EXHIBIT 10.9
------------
COKE SUPPLY AGREEMENT
---------------------
THIS CONTRACT made and entered into as of January 1, 1997, between EXXON
COMPANY, U.S.A. (a division of Exxon Corporation), a New Jersey corporation,
hereinafter called "Seller," and Great Lakes Carbon Corporation, hereinafter
called "Buyer";
ARTICLE I - TERM
----------------
This contract shall be effective for the period January 1, 1997, through
December 31, 1999 provided, however, this contract shall be subject to earlier
termination in accordance with provisions therefore contained in Articles V,
VIII, XIII, and XIV, respectively.
ARTICLE II - DEFINITIONS
------------------------
1. "Coke" shall mean green delayed sponge coke of the quality hereinafter
specified produced at Seller's Baton Rouge Refinery.
2. Metric Ton = 2204.62234 pounds.
3. Wet short tons (WST) shall mean 2000 pounds of Coke and contained moisture.
4. Dry short tons (DST) shall mean 2000 pounds of dry Coke, with the dry
weight of the Coke determined as provided hereinafter.
5. "Terminal" shall mean Seller's Refinery coke terminal that is located west
of Seller's Baton Rouge refinery and which shall receive, crush, sample
and load Coke onto barges on the Mississippi River.
6. "Contract Year" shall mean a calendar year beginning January 1 and ending
December 31.
ARTICLE III - QUANTITIES
------------------------
A.
Subject to the allocation provisions in Article X hereof and to the provisions
of Article III.B below, Seller agrees to sell and Buyer agrees to purchase
approximately CONFIDENTIAL INFORMATION OMITTED per year (to be supplied by
approximately CONFIDENTIAL INFORMATION OMITTED per month) of Seller's Baton
Rouge Coke production having the qualities as set forth in Article IV.
At least three working days prior to the beginning of each month of delivery,
Seller will provide a best estimate forecast of Coke quantity and quality
production for each xxxxx at the Baton Rouge Refinery.
B.
The parties acknowledge that periodically Seller's Baton Rouge Refinery oper-
ations may yield Coke having properties different than those set forth in
Article IV. In such event, notwithstanding any provision herein to the
contrary, Buyer has no obligation to purchase the affected Coke production;
provided, however, Seller may offer and Buyer may elect to purchase such
affected Coke production in accordance with the terms of this Agreement,
including, but not limited to Article V Price. If Seller offers such affected
Coke production and Buyer elects to purchase, such purchase shall not be
included in the allocation shown in Article III.A.
C.
Determination of the quantity of Coke shipped to Buyer by Seller for billing
purposes shall be made in accordance with the procedures as outlined in
Article VII.
ARTICLE IV - QUALITY
--------------------
The parties acknowledge that the quality of Coke produced by Seller at its
Baton Rouge Refinery may vary from time to time depending on Seller's refinery
operations. Buyer and Seller agree that no provision in this Agreement shall
be construed to require Seller to produce and sell Coke having specified
qualities or to operate its refinery in a manner to produce Coke having any
specified qualities; however, Seller shall endeavor to use, in its sole
discretion, best efforts to make operational decisions to maximize the quality
of the Coke produced at its Baton Rouge Refinery, without making any implied
or expressed warranty as to the qualities of Coke produced. Seller expects to
produce and deliver Coke that does not exceed the following maximum qualities:
Max. on Dry Coke
--------------------------------------
Sulfur CONFIDENTIAL Wt. %
Volatiles " Wt. %
Ash " Wt. %
Vanadium " ppm
Nickel " ppm
Vanadium & Nickel " ppm
Silicon " ppm
Iron " ppm
Calcium " ppm
Sodium " ppm
Shot "
HGI* "
--------------------------------------
* Typical range, not analyzed by Seller
Analysis of Coke quality produced shall be performed in accordance with
Appendix A.
ARTICLE V - PRICE
-----------------
All Coke shall be purchased F.O.B. barge at Seller's Baton Rouge Terminal.
