; and
2) Contractor is willing to undertake the conversion of Feedstock supplied
by Owner into Product by use of the Conversion Process under the terms and
conditions set forth in this Agreement.
IT IS AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
The following terms shall have the following meanings:
a) "Feedstock" means the substances listed in Part 1 of Appendix A, and any
changes thereto mutually agreed in writing by the parties;
b) "Product" means Stadis (Registered Trademark)425 and Stadis (Registered
Trademark)450(Enhanced);
c) "Compensation" means the sum set forth in Appendix D representing
undepreciated capital expended by Contractor in connection with this
Agreement which shall be payable by Owner to Contractor upon
termination of this Agreement pursuant to the provisions of Section 2.6;
d) "Contractors Plant" means Contractor's manufacturing site at Newport,
Tennessee, USA;
e) "Conversion Process" means the process of Owner set out in Appendix C, and
any changes thereto mutually agreed in writing by the parties.
2
f) "Specification" means (a) with respect to Product, the properties and
respective tolerances in
Appendix B and which are verified by use of the analytical methods set
forth in Appendix B and (b) with respect to Feedstock, the properties and
respective tolerances set forth in Part 2 of Appendix A, and any changes to
(a) or (b) that are mutually agreed in writing by the parties
g) "Closure Fee" means the sums set forth in Appendix F.
h) "Contract Year" means the twelve (12) month period commencing on the
Distribution Date, and each successive 12 month period commencing on the
anniversary of the Distribution Date.
i) "Quarter" means the three month period commencing every January 1, April 1,
July 1 and October 1.
j) "Distribution Date" means the date on which Contractor distributes as a
dividend to the holders of its common stock the common stock of Octel Corp.
pursuant to the terms and conditions of the Transfer and Distribution Agreement
dated _________, 1998 between Contractor and Octel Corp.
ARTICLE 2 - DURATION; TERMINATION
2.1 This Agreement shall be deemed to have commenced on the Distribution
Date and shall continue in force until terminated by either party as
provided in Sections 2.2, 2.5, 9.4 or 9.8.
2.2 Either party may terminate this Agreement without cause on at least
twelve months' written notice to the other party; provided, however, no
such termination of this Agreement shall be effective until the
expiration of three (3) Contract Years.
2.3 Owner shall be in default if any one or more of the following events shall
happen:
(a) Owner shall fail to pay any amount due hereunder and such
failure is not cured within thirty (30) days after receipt of
Contractor's written notice to Owner; or
(b) Owner shall fail to perform or comply with any of the other
material terms or conditions of this Agreement for reasons other
than an event of Force Majeure (as defined herein) and such
failure, if curable, shall continue without cure for a period of
sixty (60) days after written notice thereof from Contractor to
Owner; or
(c) filing by Owner of a voluntary petition of bankruptcy or a
voluntary petition or answer seeking reorganization, rearrangement
or readjustment of its debts, or any relief under any bankruptcy or
insolvency act or law, now or hereafter existing, or any agreement
by Owner indicating consent to, approval of, or
3
acquiescence in, any such petition or proceeding; or
(d) the application by Owner or the consent or acquiescence of
Owner in the appointment of a receiver or trustee for all or a
substantial part of any of its properties or assets; or
(e) the making by Owner of a general assignment for the benefit
of creditors; or
(f) the admission of Owner in writing of its inability
generally to pay its debts as they mature; or
(g) the filing of an involuntary petition against Owner seeking
reorganization, rearrangement, or readjustment of its debts or for
any other relief under any bankruptcy or insolvency act or law, now
or hereafter existing, or the involuntary appointment of a receiver
or trustee for Owner for all or a substantial part of its property
or assets, or the issuance of a warrant of attachment, or execution
of similar process against a substantial part of the property of
Owner and the continuance of such for ninety (90) days undismissed
or undischarged.
2.4 Contractor shall be in default if any of one or more of the following
events happen:
(a) Contractor shall fail to perform or comply with any of the
material terms or conditions of this Agreement, for reasons other
than an event of Force Majeure, and such failure, if curable, shall
continue without cure for a period of sixty (60) days after written
notice thereof from Owner to Contractor; provided, however, that
Owner's sole remedy for Product claims shall be as provided in
Article 12 and Contractor shall not be deemed to be in breach of
this Agreement for purposes of this Section 2.4 so long as
Contractor satisfies or is disputing in good faith any claim of
Owner under Article 12; or
(b) the filing by Contractor of a voluntary petition of
bankruptcy or a voluntary petition or answer seeking
reorganization, rearrangement, or readjustment of its debts, or any
relief under any bankruptcy or insolvency act or law, now or
hereafter existing, or any agreement by Contractor indicating
consent to, approval of, or acquiescence in, any such petition or
proceeding; or
(c) the application by Contractor or the consent or
acquiescence of Contractor in the appointment of a receiver or
trustee for all or a substantial part of any of its properties or
assets; or
(d) the making by Contractor of a general assignment for the
benefit of creditors; or
(e) the admission of Contractor in writing of its inability
generally to pay its debts as they mature; or
4
(f) the filing of an involuntary petition against Contractor seeking
reorganization, rearrangement or readjustment of its debts or for
any other relief under any bankruptcy or insolvency act or law, now
or hereafter existing, or the involuntary appointment of a receiver
or trustee for Contractor for all or a substantial part of its
property or assets, or the issuance of a warrant of attachment, or
execution of similar process against a substantial part of the
property of Contractor and the continuance of such for ninety (90)
days undismissed or undischarged.
2.5 (a) Contractor may terminate this Agreement in the event of a Regulatory
Change (as defined herein) as provided in Section 9.4.
(b) Contractor may terminate this Agreement in the event Contractor
chooses not to meet a lower price offer made to and accepted by
Owner as provided in Section 9.9.
(c) Owner may terminate the Agreement, effective on notice from Owner to
Contractor, within sixty (60) days after consummation of a
transaction wherein a majority of the issued and outstanding common
stock of Contractor, or substantially all of the assets utilized by
Contractor in connection with this Agreement, including without
limitation, Contractor's Plant, are acquired, legally or
beneficially, by a corporation or other entity that competes in the
fuel additives business with Owner.
