CONFIDENTIAL TREATMENT
Exhibit 10.80
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO REGISTRANTS' APPLICATION OBJECTING TO
DISCLOSURE AND REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406; THE OMITTED
PORTIONS HAVE BEEN MARKED WITH BRACKETS.
[STYRENE MONOMER SUPPLY AGREEMENT]
This Agreement has been entered into by and between:
STYROCHEM FINLAND OY
POB 360
FIN-06101 PORVOO
FINLAND
hereinafter called STYROCHEM or the BUYER
And
ELF ATOCHEM SA
Cours Michelet
F 92091 PARIS LA DEFENSE CEDEX
FRANCE
hereinafter called ELF ATOCHEM or the SELLER
Whereas the BUYER wishes to buy and receive quantities of styrene monomer (THE
PRODUCT) from ELF ATOCHEM and whereas ELF ATOCHEM wishes to sell and deliver to
the BUYER quantities of the PRODUCT.
Therefore the parties hereby agree as follows:
1. QUALITY
-------
The PRODUCT delivered hereunder by the SELLER shall meet the specifications set
forth in Appendix "A" attached hereto.
2. DURATION
--------
This Agreement shall enter into effect on October 15th, 1997 and shall remain in
effect for an initial period of three years until October 14th, 2000, whereupon
it shall be automatically renewed by tacit agreement for periods of one (1) year
at a time unless terminated by either party by giving written notice thereof to
the other party at least twelve (12) months prior to the expiration of the
initial period or any subsequent period.
Notwithstanding the foregoing, either party can terminate this Agreement upon
written notice to the other party in the event either of the following occurs:
(a) the filing by or against either party of a petition in bankruptcy,
adjudication of either party as bankrupt or insolvent, or either party's
seeking, consenting to, or acquiescing in the appointment of any trustee,
receiver, conservator or liquidator: or (b) a material default by either party
in the performance of its obligation hereunder if such default is not cured
within thirty (30) days after receipt of written notice of such default from the
other party.
3. QUANTITIES OF STYRENE
---------------------
During the term of this agreement, ELF ATOCHEM agrees to deliver and STYROCHEM
agrees to purchase an annual quantity of styrene monomer to be identified by
STYROCHEM between twenty (20) and fifty (50) kilotons (KT). The annual quantity
will not exceed fifty (50) kilotons.
The annual quantity will be evenly spread over the year.
For the first year of the agreement the quantity agreed will be thirty nine
thousand five hundred metric tons (39500 MT).
4. SCHEDULING AND DELIVERIES
-------------------------
4.1 Not less than [ ] months in advance of the commencement of each
contractual year, STYROCHEM shall notify ELF ATOCHEM in writing as to the
quantities of styrene to be delivered for that contractual year, within the
limits determined in Article 3.
Not less than [ ] days prior to the commencement of each calendar
month, STYROCHEM shall notify ELF ATOCHEM of STYROCHEM's estimated
requirement of styrene for each of the following three (3) calendar months
to be delivered by ELF ATOCHEM to STYROCHEM during the same period. Such
estimates shall be for ELF ATOCHEM's convenience only and shall not be
binding upon the parties.
Not less than [ ] days prior to the commencement of each calendar
month STYROCHEM and ELF ATOCHEM shall mutually agree on the monthly
requirement of the PRODUCT to be delivered and STYROCHEM will place a firm
written order accordingly.
For those purchase orders placed by STYROCHEM and accepted by ELF ATOCHEM
where ELF ATOCHEM does not satisfy the conditions thereof for any reason,
purchaser will have the right to place orders to a third party. With
respect to such orders placed by STYROCHEM with a third party ELF ATOCHEM
will pay STYROCHEM an amount, if any that STYROCHEM paid to such third
party for such orders in excess of the price that would have been paid to
ELF ATOCHEM for such order. Pursuant hereto, such orders placed by
STYROCHEM with a third party shall be deemed placed with and satisfied by
ELF ATOCHEM for the purposes of Article 6.2 below.
4.2 The PRODUCT shall be supplied by ELF ATOCHEM in approximately equal monthly
quantities after allowing for any planned and notified shutdowns by ELF
ATOCHEM Gonfreville production plant and STYROCHEM Finnish production
plants.