Buyer shall pay a purchase price for Coke that adjusts based on certain qual-
ities of Coke actually delivered. The purchase price shall be determined as
follows:
1. The base purchase price for Coke containing CONFIDENTIAL INFORMAITON
OMITTED and CONFIDENTIAL INFORMATION OMITTED shall be the Quarterly Base
Purchase Price (QBPP) per dry short ton as determined below, calculated
for the applicable quarter in which the Coke is delivered:
A. 1Q97 QBPP = CONFIDENTIAL INFORMATION OMITTED Subsequent QBPPs shall be
determined as follows:
QBPP = CONFIDENTIAL INFORMATION OMITTED
EXAMPLE: CONFIDENTIAL INFORMATION OMITTED
*Note: CONFIDENTIAL INFORMATION OMITTED
X. Xxxx E-1 used to calculate the above QBPP as set forth in Section 1.A.
above for any delivery quarter shall be compared to Pace F for the same
delivery quarter. If the difference between the applicable Pace E-1
and Pace F for a delivery quarter varies by more than plus or minus
CONFIDENTIAL INFORMATION OMITTED of the Pace E-1 used to calculate the
QBPP for that delivery quarter, the QBPP for that quarter shall be re-
calculated, substituting Pace F for Pace E-1 in the QBPP formula. The
difference between the original QBPP and the revised QBPP for that
quarter as set forth in this Section 1.B. shall be added to or sub-
tracted from the QBPP for the next delivery quarter.
C. Definitions for Article V price calculations:
Pace E = Representative Green Coke Blend for Gulf Coast Calciners as
reported in Table E-2 of the Pace Petroleum Coke Quarterly. EX: 4Q96
will be reported in the 4Q96 report which is expected to be published
by Pace in the 1Q97.
Pace E-1 = The most recently published monthly average estimate of
Gulf Coast Anode Grade Calcined Coke Export Prices as reported in
Table 1 of the monthly update of the Pace Petroleum Coke Quarterly.
EX: February 1997 will be reported in the February 1997 monthly update
which is expected to be published by Pace in March 1997.
Pace F = Actual weighted average of calcined petroleum coke exports
for Customs Districts New Orleans and Port Xxxxxx as reported in Table
F of the Pace Petroleum Coke Quarterly. Actual Delivery Quarter infor-
mation will be reported by Pace in the quarter following delivery.
EX: 4Q96 data will be reported in the 1Q97 report which is expected to
be published by Pace in the 2Q97.
D. Notwithstanding any provision herein to the contrary, Seller shall
have the right to withhold up to CONFIDENTIAL INFORMATION OMITTED per
month of shot free Coke for the purpose of making spot sales.
2. Quality Adjustments:
With respect to the actual delivery prices, what the Buyer pays will vary
according to the following:
CONFIDENTIAL - To reflect the quality of actual Coke delivered, for coke
with CONFIDENTIAL content greater than CONFIDENTIAL the purchase price
shall be decreased by CONFIDENTIAL of the applicable QBPP for each 0.1 wt%
increase in the CONFIDENTIAL content above CONFIDENTIAL and increased by
CONFIDENTIAL of the applicable QBPP for each 0.1 wt. % decrease in the
CONFIDENTIAL content below CONFIDENTIAL (Ex CONFIDENTIAL in 1Q97 equals
an increase of CONFIDENTIAL.
For Coke with CONFIDENTIAL content less than CONFIDENTIAL the purchase
price shall be increased by an additional CONFIDENTIAL for each 0.1 wt. %
decrease in CONFIDENTIAL content below CONFIDENTIAL. The quality adjust-
ments for less than CONFIDENTIAL are cululative. All values for
CONFIDENTIAL percent are expressed to the nearest 0.1 wt. % in accordance
with ASTM procedures E-29-90 shown in 2.E. below, and the price adjustment
shall be rounded to the nearest $0.01/DST. (Ex: CONFIDENTIAL 1Q97 equals
an increase of CONFIDENTIAL.
B. CONFIDENTIAL - To reflect the quality of actual Coke delivered, the
purchase price shall be decreased by CONFIDENTIAL of the applicable QBPP
for each 0.1 wt. % increase in the content above CONFIDENTIAL and increased
by CONFIDENTIAL of the applicable QBPP for each 0.1 wt. % decrease in the
CONFIDENTIAL content below CONFIDENTIAL. All values for CONFIDENTIAL
percent are expressed to the nearest 0.1 wt. % in accordance with ASTM
procedures E-29-90 shown in 2.E. below, and the price adjustment shall be
rounded to the nearest $0.01/DST. (Ex: CONFIDENTIAL in 1Q97 equals an
increase of CONFIDENTIAL.