(a) Contractor may terminate this Agreement if it is prevented from
increasing the Conversion Charge as provided in Section 9.8.
(b) This Agreement may be terminated by either party due to a Force
Majeure as provided in Article 8.
(c) Upon the occurrence of any event of default (as defined in Sections
2.3 and 2.4), and during the continuance thereof, the non-defaulting
party, at its option, and without prejudice to other lawful remedies
which may be available, may elect to terminate this Agreement upon
thirty (30) days' prior written notice, provided, however, that in
the event of the appointment of a receivor or trustee, the Agreement
may not be terminated if the receivor or trustee agrees to assume
the defaulting party's liabilities and obligations under this
Agreement.
2.6 (a) Upon termination of this Agreement in the event of the default of
Owner (as provided in Sections 2.3 and 2.5), in the event of a
change in control of Contractor (as provided in Section 2.5(c)) or
by Owner on 12 months notice (as provided in Section 2.2), (i)
Contractor shall cease to convert any further Feedstock as soon as
it is able to do so safely, although the conversion of any Feedstock
already commenced shall be completed and Owner shall pay the
Conversion Charge for resulting Product and any other Conversion
Charge due
5
and owing and all taxes and duties applicable thereto, (ii) Owner
shall pay Compensation in the amount provided in Appendix D, (iii)
Owner shall pay any sums due and owing as provided in Section 6.5,
(iv) Owner shall reimburse Contractor the full amount of any sums
not recouped by Contractor for a capital investment made in
connection with a Regulatory Change as described in Section 9.4, (v)
Owner shall reimburse Contractor the full amount of any sums not
recouped by Contractor for a capital investment made to implement a
change in the Conversion Process as described in Section 9.6(a)(ii),
(vi) Owner shall reimburse Contractor any sums advanced by
Contractor on behalf, and for the account, of Owner in connection
with Owner's obligation to purchase and supply Feedstock, and (vii)
Owner shall pay the Termination Fee set forth in Appendix F.
(b) Upon termination of this Agreement in the event of the default by
Contractor (as provided in Sections 2.4 and 2.5) or due to an event
of Force Majeure (as provided in Article 8), (i) Contractor shall
cease to convert any further Feedstock as soon as it is able to do
so safely, although the conversion of any Feedstock already
commenced shall be completed and Owner shall pay the Conversion
Charge for resulting Product and any other Conversion Charge due and
owing and all taxes and duties applicable thereto and (ii) Owner
shall reimburse Contractor any sums advanced by Contractor on
behalf, and for the account of Owner in connection with Owner's
obligation to purchase and supply Feedstock.
(a) Upon termination of this Agreement in the event of a Regulatory
Change (as provided in Section 9.4), (i) Contractor shall cease to
convert any further Feedstock as soon as it is able to do so safely,
although the conversion of any Feedstock already commenced shall be
completed and Owner shall pay the Conversion Charge for resulting
Product and any other Conversion Charge due and owing and all taxes
and duties applicable thereto,(ii) Owner shall pay Compensation in
the amount provided in Appendix D, (iii) Owner shall pay any sums
due and owing as provided in Section 6.5, (iv) Owner shall reimburse
Contractor the full amount of any sums not recouped by Contractor
for a capital investment made in connection with a Regulatory Change
(such regulatory change being earlier in time and not the Regulatory
Change that is the cause of the termination of the Agreement) as
described in Section 9.4, (v) Owner shall reimburse Contractor the
full amount of any sums not recouped by Contractor for a capital
investment made to implement a change in the Conversion Process as
provided in Section 9.6(a)(ii), (vi) Owner shall reimburse
Contractor any sums advanced by Contractor on behalf, and for the
account, of Owner in connection with Owner's obligation to purchase
and supply Feedstock, and (vii) Owner shall pay the Termination Fee
set forth in Appendix F.
(b) Upon termination of this Agreement in the event Contractor is
prevented from increasing the Conversion Charge (as provided in
Section 9.8), or by Contractor on 12 months notice (as provided in
Section 2.2), (i) Contractor shall cease to convert any further
Feedstock as soon as it is able to do so safely,
6
although the conversion of any Feedstock already commenced shall be
completed and Owner shall pay the Conversion Charge for resulting
Product and any other Conversion Charge due and owing and all taxes
and duties applicable thereto, (ii) Owner shall reimburse Contractor
any sums advanced by Contractor on behalf, and for the account of
Owner in connection with Owner's obligation to purchase and supply
Feedstock, and (iii) Owner shall pay the Termination Fee set forth
in Appendix F.
(c) Upon termination of this Agreement in the event Contractor chooses
not to meet a lower price offer (as provided in Sections 2.5 and
9.9), (i) Contractor shall cease to convert any further Feedstock as
soon as it is able to do so safely, although the conversion of any
Feedstock already commenced shall be completed and Owner shall pay
the Conversion Charge for resulting Product and any other Conversion
Charge due and owing and all taxes and duties applicable thereto,
(ii) Owner shall pay Compensation in the amount provided in Appendix
D, (iii) Owner shall reimburse Contractor the full amount of any
sums not recouped by Contractor for a capital investment made in
connection with a Regulatory Change as described in Section 9.4(a),
(iv) Owner shall reimburse Contractor the full amount of any sums
not recouped by Contractor for a capital investment made to
implement a change in the Conversion Process as described in
Section 9.6(a)(ii), (v) Owner shall reimburse Contractor any sums
advanced by Contractor on behalf, and for the account, of Owner in
connection with Owner's obligation to purchase and supply Feedstock,
and (vi) Owner shall pay the Termination Fee set forth in Appendix
F.
(d) The provisions of Section 2.6 shall not be deemed to limit in any
way the rights or remedies of either party in the event of any
default under or breach of this Agreement by the other party.
(g) Upon termination of the Agreement, Contractor shall, at Owner's
expense and at Owner's direction, dispose of all Feedstock. Upon
termination of the Agreement, Contractor shall not utilize the
Conversion Process without the written consent of Owner.