Styrene will be delivered by STYROCHEM on a CIF PORVOO of CIF PORI basis by
shipment of two thousand five hundred metric tons (2500MT) to three
thousand five hundred metric tons (3500MT) at seller's option.
5. VESSEL AND LOGISTICS
--------------------
5.1 The SELLER will procure a vessel meeting all relevant regulations and all
unloading port regulations and BUYER's safety standards.
5.2 Marine vessel will be designated by SELLER to BUYER at least seven (7) days
or at least five (5) working days in advance of the first day of the laycan
indicated in the said designation.
Nomination shall state the following details:
- PRODUCT
- Quantity of the PRODUCT +/- five percent (5%)
- vessel name
- charter party
- loading port
- port of destination
- load laycan
- laytime +8 hours notice
- demurrage
When vessel arrives within agreed arrival time the BUYER shall arrange for
unloading as expeditiously as possible. LONDON FORM charter party will
apply for laytime, demurrage and other maritime conditions. Any demurrage
claims should reach BUYER, fully documented at the latest three (3) months
after B/L date of the vessel.
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5.3 The exact quantity of the Products delivered pursuant to this Agreement
shall be determined and measured by a mutually accepted independent
surveyor. The surveyor will issue a certificate of quantity measured on
board.
The said independent surveyor shall issue a certificate of quality based on
analysis of samples taken from the shore tank before the commencement of
loading and the quality shall be verified by a composite sample taken from
the vessel's tanks after the loading has been completed.
The parties shall deliver each other copies of any certificate issued by
the independent surveyors at either loading or discharging port.
The expenses and costs relating to the independent surveyors hereunder
shall be on the account of SELLER at the loading port and account of BUYER
at the discharging port.
The surveyor's measurements at the loading port shall be binding upon both
parties.
No adjustment shall be made for variations in quantity that are less than
1/2% (one half of one percent) of the quantity stated on the xxxx of
lading.
5.4 Title, delivery and risk of loss to the Product shall pass to STYROCHEM as
such Product safety passes the flange connection between the delivery hose
and the vessel's cargo intake at the loading port.
5.5 "Chemical waste disposal clause"
If before sailing from discharge port a mandatory prewash of cargo tanks,
in accordance with requirements as per MARPOL 73/78 Annex II is necessary,
it is to be performed in direct continuation upon completion of discharging
cargo, in conformity with vessel's "Procedures and Arrangements Manual" and
in accordance with local port regulations. Time used for such mandatory
pre-wash shall be for Owner's account.
On being notified by Owners, or their representatives, upon sailing from
load port or latest when discharging port(s) is (are) nominated, Charterers
shall provide suitable and adequate facilities which shall be immediately
available and accessible to the vessel upon completion of discharge for the
reception of such washing water/cargo residue mixture originating from
cargo carried under this Charter Party and respective Xxxx(s) of Lading.
The cost for the use of such facilities and responsibility for ultimate
disposal of the cargo residue mixture shall be Receivers' account.
In the event that the vessel is ordered to vacate the discharging berth to
perform the mandatory pre-wash, as provided under the first paragraph
above, any shifting expenses and additional bunker costs to be for
Receivers' account.
Time used in shifting count as laytime or if vessel is on demurrage, as
time on demurrage.
Any delay in providing the necessary reception facilities and time used for
discharging cargo residue mixture shall count as laytime or, if vessel is
on demurrage, as time on demurrage.
Any action or lack of action taken under this clause shall not prejudiceany
other rights or obligations of the parties.
5.6 "Ice clause"
Vessel not to force ice but to follow icebreakers as far as the ice channel
is sufficiently wide. Receivers guarantee to place necessary icebreakers at
Vessel's disposal both inwards and outwards in accordance with and at the
discretion of the Finnish board of Navigation. Time stuck in ice or waiting
for icebreakers to count as half laytime or half demurrage, if on
demurrage. Ice risks premium to be for owner's account.
5.7 The trade terms contained in this Agreement shall be governed by Incoterms
1990 as may be amended from time to time except that if any provisions in
this Agreement conflict with Incoterms this Agreement shall have
precedence.