C. CONFIDENTIAL - To reflect the quality of actual Coke delivered, the
purchase price shall be decreased by CONFIDENTIAL of the applicable QBPP
for each 10 ppm increase in the CONFIDENTIAL content above CONFIDENTIAL
and increased by CONFIDENTIAL of the applicable QBPP for each 10 ppm
decrease in the CONFIDENTIAL content below CONFIDENTIAL. All values for
CONFIDENTIAL content are expressed to the nearest 10 ppm in accordance
with ASTM procedures E-29-90 shown in 2.E. below, and the price adjustment
shall be rounded to the nearest $0.01/DST. (Ex: CONFIDENTIAL 1Q97 equals
a decrease of CONFIDENTIAL.
D. The final price will be the sum of the QBPP and the three quality adjust-
ments shown above.
E. ASTM Test Result Rounding Procedures (E-29-90)
1. If the last digit is >5, round up.
2. If the last digit is <5, round down.
3. If the last digit is 5:
A. If the digit before the 5 is even, round down.
B. If the digit before the 5 is odd, round up.
3. Other:
If, during the term of this Agreement (a) Pace should fail to publish any
referenced price for purposes of the preceding formulas in Article V-1.
through V-2. or (b) the pricing formula as described in ARticle V-1. and
V-2. should result in a price for Coke that either party deems to be
sufficiently misaligned with market conditions as to warrant a price
change to reflect a fair market price, either party may request a change
in the pricing basis for this Agreement. The party requesting the change
shall notify the other party in writing, and Buyer and Seller shall meet
or teleconference within sixty days following the giving of the Change
Notification to discuss the pricing basis. If, within ninety (90) days
following the receipt of the Change Notification, the parties do not reach
a mutual agreement on what constitutes a fair and reasonable pricing basis,
this Agreement will terminate on the ninety-first (91) day following the
receipt of the Change Notification. During the period from the receipt of
the Change Notification until the later of the conclusion of the pricing
basis re-negotiation or Agreement termination, (a) Buyer will continue to
pay for Coke in accordance with Article V or (b) if Pace has ceased to
publish any referenced price for the applicable formula price determina-
tion, Buyer will pay provisionally in accordance with Article V until a
revised pricing formula is negotiated and such revised pricing formula
shall be retroactive to the delivery quarter for which Pace ceased pub-
lishing Pace E, Pace E-1 and/or Pace F data as described in Article V.
Seller shall invoice Buyer (by AUTOFAX) for each Coke delivery to the
following billing address:
Great Lakes Carbon Corporation
Attn: Accounts Payable
00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Buyer shall pay the invoiced amounT via Electronic Funds Transfer (EFT).
Payment shall be due on the tenth day after date of the invoice.
ARTICLE VI - DELIVERY
---------------------
1. Coke delivered hereunder to Buyer shall be loaded by Seller into barges
provided by Seller.
2. Title and risk of loss to the Coke delivered under this Agreement shall
pass from Seller to Buyer when the barge is released to Buyer.
3. From the time of title transfer, Buyer shall be responsible for all barge
transportation charges, as applicable, including demurrage, in route to
Buyer's destination.
4. Seller shall be responsible for cleanliness inspection and approval of
barges prior to loading.
ARTICLE VII - MEASUREMENTS
--------------------------
BARGES
A. The quantity of Coke loaded aboard barges shall be determined by a quali-
fied independent inspector, selected by Seller. Cost of said inspection
will be shared equally between Seller and Buyer. The moisture content, as
determined in accordance with Appendix A, will be deducted from the wet
Coke weight to determine dry weight of Coke delivered to the barge.