ARTICLE 3 - SUPPLY OF FEEDSTOCK
3.1 Owner shall deliver Feedstock or cause Feedstock to be delivered to
Contractor at the Contractor's Plant at no cost to Contractor and when
requested by Contractor, in quantities required by Contractor to produce
Product as contemplated herein. If Contractor discovers any failure of
Feedstock to meet the Specification, it will promptly notify Owner, who
shall be responsible for providing replacement Feedstock and reimbursing
Contractor for any costs or expenses incurred by Contractor as a result of
the non-conforming Feedstock (including, but not limited to, process
downtime costs). Each delivery of Feedstock shall be accompanied by a
certificate of analysis confirming that the Feedstock meets its
Specification. Contractor shall reasonably assist Owner
7
or Owner's nominee in the purchase of Feedstock at the most favorable
prices available.
ARTICLE 4 - CONVERSION
4.1 Contractor shall convert Feedstock delivered by or on behalf of Owner
into Product. Owner shall order and purchase one hundred percent (100%)
of its worldwide requirements of Product from Contractor. Contractor
shall supply to Owner 100% of the Product it converts by use of the
Conversion Process. Contractor's Plant shall be certified to ISO 9002 at
all times during the term of this Agreement.
4.2 Contractor shall carry out the conversion by means of the Conversion
Process. In the event of any accidental loss of Feedstock (other than the
failure to utilize Feedstock at the rate set forth in Appendix H), Product
or any intermediate in the Conversion Process, Contractor shall be liable
to (a) reimburse Owner for the value of the demonstrated actual Feedstock
content of the loss or (b) replace the demonstrated actual Feedstock
content of the loss. For purposes of a reimbursement under (a) above,
Feedstock shall be valued as set forth on Exhibit E. Contractor shall
also utilize Feedstock at the rate, and under the terms and conditions,
set forth in Appendix H.
4.3 Contractor shall permit Owner's employees, on at least 24 hours'
notice to Contractor, access during regular business hours to all
production units and data associated with the Conversion Process or with
the analysis of Product.
4.4 Contractor shall, at Contractor's expense, arrange for the lawful
disposal of any waste arising from the Conversion Process. Contractor
shall notify Owner in writing of the arrangements for disposal existing
on the Distribution Date and shall notify Owner of any subsequent
change in waste disposal arrangements.
ARTICLE 5 - CONFIDENTIALITY
5.1 Neither party shall disclose any information concerning the Conversion
Process, Conversion Charge, Compensation or any other term or condition of
this Agreement, or any of the other party's technical, financial,
marketing, manufacturing or other similar information, to any third party
without first obtaining the written consent of the other party, except as
required by applicable law, a stock exchange on which either party's (or
any such party's parent company, if applicable) stock is traded, or as
ordered by a court of competent jurisdiction. The foregoing restrictions
shall not apply to any information which the disclosing party can show:
(a) has been lawfully received by the disclosing party from a third-party
who has not breached a contractual, legal or fiduciary duty of
non-disclosure to the non-disclosing party or to another party; or
8
(b) is or becomes publicly known other than by disclosure by the
disclosing party.
In the event disclosure is required by applicable law, a stock exchange on
which either party's (or any such party's parent company, if applicable)
stock is traded, or by a court of competent jurisdiction, the disclosing
party shall provide the non-disclosing party with sufficient notice to
afford the non-disclosing party an opportunity to obtain a protective order
or other relief preventing disclosure. The disclosing party shall use
reasonable efforts to assist the non-disclosing party in its efforts to
obtain a protective order or other relief preventing disclosure. The
non-disclosure requirements in this Article 5 shall not be deemed to (a)
prohibit Owner from disclosing the Conversion Process to third parties, or
prohibit Contractor from disclosing its manufacturing know-how and
technology to third parties, or prohibit this Agreement from being included
as an exhibit to any Registration Statement filed by Owner's parent
company, Octel Corp., in connection with the distribution of the common
stock of Octel Corp. as a dividend to the holders of Contractor's common
stock pursuant to the Transfer and Distribution Agreement, dated _______,
1998, between Contractor and Octel Corp., or (b)(i) prohibit Owner from
disclosing to third parties any Manufacturing Improvement that has been
licensed to it pursuant to Section 9.6(b) or (ii) prohibit Contractor from
disclosing to any third parties any Invention that has been licensed to it
pursuant to Section 9.6(b), provided, however, that in the case of (i) and
(ii) the third party agrees in writing to be bound to the non-disclosure
covenants set forth in this Section 5.1.
ARTICLE 6 - ORDERS
6.1 Owner shall provide to Contractor during the month of November each year
a forecast prepared in good faith of monthly quantities of Product likely
to be required by Owner during the following Contract Year. No Quarter
in the forecast will show quantities in excess of 720,000 pounds, and no
month within such Quarter shall show quantities in excess of 300,000
pounds, without the written consent of Contractor. The forecast shall be
non-binding and is intended by the parties to facilitate their planning.
6.2 Contractor shall run two campaigns per Contract Year to manufacture
Product, with the scheduling of the manufacturing campaigns to be
determined by Contractor in its sole discretion, provided, however,
Contractor shall use reasonable efforts to cooperate with Owner in good
faith to schedule its manufacturing campaigns so as to minimize the
quantity of Product held by Contractor in inventory at Contractor's Plant.
6.3 Owner shall place firm orders for Product at least six months in advance
of requested delivery. Firm orders for Product will not exceed 720,000
pounds in any Quarter, and will not exceed 300,000 pounds in any month
within such Quarter without the written consent of Contractor.
6.4 Contractor shall manufacture Product ordered by Owner pursuant to Section
6.3 but such obligation shall be expressly conditioned upon delivery of
Feedstock meeting
9
its Specification to Contractor in such quantities, and on or before the
delivery date reasonably requested by Contractor for such Feedstock. Owner
shall place orders with its suppliers of Feedstock with sufficient advance
notice, based on Owner's past practices with said suppliers, to assure
delivery to Contractor in such quantities, and on or before the delivery
date reasonably requested by Contractor.