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6. PRICES AND PAYMENTS
-------------------
6.1 Price of styrene
On a CIF PORVOO or on a CIF PORI basis the price of each shipment will be
the lowest of the three (3) following formulas:
* Formula 1
---------
NWE CP minus [ ] percent
* Formula 2
---------
[ ] x (NWE CP minus [ ] percent) + [ ] x (spot T2 + [ ]DM/MT)
* Formula 3
---------
[ ] x (NWE CP minus [ ] percent) + [ ] x [(spot USG + [ ]USD/MT) x K +
[ ]DM/MT]
where:
NWE CP = North West Europe quarterly Contract Price (low end) as
published by ICIS in Deutsche Marks, valid for the month of
delivery.
SPOT T2 = Average of the weekly quotations for the month prior to the
month of delivery of the spot FOB T2 price for styrene in
Rotterdam area, as published by ICIS in US dollars and
converted in Deutsche Marks, using the USD/DM exchange rate
published by Banque of France and valid for the month prior
to the month of delivery.
SPOT USG = Average of the weekly quotations for the month prior to the
month of delivery of the spot FOB US Gulf price for styrene
as published by ICIS in US dollars and converted in Deutsche
Marks using the USD/DM exchange rate published by Banque de
France and valid for the month prior to the month of
delivery.
K = [ ] + Customs duties for EC imports from the United States,
valid for the month of delivery. For example K shall be
respectively as follows:
1997: K = [ ]
1998: K = [ ]
In the case of disappearance of the ICIS reference, or if the parties agree
that such reference shall not be considered as relevant, the parties will
endeavor to identify another reference and substitute it for such reference
within sixty (60) days after the written notice of either party requesting
such negotiations.
6.2 Quantity rebate
An additional rebate on quantities will be granted to the BUYER according
to mechanism detailed in Appendix B.
This rebate will be calculated and paid by a credit note at the end of each
quarter, provided that cumulated quantities at the end of each quarter are
corresponding to the prorated annual quantities set forth in Article 3.
6.3 Payment Terms
Payment shall be made upon presentation of commercial or telexed invoice
and the following supporting documents:
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* 2/3 original bills of lading and the delivering party's / shipowner's /
master's receipt for third original
* Surveyor's report
* Certificate of origin.
Any overdue payments will be charged with the interest rate of [ ]
percent ([ ]%) per annum.
If the due date falls on a bank holiday, a Saturday or a Sunday, payment
shall be due on the following business day.
All payments shall be made in Deutsche Marks (DEM) within [ ]
days after the date of invoice.
7. NO RESALE
---------
The BUYER declares that styrene monomer purchased from the SELLER under this
agreement is for its own consumption and for the sale to NESTE, NORLATEX, or
related business of STYROCHEM.
8. FORCE MAJEURE
-------------
The failure of any of the parties hereto to perform any obligation under this
agreement solely by reason of acts of God, acts of Government, riots, wars,
strikes (even if it is the parties power to concede), accidents in or shortage
of transportation or other causes beyond its reasonable control shall not be
deemed to be a breach of this Agreement. Provided, however, that the party so
prevented from complying herewith shall immediately give notice thereof to the
other party and shall continue to take all actions within its power to comply as
fully as possible herewith.
In all cases when Force Majeure shall affect the BUYER's ability to take or the
SELLER's ability to supply styrene monomer under this agreement, it is agreed
that the parties will come together in reciprocal good faith to discuss the most
suitable means for alleviating the results and best ensuring deliveries and
collections and the return as soon as possible to normal observance by the
impeded company of the present Agreement.
In all cases both parties agree that the supply of material shall be at levels
prorata in terms of tonnage to the SELLER's normal obligations to other parties
he supplies.
The party affected shall also inform immediately the other of the end of the
Force Majeure.
9. LIMITATION OF LIABILITY
-----------------------
Notwithstanding anything to the contrary contained in this Agreement, the SELLER
shall not be liable (whether in contract or in tort or otherwise) for any
indirect or consequential loss or loss of profits or use suffered in connection
with the supply to the BUYER of the PRODUCT providing the styrene monomer is
within the agreed attached specification. Seller agrees to defend indemnify and
hold harmless Buyer from and against all claims, actions, liabilities, damages,
costs and expenses (including attorney's fees) resulting from or relating to the
failure of the product to meet the specifications set forth in Appendix A.