B. Seller shall cause the Terminal operator to take a composite Coke sample
from each barge. The sample will be split by Seller's laboratory and a
portion of at least one gallon will be made available to Buyer. Seller
will analyze its sample for moisture, sulfur, volaties, ash and metals
in accordance with the procedures in Appendix A. In the event Seller
elects to have an independent laboratory analyze Seller's sample, the
independent laboratory's analysis charges shall be split 50/50 between
Buyer and Seller. Invoicing will be based on the analysis of Seller's
sample. Both parties shall retain composite samples for a period of three
months.
C. Seller will arrange for the duplicate laboratory composite sample to be
sent to Buyer from Seller's courier's office (currently Metro Delivery).
Buyer will be responsible for selecting a courier for delivery from Baton
Rouge to Buyer's Plant and payment of courier's fee.
D. In case of any quality dispute, if the difference between Buyer's and
Seller's analysis exceeds the variance shown below, an analysis shall be
performed by a qualified independent inspector, agreed to by both parties,
using the same ASTM procedures as outlined in Appendix A, with costs to be
shared 50/50. The sample to be used shall be Seller's retained sample. A
quality discrepancy shall be deemed to exist if the sample analysis between
Buyer and Seller differs by more than any of the qualities listed below:
MAX. LAB
QUALITY UNITS VARIANCE
------- ----- --------
Sulfur wt.% 0.30
Volatiles wt.% 0.80
Ash wt.% 0.08
Vanadium ppm 40
Nickel ppm 50
Silicon ppm 60
Iron ppm 60
Calcium ppm 40
Sodium ppm 60
In the event of a quality dispute, Buyer's acceptance of the Coke and/or
Coke pricing for qualities of Coke delivered will then be based on the
average of the two analytical results that are the closest together; i.e.,
the average of the two closest results reported by Seller, Buyer and inde-
pendent lab. Both parties agree to review the allowable Max Lab Variance
at six month intervals.
ARTICLE VIII - TAXES
--------------------
A. It is agreed that any duty, tax, gross receipts tax, sales or use tax,
environmental fees or otherwise (but exclusive of taxes based on net
income) which Seller may be required to collect or pay under any munici-
pal, state, federal or other laws now in effect with respect to the manu-
facture, sale, inspection, transportation, storage, delivery or use of the
Coke covered by this Agreement shall be added to the price to be paid by
the Buyer. With respect to any sales or use taxes due and owing, Seller
agrees to delete such taxes provided that Buyer supplies Seller with a
properly completed resale or exemption certificate.
B. With respect to any newly enacted taxes or fees, as enumerated above, that
become effective after the date of this Agreement:
(1) Seller shall give Buyer written notice of any such addition or
increase and following receipt of such notice, Buyer may refuse by written
reply to Seller within thirty days to pay such increse or addition. Seller
shall then, by notice in writing given to Buyer within thirty days after
receipt of Buyer's reply, advise Buyer whether or not Seller elects to pay
the same without reimbursement from Buyer, and if Seller then elects not to
pay aforesaid increases and additions without reimbursement from Buyer,
Seller may terminate this Agreement immediately upon giving written notice
to Buyer as to Coke remaining undelivered.
(2) Buyer agrees to reimburse Seller for any such taxes and Seller agrees
to assign any right to refund or protest to Buyer should Buyer wish to con-
test such newly enacted taxes or fees; or,
(3) Seller may, at Buyer's written request, pay such taxes or fes under
protest and to take all actions necessary to contest the validity,
applicability or any other like challenge with respect to the amount or
application of any such taxes or fees and may institute actions necessary
to recover said payments solely at Buyer's expense and through counsel
designated by Buyer.