6.5 Owner shall pay the Conversion Charge (as defined herein) for a minimum of
500,000 pounds of Product per Contract Year ("Annual Minimum Volume"). If
Owner does not pay an invoice which is dated in a Contract Year until
after the end of the Contract Year, but does pay said invoice within the
thirty (30) day period set forth in Section 9.5, Owner shall be deemed to
have paid for said Product during the relevant Contract Year. If Owner
has not paid for at least the Annual Minimum Volume in any Contract Year ,
Owner shall, within thirty days following the end of said Contract Year ,
pay to Contractor the Conversion Fee for the difference between the Annual
Minimum Volume and the quantity of Product actually paid for by Owner in
said Contract Year.
ARTICLE 7 - DELIVERY
7.1 (a) Contractor shall analyze each shipment of Product before delivery to
confirm that such Product complies with all parts of the Specification, and
with each shipment of Product Contractor shall provide a certificate of
analysis signed by Contractor's designated analytical person or quality
control manager referring to all Specification items. Promptly after
receipt of each shipment of Product at the destination designated by Owner
pursuant to Section 7.2, Owner shall examine such Product for any damage,
nonconformance or shortage. Owner shall notify Contractor within
twenty-one (21) days of the receipt of such shipment of Product whether the
Product complies with the Specification. Failure of Owner to notify
Contractor within the twenty-one day period of non-conformity with
Specification shall constitute irrevocable acceptance of Product and shall
bar Owner from making any claim that such Product is non-conforming to
Specification in any respect (under any theory, including without
limitation, negligence, strict liability, contract, warranty or otherwise).
(b) If Owner has notified Contractor in a timely manner that Owner believes
that Product does not conform with Specification, the parties agree to
consult with each other in order to explain and resolve any discrepancy
between each other's determinations. If such consultation does not resolve
the discrepancy, Owner and Contractor shall nominate an independent
reputable laboratory, acceptable to each, to carry out tests on
representative samples taken from such shipment in dispute and/or any
samples retained by Contractor, and the resulting determination shall be
binding on the parties and the cost thereof shall be paid by the party
whose results were in error. Owner's sole and exclusive remedy for a
failure by Contractor to supply Product complying with Specifications shall
be that remedy specified in Section 12.3(a).
7.2 Product shall be delivered, at Owner's expense, from Contractor's Plant
to the destination designated by Owner. Product will be delivered in
rail car, truck or drum, as specified by Owner. Owner shall provide, or
shall cause the driver of any truck used
10
to deliver Product to provide to Contractor a written certification
confirming that the storage tank on such truck into which Product will be
pumped has been cleaned and decontaminated of all substances previously
contained in the storage tank. Owner is responsible for and assumes all
liability with respect to the suitability and compliance with law of all
trucks used to deliver Product. Owner further assumes all responsibility
for the suitability of the cleaning and decontamination of storage tanks on
delivery trucks such that the storage tanks do not cause Product to fail to
comply with its Specification. Owner shall select all drums to be used to
package Product for delivery to Owner's designated destinations, and shall
purchase and deliver to Contractor all such drums on or before the delivery
date requested by Contractor. Owner shall be solely liable for the
suitability and compliance with law of all drums. Drums shall be labeled in
accordance with Owner's instructions. Owner shall pay to Contractor the sum
of USD 0.14 as a filling charge for each drum filled by Contractor. Owner
shall take delivery of all Product manufactured by Contractor during a
manufacturing campaign so that at the conclusion of any manufacturing
campaign no Product shall remain at Contractor's Plant.
7.3 Contractor will retain all Product samples for one (1) calendar year.
Thereafter, all Product samples will be disposed of by Contractor, or at
Owner's request, said samples will be delivered to Owner, at Owner's cost.
ARTICLE 8 - FORCE MAJEURE
8.1 "Force Majeure" shall mean and include any circumstance to the extent
beyond the reasonable control of the party so affected (other than an
obligation to pay money), including without limitation, the following:
any act of nature or public enemies, explosion, fire, storm, earthquake,
flood, drought, perils of the sea, the elements, casualty, breakdown of
plant, strikes, lock-outs, labor controversies (regardless of whether such
strikes, lock-outs or labor controversies are within the reasonable
control of the party), riots, sabotage, embargo, war (whether or not
declared or whether or not the United States of America is a participant),
governmental laws, regulations, orders or decrees, the refusal of a
required governmental license, registration or permit, or seizure, in each
case for reasons other than the adverse financial condition of the party
so affected. Shortage of Feedstock shall not be deemed to be an event of
Force Majeure if invoked by Owner under circumstances where Owner has
failed to place orders with its suppliers of Feedstock with sufficient
advance notice, based on Owner's past practices with said suppliers, in
order to obtain delivery to Contractor of Feedstock in such quantities,
and on or before the delivery date reasonably requested by Contractor.
8.2 (a) Contractor shall not be liable for its failure to produce or sell
Product, or to otherwise perform its obligations hereunder, if such
failure is due to an event of Force Majeure. Similarly, Owner shall not
be liable for its failure to purchase Product or to otherwise perform its
obligations hereunder if such failure is due to an event of Force Majeure;
provided however that an event of Force Majeure shall not suspend or
otherwise affect Owner's obligations to pay the Conversion Fee for Product
or any other sums due and owing Contractor as provided herein. Any party
suffering an event
11
of Force Majeure shall use all commercially reasonable efforts to remove
such cause or causes with reasonable dispatch and shall promptly notify the
other party of the existence of the event of Force Majeure, and the
expected delays and the estimated effect upon performance to result
therefrom. The requirement that any Force Majeure be remedied using all
commercially reasonable efforts shall not require the settlement of
strikes, lock-outs or labor controversies by acceding to the demands of the
opposing party or parties. If a Force Majeure event affecting a party's
performance is projected to be permanent or of a duration of at least
twelve (12) months, the other party may terminate the Agreement on 60 days
notice.
(b) During the time Contractor is unable to produce or sell Product, or to
otherwise perform its obligations hereunder, it shall not be obligated to
procure Product from any alternative producer or supplier. Any Product
omitted hereunder due to either party's failure to perform its obligations
hereunder due to an event of Force Majeure shall be omitted from this
Agreement and the contracted quantity shall be so reduced for the
applicable contract period, provided, however, upon the termination of a
Force Majeure declared by Contractor, Contractor shall have the option,
with the written consent of Owner, to produce for sale to Owner in the
remaining contract period the quantities of Product omitted (or any portion
of such omitted quantities) due to the event of Force Majeure declared by
Contractor.
ARTICLE 9 - CONVERSION CHARGE
9.1 (a) Owner shall pay to Contractor a conversion charge ("Conversion
Charge") for converting Feedstock to Product by use of the Conversion
Process as set forth in Appendix I.
9.1 (b) Effective on the first day of each Contract Year (other than the first
Contract Year) the unit cost then in effect for labor, power,
utilities, caustic and wastewater shall be reviewed and compared with
the unit cost of such factors in effect on the first day of the
preceding Contract Year, and each of the Conversion Charges in
Appendix I shall be increased, but not to exceed 4% for any Contract
Year, by the amount of the net increase of labor, power, utilities,
caustic and wastewater taken as a whole (e.g., if the net increase of
labor, power, utilities, caustic and wastewater is 5%, each of the
Conversion Charges in Schedule I will increase by 4%). If the change
in these unit cost factors, taken as a whole, is a net decrease, the
Conversion Charges shall decrease in a like manner, but not to exceed
4% for any Contract Year. Owner shall have the right, at its expense,
to have an independent auditor that has no affiliation with Owner or
its parent, subsidiary and affiliate entities and that has entered
into a confidentiality agreement reasonably satisfactory to
Contractor, review the records of Contractor to confirm the accuracy
of each change in the unit cost factors made by Contractor. The
undertaking of the independent auditor shall be limited solely to
confirming the accuracy of any changes in the unit cost of labor,
power, utilities, caustic and wastewater. Set forth in Appendix G is
an example of how the Conversion Charge
12
shall be adjusted as provided in this Section 9.1(b). Any payments made by
Contractor in settlement, or in satisfaction of any judgment rendered in
the matter of Great Lakes Chemical Corporation, pending before the National
Labor Relations Board at case numbers 10-CA- 21446, 10-CA - 21640, 10-CA -
24463 and 10-CA - 28118, shall not be considered in connection with the
adjustment of the Conversion Charges as provided in this Section 9.1(b).
9.2 Subject to the adjustment set forth in Section 9.3, the Conversion Charge
invoiced during a Contract Year shall be the Conversion Charge
corresponding to the quantity forecast as being the Owner's aggregate
requirements of Product during such Contract Year (as provided by Owner to
Contractor in accordance with Section 6.1).
9.3 No later than forty-five (45) days after the end of each Contract Year the
parties shall calculate the difference between the Conversion Charge due
and owing pursuant to Appendix I for the quantity (in pounds) of Product
actually invoiced in the preceding Contract Year and the Conversion Charge
that was invoiced pursuant to Section 9.2 for such quantity of Product in
the preceding Contract Year, and the difference shall be paid to or
refunded by the Contractor.
9.4 (a) The term "Regulatory Change" shall mean a change effective after the
Distribution Date by any government, agency, legislative body, court,
utility board or similar entity with respect to (i) any environmental or
safety laws, rules, ordinances or regulations, wastewater or air emission
standards, permits or permit conditions, or (ii) any other or similar
requirements of any kind (regardless of whether they relate to
environmental or safety issues), which would increase Contractor's
operating costs and/or require capital expenditure by Contractor hereunder.
If Contractor or Owner learns that any Regulatory Change is under
consideration, the party learning same will immediately notify the other
and the parties shall work together to attempt to minimize the impact of
any such proposed Regulatory Change. If a Regulatory Change is adopted,
the party learning same will immediately notify the other party. Contractor
shall notify Owner of the amount of any required capital expenditure or the
amount of Contractor's increased operating costs, and shall provide Owner
with information supporting such capital expenditures or increased
operating costs. In the event of a Regulatory Change, Owner will as soon as
possible after receiving the notice of a required capital expenditure or
increased operating costs, but in no event more than forty (40) days after
such receipt, notify Contractor as to whether or not Owner agrees to accept
an increase in the Conversion Charge or reimburse Contractor for the
required capital expenditure as a result of said Regulatory Change.
(b) If Contractor has notified Owner of a Regulatory Change affecting
Contractor as described in Section 9.4(a) (i) or (ii) above, and if Owner
gives timely written notice to Contractor that Owner accepts the price
increase or will reimburse Contractor for the required capital expenditure,
the Conversion Charge will be increased in accordance with the following.
If the Regulatory Change will result in an increase in operating costs, the
amount of the increase in operating costs per pound of Product converted
will be added to the Conversion Charge then existing. If the
13
Regulatory Change requires a capital investment, the parties shall
negotiate in good faith to determine an equitable formula for Contractor to
recoup its capital expenditure, including a twenty percent (20%) return on
such capital, and once the parties have reached agreement on the formula
for Contractor to recoup its capital investment, Contractor will make the
capital investment.
(c) If Contractor has notified Owner of a Regulatory Change affecting
Contractor as described in Section 9.4(a)(i) or (ii) above and if Owner has
provided timely written notice that Owner does not accept the price
increase or will not reimburse Contractor for the required capital
expenditure, or if the parties cannot agree on an equitable formula for
Contractor to recoup its capital investment as provided in the final
sentence of Section 9.4(b) above, or if Owner fails to give timely written
notice that it accepts the price increase or will reimburse Contractor for
the required capital expenditure, then Contractor may in its sole
discretion elect (i) to absorb the increased cost or pay the required
capital expenditure without reimbursement, in which case this Agreement
will remain in full force and effect without change, or (ii) to provide
written notice to Owner that Contractor is terminating the Agreement, which
termination shall become effective six (6) months after receipt of said
notice by Owner, provided, however, if Contractor would be required to
make the capital expenditure or would incur the increase in operating costs
during such 6 month period, (x) Owner shall (1) within the 6 month period,
reimburse Contractor the full amount of such capital investment, including
a twenty percent (20%) return on such capital, and (2) pay Contractor the
amount of its increased operating costs for each pound of Product
manufactured within the 6 month period, or (y) the Agreement shall
terminate immediately upon receipt of Contractor's notice of termination.
9.5 Conversion Charges shall be invoiced to Owner on the date Product is
shipped by Contractor to the destination designed by Owner. Payment shall
be due 30 days from the date of invoice.