ARTICLE IX - INSPECTION CLAIMS AND LIABILITY
--------------------------------------------
A. Any claim for defect or variance in quality or shortage of quantity shall
be made, and Seller shall be notified and given an opportunity to inspect,
within ten days after (1) product(s) reach their destination, in the event
Seller's analysis survey and inspection results were provided to Buyer
before product(s) reached their destination or (2) Buyer receives Seller's
analysis survey and inspection results, in the event Buyer receives same
after delivery of products to their destination. Notwithstanding the
preceeding sentence, in the event Buyer fails to unload and inspect Coke
within ten days after the product reached its destination, Buyer may reject
the product if it contains shot; provided, however, in the event Buyer
rejects Coke, containing shot outside of the time period specified in the
previous sentence, Buyer shall pay and be responsible for all barge
demurrage and transportation costs accruing between the date the product
reached its destination and the date of product rejection. Subject to the
previous sentence, failure of Buyer to observe this provision or any action
by Buyer which impedes identification of an alleged defect shall operate as
a waiver of Buyer's rights to make any such claim; provided, however, that
such failure or action shall not operate as a waiver of Buyer's right to
make claims for bodily injury or property damage. In the event of a claim
for defect or variance in quality, Seller shall provide the results of an
independent lab analysis, in accordance with ARticle VII.D., within ten
days of notification of the quality claim by Buyer, if Seller fails to
provide Buyer with the independent lab analysis within ten days of the
claim notification, Buyer's analysis shall be determinative of quality for
purposes of acceptance of the Coke and pricing for the quality of Coke
delivered.
BUYER ASSUMES ALL RISKS OF LOSSES THAT RESULT FROM THE USE OF THE COKE
PURCHASED HEREUNDER WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUB-
STANCES OR IN ANY PROCESS PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL
RELIEVE SELLER OF ANY RESPONSIBILITY FOR BODILY INJURY (INCLUDING DEATH)
AND PROPERTY DAMAGE RESULTING FROM BREACH OF THE WARRANTIES CONTAINED
HEREIN OR FROM SELLER'S NEGLIGENCE. SELLER SHALL NOT BE LIABLE, WHETHER
AS TO GOODS DELIVERED OR FOR NON-DELIVERY OF GOODS, FOR ANY EXEMPLARY OR
SPECIAL DAMAGES, OR FOR CONSEQUENTIAL DAMAGES EXCEPT FOR THOSE DAMAGES FOR
BODILY INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE WHICH PROXIMATELY RESULT
FROM BREACH OF THE WARRANTIES CONTAINED HEREIN OR FROM SELLER'S SOLE
NEGLIGENCE OR FROM SELLER'S RESPECTIVE SHARE OF JOINT NEGLIGENCE.
B. EACH PARTY TO THIS CONTRACT SHALL INDEMNIFY, DEFEND AND HOLD THE OTHER
HARMLESS FROM CLAIMS, DEMANDS AND CAUSES OF ACTION ASSERTED AGAINST THE
OTHER BY ANY OTHER PERSON (INCLUDING WITHOUT LIMITATION EMPLOYEES OF
EITHER PARTY) FOR PERSONAL INJURY OR DEATH, OR FOR LOSS OF OR DAMAGE TO
PROPERTY, RESULTING FROM THE WILLFUL OR NEGLIGENT ACTS OR OMISSIONS OF THE
INDEMNIFYING PARTY. WHERE PERSONAL INJURY, DEATH, OR LOSS OF OR DAMAGE TO
PROPERTY IS THE RESULT OF THE JOINT NEGLIGENCE OR MSICONDUCT OF THE PARTIES
HERETO, THE PARTIES EXPRESSLY AGREE TO INDEMNIFY EACH OTHER IN PROPORTION
TO THEIR RESPECTIVE SHARE OF SUCH JOINT NEGLIGENCE OR MISCONDUCT.
ARTICLE X - FAILURE TO PERFORM
------------------------------
A. Any delays in or failure to perform by either Seller or Buyer shall not
constitute default hereunder or give rise to any claims for damages if
and to the extent that such delay or failure is caused by occurrences
beyond the reasonable control of the party affected (and in the case of
Seller, occurrences affecting a supplier or suppliers of Seller), includ-
ing but not limited to, acts of God or the public enemy; expropriation or
confiscation of facilities; compliance with any governmental allocation,
functional divestiture law or rationing program or any other regulation,
rule, order or request of any governmental authority (whether valid or
invalid and whether similar or disimilar to those above named), acts of
war, rebellin or sabotage or damage resulting therefrom; embargoes or
other import or export restructions; reduction of transportation capacity;
reduction in refining capacity; breakdown or temporary disruption of
Seller's Baton Rouge Refinery operations; accidental breakdown of trans-
portation facilities; inability to obtain necessary industrial supplies,
energy or equipment; fires, floods, explosions, accidents or breakdowns;
riots or strikes or other concerted acts of workers, whether direct or
indirect; or any other causes whether or not of the same class or kind as
those specifically above named which are not within the reasonable control
of the party affected and which, by the exercise of reasonable diligence,
said party is unable to prevent or provide against. In the event of such
delay or failure, the party affected will give notice and full particulars
in writing to the other party as soon as possible. In the event of such
delay or failure, Seller shall not be obligated to purchase or obtain other
Coke of the kind deliverable hereunder, or crude petroleum from which such
Coke is derived. Neither party hereto shall be required to settle strikes,
differences with workers or government claims by acceding to any demands
when in the discretion of the party whose performance is interfered with,
it would be inadvisable to accede to such demands.