9.6 (a)(i) Contractor will retain the full benefit of all Manufacturing
Improvements for the production of Product. "Manufacturing Improvement"
means any change in equipment or methods employed by Great Lakes in
undertaking the Conversion Process (but specifically excludes any change
in the Conversion Process) to produce Product which results in decreased
cycle times or a reduction in cost to produce the Product.
9.6 (a)(ii) Contractor will share equally with Owner the full benefit of any
reduction in cost to produce the Product caused by any change in the
Conversion Process (which change shall have been mutually agreed to by the
parties), after Contractor has recouped the full amount of any capital
invested (as provided in the following sentence) to implement the change
in Conversion Process. Once Contractor has recouped one hundred percent
(100%) of said capital investment, including a twenty percent (20%)
return on such capital, with such recoupment to be at the rate provided in
the following sentence, the benefits of the change in Conversion Process
shall be shared between the parties by reducing the Conversion Charge in
an amount equal to 50% of the resulting reduction in cost per pound to
undertake the Conversion Process to produce Product (the "Cost Reduction
Factor"). The Conversion Charge payable by Owner shall not be
14
reduced by the Cost Reduction Factor until the Contractor has recouped the
capital invested (as provided above) to implement the change in Conversion
Process, with the capital to be recouped at the rate of the Cost Reduction
Factor applied to each pound of Product converted by Contractor.
(b) Any improvements, inventions or modifications to the Conversion
Process ("Inventions"), whether or not patentable, conceived by Contractor
or jointly by Contractor and Owner, shall be owned by Owner, and Contractor
shall be granted a non-exclusive, worldwide, royalty free license to
utilize the Inventions for any purpose other than the manufacture of
Product. Any Inventions, whether or not patentable, conceived by Owner,
shall be owned by Owner. Any Manufacturing Improvement conceived by either
Owner or Contractor, or jointly conceived by Contractor and Owner shall be
owned by Contractor, and Owner shall be granted an exclusive, worldwide,
royalty free license to utilize the Manufacturing Improvement in connection
with (i) the Product or (ii) any product based on the Product and which
incorporates an Invention.
9.7 (a) Contractor shall add to the Conversion Charge an amount equal to any
tax now in effect or hereafter imposed or levied, with respect to the
manufacture, sale, use or delivery of Product and imposed by law at the
point of sale or delivery of such Product (other than taxes based upon the
income or profits of Contractor), including but not limited to, sales tax,
use tax, retailer's occupational tax, gross receipts tax, and value added
tax, in each case to the extent payable by Contractor or required to be
collected by Contractor.
(b) All taxes now or hereafter imposed or levied with respect to the
manufacture, sale, use or delivery of the Product (other than taxes based
upon the income or profits of Contractor), which are required to be paid or
collected by Contractor and which are not imposed by law at the point of
sale or delivery of Products, including but not limited to, ad valorem tax,
or any environmental tax, shall be paid by Contractor and reimbursed by
Owner. Contractor will periodically calculate any allocation of such taxes
to the Product purchased by Owner and will prepare a separate invoice to
Owner for reimbursement of such taxes.
(c) Owner shall be responsible for and pay any duties which are levied upon
the export or import of Product manufactured by Contractor hereunder. Both
parties will work together to attempt to eliminate any such duty.
9.8 If Contractor is prevented from increasing the Conversion Charge in
effect at any time by any governmental law, order, regulation or ruling,
then at Contractor's option and upon one hundred and twenty (120) days
notice from Contractor to Owner, Contractor may terminate this Agreement.
9.9 If during the term of this Agreement Owner receives a written offer to
supply Owner's requirements of Product (by the conversion of Feedstock into
Product by use of the Conversion Process) for the following Contract Year
or multiple Contract Years, with such offer describing the specific
quantities of Stadis (registration ▇▇▇▇) 425 and Stadis (registration ▇▇▇▇)
450
15
(Enhanced) to be supplied pursuant thereto, from a manufacturer other than
a subsidiary, parent company or corporate affiliate of Owner, at a
conversion price lower than the Conversion Charge in effect under this
Agreement, and upon terms and conditions comparable to those stated in this
Agreement, Owner may request Contractor in writing to meet the lower price
offer, provided such request is presented to Contractor within thirty (30)
days of Owner's receipt thereof. Owner's request shall describe the
competitive offer in sufficient detail to reasonably permit Contractor to
verify same, including but not limited to the quantity of each of Stadis
(registration ▇▇▇▇) 425 and Stadis (registration ▇▇▇▇) 450 (Enhanced) to be
supplied. Contractor shall then give notice to Owner stating whether it
is willing to to adjust the applicable Conversion Charge under this
Agreement to meet the lower price competitive offer of such other
manufacturer. If Contractor does not adjust the then applicable Conversion
Charge under this Agreement to meet the lower price competitive offer
within thirty (30) days after Contractor's receipt of such request, Owner
may, by written notice to Contractor elect to accept such offer, in which
event this Agreement may be terminated by Contractor any time thereafter on
six (6) months written notice to Owner, provided, however, if Owner has
commenced purchasing Product from a third party pursuant to the lower price
competitive offer, Contractor may terminate the Agreement with no notice.
During any Contract Year in which Owner is purchasing Product pursuant to a
lower price competitive offer but Contractor has not terminated this
Agreement, the Annual Minimum Volume shall not be applicable.
ARTICLE 10 - RECORDS
10.1 At the end of each manufacturing campaign, Contractor shall supply to
Owner a statement showing the conversion ratio of Feedstock to Product
achieved during such manufacturing campaign. In addition, at the end of
each month, Contractor shall supply to Owner a statement showing:
a) the amount of Feedstock received from the Owner during that
calendar month and the dates of receipt; and
b) the amount of Product shipped during that calendar month
and the dates of shipment; and
c) the amount of Feedstock held in inventory at the
Contractor's Plant awaiting processing; and
d) the amount of Product held in inventory awaiting delivery
upon receipt of instructions from Owner; and
e) the amount of work in process, expressed as Feedstock.
10.2 Owner shall have the right, at Owner's expense, to appoint the
independent auditor identified in Section 9.1(b) to review the records of
Contractor on reasonable notice and during normal business hours, in order
to verify (a) the reduction in cost to produce Product caused by a change
in the Conversion Process and the application of the Cost
16
Reduction Factor to Owner as provided in Section 9.6(a)(ii) and (b) the
statements supplied to Owner as provided in Section 10.1. The independent
auditor shall undertake the review of records and verification of the
matters set forth in clauses (a) and (b) under the same requirements of
confidentiality as provided in Section 9.1(b). The undertaking of the
independent auditor shall be limited solely to confirming the matters set
forth in clauses (a) and (b) above.
ARTICLE 11 - TITLE AND RISK
Owner shall have title to Feedstock at all times. Owner shall have risk of
loss for Feedstock until Feedstock is received at Contractor's Plant, at which
time risk of loss shall shift to Contractor. Contractor shall have title to
and risk of loss for Product until the originating carrier takes possession of
the Product at Contractor's Plant for delivery to the destination designated by
Owner, at which time title to and risk of loss for Product shall shift to
Owner.
ARTICLE 12 - REPRESENTATIONS, WARRANTIES AND INDEMNITY
12.1(a) Contractor represents and warrants that:
(i) Product converted hereunder will meet its Specification, except to
the extent that (x) any failure of Product to meet its Specification is
caused by a failure of Feedstock to meet the Feedstock Specification, or
(y) any failure of Product to meet its Specification is caused by the
failure of any storage tank in a delivery truck to have been cleaned and
decontaminated immediately prior to receiving Product for delivery; and
(ii) Product furnished under this Agreement shall be manufactured,
processed and packaged in material compliance with all applicable
federal, state and local laws, regulations, orders and guidelines and
good industry practice, except to the extent any failure to package
Product in material compliance with all applicable federal, state and
local laws, regulations, orders and guidelines and good industry
practice is caused by the trucks or drums selected by Owner; and
(iii) Product will be conveyed free of any liens and encumbrances,
except to the extent any liens and encumbrances attributable to Owner
attach to the Feedstock or Product; and
(iv) as of the Distribution Date it is aware of no Regulatory Change (as
that term is defined in Section 9.4(a)) which has been proposed or is
under consideration.
(b) CONTRACTOR MAKES NO WARRANTIES OTHER THAN AS PROVIDED IN SECTION
12.1(a) AND CONTRACTOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR
WARRANTIES OF FITNESS FOR AN INTENDED PURPOSE OR FOR ANY OTHER PARTICULAR
PURPOSE, WHETHER ARISING BY LAW, CUSTOM, CONDUCT OR USAGE OF TRADE.
17
12.2 Owner represents and warrants that:
(a) it will at all times comply in all material respects with all
applicable laws, regulations, orders and guidelines and good industry
practice, and that it presently has, and will use its best efforts to
maintain, all licenses, permits and similar authorizations required for the
manufacture, processing, packaging, sale and delivery of Product; and
(b) it has the full legal right to use Feedstock and the Conversion Process
to produce Product, and there are no restrictions under law or any patent,
nor is Owner party to any contracts which prohibit Owner from contracting
to have Contractor produce Product as contemplated by this Agreement; and
(c) as of the Distribution Date it is aware of no Regulatory Change (as
that term is defined in Section 9.4(a)) which has been proposed or is under
consideration; and
(d) as of the Distribution Date it has provided to Contractor all safety,
health, environmental, hazard and medical information in its possession
relating to Product, the Conversion Process, Feedstock and other raw
materials used to make Product, and it will continue to supply any such
safety, health, environmental, hazard and medical information obtained
after the Distribution Date to Contractor for as long as this Agreement
remains in effect;
(e) all Feedstock will meet the Feedstock Specification; and
(f) all drums in which Product is packaged for delivery, and all trucks
used to deliver Product are suitable for such delivery and comply in all
respects with applicable law; and
(g) the storage tanks in any truck used to deliver Product from
Contractor's Plant to Owner's designated destination shall have been
cleaned and decontaminated immediately prior to receipt of Product for the
delivery such that the use of the storage tank shall not cause the Product
to fail to comply with its Specification.
12.3 (a) In the event that any Product hereunder fails to conform to the
warranty in Section 12.1(a)(i), as Owner's sole remedy for said failure, if
Owner has provided timely notice of such non-conformity under Section
7.1(a), Contractor shall, at its option, (i) supply Owner with the
applicable volume of conforming Product as soon as reasonably practicable,
or (ii) refund the Conversion Charge paid by Owner for the non-conforming
Product. Contractor shall have the right, at Contractor's expense, to
reclaim and rework non-conforming Product, provided, however, if
non-conforming Product cannot be reclaimed and reworked into conforming
Product, Contractor shall reimburse Owner for the cost of the replacement
of all Feedstock used in the non-conforming Product as provided in
Appendix E.
(b) Neither party shall be liable to the other under or in connection with
this Agreement for lost profits or for special, indirect, incidental,
consequential, punitive or
18
exemplary damage of any kind, whether arising in contract, tort, product
liability or otherwise, even if advised of the possibility of such lost
profits or damages. This section shall not serve to reduce a party's
indemnity obligations in connection with claims by third persons or
entities against a party entitled to indemnification under Section 12.4,
nor to reduce Owner's obligations, if any, to pay the sums provided in
Section 6.5. Notwithstanding the preceding sentence or any other provision
of this Agreement, Contractor shall not under any circumstances be required
to pay damages for default or breach or indemnity in an amount greater than
the total amount it has received from Owner in payment for that Product
which is actually involved in the claim for damages or indemnity.