B. If, for any reason whatsoever, whether within the control of Seller or not,
Seller's supplies of Coke of the kind deliverable hereunder out of the
Baton Rouge refinery are inadequate to meet its contract obligations to
customers for such Coke, or if Seller determines, in its sole discretion,
in consideration of raw material availability or refining conditions that
it is appropriate to impose a plan of allocation, the obligation of Seller
under this Agreement shall be reduced as Seller may determine as a part of
a plan for allocation to its customers consistently applied on a pro rata
basis. Seller, in its sole discretion, shall determine the Coke quality,
quantity, and loading schedule available to its customers and, to the
extent possible, will make such determinations after giving consideration
to all customers' needs and preferences. In any allocation of Coke
production, Seller's allocation plan shall include the following:
1. Seller's "customers" for Coke of the kind deliverable hereunder shall
mean (i) purchasers pursuant to current contracts and (ii) new purchasers
to whom Seller determines to commence selling at its sole option. The new
customers to whom volumes may be offered would be limited to those to whom
a denial could be construed as condoning questionable trade practices such
as restraint of trade.
2. In the event Seller imposes an allocation as a result of or directly
arising out of compliance with any governmental allocation, functional
divestiture law or rationing program or any other rule or request of any
governmental authority, "customers" defined in Article X.B.1. above shall
also include purchasers to who Seller commences selling as a result of such
governmental action. Seller shall have the right to give preference in any
allocation as described in the preceding sentence to those customers whose
needs (including resellers who sell for similar needs) are related to (i)
protection of life or health, (ii) production and transportation of food
and energy, (iii) mass transportation customers, and (iv) national defense.
3. Seller's allocation plans shall be applied after making provisions for
its own requirements for Coke of the kind deliverable hereunder for
exploring for, producing, manufacturing and transporting all forms of
energy, petroleum, petrochemical, mining, and energy products. In the
context of this subsection, "Seller" shall include Exxon Corporation and
all of its divisions, subsidiaries, and affiliates whether wholly or
partially controlled and whether domestic or foreign.
C. Seller shall be under no obligation to make deliveries hereunder at any
time when in its sole judgment it has reason to believe that the making of
such delivery would be likely to cause strikes to be called against it or
cause its properties to be picketed.
D. Neither Buyer or Seller shall be required to make up performance
omitted on account of any of the causes set forth in Article X.
ARTICLE XI - MODIFICATION, WAIVER, ASSIGNMENT & TERMINATION
-----------------------------------------------------------
This Agreement may be modified or rescinded only by a writing signed by both
parties or their duly authorized agents.
No waiver by either party of any breach of any of the covenants or conditions
herein contained to be performed by the other party shall be construed as a
waiver of any succeeding breach of the same or any other covenant or condition.
This Agreement is not assignable or tansferable by either party without the
prior written consent of the other, which consent shall not be unreasonably
withheld.
This Agreement terminates and supercedes any prior agreement between the
parties hereto, covering the purchase and sale of Coke ecept for rights and
obligations with respect to Coke delivered under any such prior agreement.
ARTICLE XII - NOTICES
---------------------
Any notice required to be given under Articles X, XIII and XVII of this
Agreement and any notice regarding any actual or alleged breach of this
Agreement shall be sent by certified or registered U.S. Mail, return receipt
requested, to the addresses set forth below or to such other addresses as
either party may notify the other of in writing. Such notices shall be
deemed to have been given on the date received by the other party.