12.4 (a) Subject to the limitation in the last sentence in Section 12.3(b),
Contractor will indemnify and hold Owner harmless from and against all
claims, actions, judgments, losses, and expenses, including reasonable
attorneys fees, sustained or incurred by Owner, which arise or result from
(i) breach of any warranty by Contractor hereunder (subject to the
limitations set forth in Sections 7.1(a), 7.1(b) and 12.3(a)), (ii) acts,
omissions, or events taking place in connection with the production,
storage, packaging and handling of Feedstock or of Product, in each case
while Owner has the risk of loss therefore (excluding however, claims
relating to the suitability or compliance with law of drums in which
Product is packaged, or trucks in which Product is delivered, which shall
be Owner's sole responsibility), and (iii) any negligent acts or
omissions of Contractor in failing to properly seal any drum or railcar in
which Product is to be shipped to the destination designated by Owner,
which negligent act or omission causes Product to be released from such
drum or railcar prior to being received at its destination, provided that,
except as set forth in clause (iii) above, Contractor shall not under any
circumstance be obligated to indemnify or hold Owner harmless from product
liability, recall costs or liability, negligence, breach of warranty,
breach of contract or similar claims made by any person or entity who
purchases, uses, is exposed to or otherwise claims to have been injured or
damaged by or in connection with Product (including any product into which
Product has been incorporated) after risk of loss for said Product passes
to Owner.
(b) Owner will indemnify and hold Contractor harmless from and against all
claims, actions, judgments, losses and expenses, including reasonable
attorneys' fees, sustained or incurred by Contractor, which arise or result
from (i) breach of any warranty by Owner hereunder, (ii) the ordering,
shipping, handling and delivery of Feedstock before Contractor takes
possession thereof at Contractor's Plant, (iii) except as provided in
Section 12.4(a)(iii), all acts, omissions or events taking place in
connection with Product after risk of loss passes to Owner hereunder,
including without limitation (x) all product liability, recall costs or
liability, negligence, breach of warranty, breach of contract or similar
claims by any person or entity who purchases, uses, is exposed to or
otherwise claims to have been injured or damaged by or in connection with
Product (including any product into which Product has been incorporated),
(w) storage of Product, (x) packaging of Product, (y) handling of Product
or (z) shipment of Product, in each case after risk of loss for said
Product passes to Owner, (iv) claims relating to the suitability or
compliance with law of drums in which Product is packaged or trucks in
which Product is delivered, and (v) any litigation or
19
claim by any third person or entity alleging that performance by Contractor
hereunder, or that manufacture, sale or use of Product (including any
product into which Product has been incorporated), infringes upon any
patent right or any other intellectual property rights of any third person
or entity.
ARTICLE 13 - MISCELLANEOUS
13.1 All waivers and consents given hereunder shall be in writing. No waiver
by any party of any breach or anticipated breach of any provision hereof
shall be deemed a waiver of any other contemporaneous, preceding or
succeeding breach or anticipated breach, whether or not similar, on the
part of the same or any other party.
13.2 The article and section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.3 Other than with respect to any receivor or trustee that agrees to assume
the liabilities and obligations under this Agreement of the party for whom
it is appointed, this Agreement shall not be assigned by either party
without the prior written consent of the other party, such consent not to
be unreasonably withheld. Subject to the foregoing restriction, this
Agreement shall inure to the benefit of, and be binding upon, the parties
hereto and their respective successors and assigns.
13.4 This Agreement may be executed in two or more counterparts, all of which
taken together shall constitute one and the same instrument.
13.5 This Agreement, including all appendices annexed hereto (each of which is
incorporated herein by reference), contains the entire understanding of
the parties hereto with respect to the subject matter contained herein or
therein, and supersedes all prior negotiations, understandings, or
agreements whether oral or written. The parties agree and acknowledge that
the Agreement has been reached as a result of negotiation between the
parties, each represented by counsel. As a result, if any dispute ever
arises regarding the construction of any provision, neither party shall be
entitled to any favorable or detrimental construction preference.
13.6 This Agreement may not be changed orally, nor shall any modification of
this Agreement be affected by the use of purchase orders, invoices,
acknowledgments, acceptances or other forms at variance with or in
addition to the terms and conditions herein. In case of a conflict
between any of the terms contained in a written purchase order, invoice,
acknowledgment, acceptance or other form and any of the terms of this
Agreement, the terms of this Agreement shall control. No additional terms
or conditions of sale other than those contained in this Agreement shall
be effective unless approved in writing by the representatives of Owner
and Contractor identified in Section 13.8.
13.7 In case any provision in this Agreement shall be held invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof will not in any way be affected or impaired thereby.
20
13.8 All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
(a) on the date of service if served personally on the party to whom
notice is given, (b) on the day of transmission if sent via facsimile to
the facsimile number given below, provided facsimile confirmation of
receipt is obtained promptly after completion of transmission, (c) on the
third business day after delivery to an overnight courier service,
provided receipt of delivery has been confirmed, or (d) on the tenth day
after mailing, provided receipt of delivery is confirmed, if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, properly addressed and return-
receipt-requested, to the party as follows:
If to Contractor: Great Lakes Chemical Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: General Manager-Fine Chemicals
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall
not serve as notice): Great Lakes Chemical Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Assistant General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Owner: The Associated Octel Company Limited
P.O. Box 17, Oil Sites Road
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Company Secretary
Telecopy: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
13.9 This Agreement shall be interpreted and the rights and liabilities of
the parties determined in accordance with the substantive law of the State
of New York, without giving effect to any choice of law rules or
provisions (whether of the State of New York or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other
than the State of New York. The parties hereby adopt and incorporate by
reference the dispute resolution provisions in Article XI of the Transfer
and Distribution Agreement dated as of ______, 1998 between Contractor and
Octel Corp.
21
13.10 The termination of the Agreement shall not impair or prejudice any right
or remedy which either party may have against the other at law or in
equity under this Agreement and which has arisen or accrued prior to or at
the time of termination, including, without limitation, any right or
remedy by reason of any breach hereof. The termination of this Agreement
shall not relieve either party from any covenants or agreements hereunder
which, by their terms, are expressly or impliedly intended to survive
termination, including, but not limited to, Articles 5 and 12 and Section
9.6(b).
ARTICLE 14 - TRANSITIONAL PHASE
During an initial period until the Owner gives written notice to the Contractor
to the contrary, the Contractor shall purchase Feedstock on behalf of Owner, at
the most commercially advantageous price available instead of Owner itself
purchasing said Feedstock. The Contractor shall then invoice Owner the cost
of purchasing the Feedstock used to make Product. Title and risk of loss for
such Feedstock shall be as provided in Article 11.
22
The Associated Octel Company Limited
Signature:
--------------------------
Date:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
Great Lakes Chemical Corporation
Signature:
--------------------------
Date:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