To Exxon at: To Buyer at:
----------- -----------
Exxon Company, U.S.A. Great Lakes Carbon Corporation
Attn: Industry Fuels Manager Attn: Vice President - Raw Materials
P.O. Box 2180 00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
All other written notices required to be given or contemplated hereunder shall
be either personally delivered or sent by U.S. Mail, facsimile transmission,
telex, or telegram to the addresses set forth below or to such other addresses
as either party may notify the other of in writing.
To Exxon at: To Buyer at:
----------- -----------
Exxon Company, U.S.A. Great Lakes Carbon Corporation
Attn: Industry Fuels Manager Attn: Vice President - Raw Materials
P.O. Box 2180 00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
ARTICLE XIII - NEW OR CHANGED REGULATIONS
-----------------------------------------
The parties are entering into this Agreement in reliance on the regulations,
laws and arrangements with governments or governmental instrumentalities
(hereinafter called "Regulations") in effect on the date of execution by
Seller affecting the Coke sold hereunder insofar as said Regulations affect
Buyer, Seller or Seller's suppliers. If the effect of any changes in any
Regulations or of any new Regulations (1) is not covered by any other pro-
vision of this Agreement, and (2) in the affected party's judgment, any such
change has a significant and material effect upon the party (or if Seller,
upon Seller's suppliers), the affected party may request renegotiation of the
terms of this Agreement, to be completed within 60 days of written request
thereof, failing which the affected party shall have the right to terminate
this Agreement effective thirty days after the end of the said sixty-day
period.
Such right to request renegotiation or, upon failure to agree, to terminate,
shall without limitation also be available if Regulations undertake to regulate
the prices of Coke covered by this Agreement.
ARTICLE XIV - COMPLIANCE WITH LAWS AND REGULATIONS
--------------------------------------------------
EACH PARTY AGREES TO INDEMNIFY, DEFEND AND HOLD THE OTHER PARTY, ITS
SUCCESSORS AND ASSIGNS, HARMLESS AGAINST ALL LOSSES, CLAIMS, CAUSES OF ACTION,
PENALTIES AND LIABLILITIES ARISING OUT OF THE FIRST PARTY'S FAILURE TO COMPLY
WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS, ORDINANCES, REGULATIONS,
RULES AND ORDERS, INCLUDING, BUT NOT LIMITED TO, THOSE GOVERNING POLLUTION,
AND SUCH FAILURE OF COMPLIANCE SHALL ENTITLE THE SECOND PARTY TO TERMINATE THIS
AGREEMENT IMMEDIATELY.
ARTICLE XV - GOVERNING LAW
--------------------------
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT
REGARD TO ANY PRINCIPLES OF CHOICE OF LAWS IN TEXAS OR IN ANY OTHER STATE.
ARTICLE XVI - EXPRESS WARRANTIES: EXCLUSION OF OTHER WARRANTIES
---------------------------------------------------------------
Seller warrants (i) that the Coke supplied hereunder will conform to the
promises and affirmations of fact made herein, (ii) that it will convey good
title to the Coke supplied hereunder, free of all liens, and (iii) that the
Coke supplied hereunder shall be of merchantable quality.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED. THE IMPLIED WARRANTY OF
FITNESS FOR PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED AND DISCLAIMED.
ARTICLE XVII - FINANCIAL RESPONSIBILITY
---------------------------------------
If, during the duration of this Agreement, in the sole judgment of Seller,
reasonable grounds arise for believing the financial responsibility of Buyer
has become impaired or unsatisfactory, advance cash payment or other adequate
assurance of performance shall be given by Buyer upon written demand by Seller,
and shipments may be withheld until such payment or assurance is received. If
such payment or assurance is not received within 15 days of demand, Seller may
terminate this Agreement at any time upon written notice. If there are
instituted by or against Buyer proceedings in bankruptcy or under any
insolvency law, Seller may terminate this Agreement at any time upon written
notice.
ARTICLE XVIII - BUSINESS PRACTICES
----------------------------------
Each party agrees:
(1) To comply with all laws and lawful regulations applicable to any activ-
ities carried out in the name of or on behalf of the other party under the
provisions of this Agreement and/or any amendments to it.
(2) That all financial settlements, billing and reports rendered to the other
party as provided for in this Agreement and/or any amendments to it will to
the best of its knowledge and belief reflect properly the facts about all
activities and transactions related to this Agreement, which data may be relied
upon as being complete and accurate in any further recording and reporting
made by such other party for whatever purpose.
(3) To notify the other party promptly upon discovery of any instance where
the notifying party fails to comply with provision (1) above, or where the
notifying party has reason to believe data covered by (2) above is no longer
accurate and complete.
ARTICLE XIX - CONFLICT OF INTEREST
----------------------------------
Each party, in performing its obligations under this Agreement, shall establish
and maintain appropriate business standards, procedures, and controls,
including those necessary to avoid any real or apparent impropriety or adverse
impact on the interests of the other party. Each party shall review with
reasonable frequency during the term of this Agreement such business standards
and procedures including, without limitation, those related to the activities
of its employees and agents in their relations with the other party's
employees, agents, and representatives, and other third parties.
ARTICLE XX - AUDIT
------------------
Each party and its duly authorized representatives shall have the right to
witness custody transfer measurement procedures. In addition, each party
and its duly authorized representatives shall have access to the accounting
records and other documents maintained by the other party which relate to
materials being delivered to the other party under this Agreement, and shall
have the right to audit such records at any reasonable time or times within
three years after the termination of the Agreement.
ARTICLE XXI - DRAWBACK
----------------------
Seller and Buyer reserve the right to claim duty drawback resulting from duly
paid imported merchandise used in the manufacture of product delivered to
Buyer. When said product is exported, or used in the manufacture of a product
that is exported, Buyer will notify Seller promptly of its exportation. If
duty drawback is applicable under the laws and regulations of U.S. Customs,
Seller will prepare a mutually acceptable written agreement, detailing each
party's responsibilities, to be executed by both parties.
ARTICLE XXII - ENTIRE AGREEMENT
-------------------------------
This writing and its Appendices are intended by the parties to be the final
expression of their agreement and are also intended to be the complete and
exclusive statement of the terms of this Agreement. There are no oral under-
standings, repesentations or warranties affecting it.
In witness whereof, the parties hereto have duly caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
Exxon Company, U.S.A. Great Lakes Carbon Corporation
(a division of Exxon Corporation)
By:_____________________________ By:___________________________
Xxxxxxx X. Xxxxxx, Xx.
Title: Manager Industry Fuels Title:________________________
--------------------------
Date:___________________________ Date:_________________________
APPENDIX A
----------
Sampling and Testing Procedure for Petroleum Coke
-------------------------------------------------
1. Sampling By Seller
Representative Coke samples shall be obtained. Sample increments shall be
regularly and systematically collated so that the gross sample will
proportionately represent the contents of the barge. Duplicate samples
shall be obtained upon request for the use of either party.
2. Sample Preparation By Seller
The gross sample shall be reduced by an acceptable method (quartering,
xxxxxx, etc.) to obtain sufficient material for analysis.
3. Determination of Moisture, Volatile Matter and Ash By Seller
Except for moisture, laboratory testing of petroleum Coke shall be per-
formed using dry Coke samples. Moisture, volatile matter and ash shall be
tested according to ASTM 5142-90 or any subsequent ASTM approved procedure.
Procedure may be performed using automated analyzers such as MAC-400 or
equivalent.
4. Determination of Sulfur, Vanadium, Silicon, Iron, Calcium, Sodium and
Nickel Content by Seller
The analytical sample shall be crushed to pass a number 60 mesh sieve.
The sample shall be prepared by pressing a pellet with a suitable binder.
The sample pellet must be prepared with the same binder and pressing force
used to press standard pellets.
Sulfur shall be tested (analyzed) by LECO according to ASTM D 1552-90.
Vanadium, silicon, iron, calcium, sodium and nickel shall be analyzed by
X-ray fluorescence using the Siemens Model 303. Seller reserves the right
to develop ICP or A-A as reference procedures.
Buyer and Seller agree that the sampling and testing procedures set forth
in this Appendix A may be amended from time to time by mutual agreement of
the parties. Any such amendment shall be documented in writing, signed by
both parties.