10. ASSIGNMENT
----------
Neither party may assign its rights or obligations hereunder in whole or in part
without the written consent of the other party, which consent shall not be
unreasonably withheld, except that:
Either party may upon written notice to the other assign its rights or
obligations hereunder to any business entity which is directly or indirectly
wholly owned or controlled by it or its parent companies or which directly or
indirectly owns or controls it or its parent companies.
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This Agreement shall be binding upon and shall inure to the benefit of the
respective successors of the parties or to a person, firm or corporation
acquiring all or substantially all the business and assets of either party.
11. ARBITRATION / GOVERNING LAW
---------------------------
Any disputes, disagreements, controversy or claim arising out of or relating to
this Agreement, or a breach thereof, shall be finally settled by way of
arbitration under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce (ICC Rules), in force at the date or Request of Arbitration,
by three arbitrators.
Each party will appoint one arbitrator and the third one will be appointed by
the other two within thirty (30) days following the appointment of the latter.
In case one party fails to appoint one arbitrator or in case the two arbitrators
appointed by the parties do not agree on the third one, the Arbitration Court of
the International Chamber of Commerce will proceed to such appointment as soon
as possible. The Arbitration will take place in STOCKHOLM, SWEDEN.
The proceedings shall be conducted in English under material Swedish law.
12. NOTICE
------
Any notice required or permitted shall be given hereunder by letter, telex or
telefax to the parties as follows:
to: STYROCHEM FINLAND OY
Attention to: Xx. Xxxxxx Xxxxxxxx
XX XXX 000
XXX-0000 XXXXXX
XXXXXXX
with copy to: STYROCHEM INTERNATIONAL
Attention to: Xx. Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
to: ELF ATOCHEM SA
Petrochemicals Division
Cours Michelet
LA DEFENSE 10, Xxxxx 00
00000 XXXXX LA DEFENSE
FRANCE
In witness whereof the parties have caused this Agreement to be executed by its
duly authorized representatives.
Paris La Defense,
made in duplicate
ELF ATOCHEM STYROCHEM OY
Division Petrochimie
Date: Date:
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APPENDIX A
[STYRENE MONOMER SPECIFICATION]
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Specification Reference Standards
Test Methods
--------------------------------------------------------------------------------------------------
Purity % Min 99.7% ASTM D5135
Ethylbenzene ppm max less than or equal to 500 ASTM D5135
DVB ppm max less than or equal to 10 ASTM D5135
Phenylacetylene ppm max less than or equal to 150 ASTM D5135
Peroxides ppm max less than or equal to 20 ASTM D2340
Aldehydes ppm max less than or equal to 50 ASTM D2119
Polymers ppm max less than or equal to 5 (1) ASTM D2121
Chlorides ppm max less than or equal to 10 UOP 606
Water ppm max less than or equal to 130 NFT 20-052
Inhibitor P. TBC ppm max 10-15 ASTM D4590
Color APHA max less than or equal to 10 ASTM D1209
Total Sulfur ppm max less than or equal to 5 NFM 07 059
Benzene ppm max less than or equal to 5 (1) ASTM D 5135
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(1): Target ppm max 1
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APPENDIX B
----------
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ANNUAL
QUANTITY QUANTITY REBATE MECHANISM
-------------------------------------------------------------------------------------------------------------------
Q is less than or equal to [ ] KT No rebates
[ ] KT is less than Q is less than or equal to [ ] KT R = [ ]% on quantities in excess of [ ] KT
[ ] KT is less than Q is less than or equal to [ ] KT R = [ ]% on the [ ] KT bracket in excess of [ ] KY +
[ ]% on quantities in excess of [ ] KT
[ ] KT is less than Q is less than or equal to [ ] KT R = [ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on quantities in excess of [ ] KT
[ ] KT is less than Q is less than or equal to [ ] KT R = [ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on quantities in excess of [ ] KT
[ ] KY is less than Q is less than or equal to [ ] KT R = [ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on quantities in excess of [ ] KT
[ ] KT is less than Q is less than or equal to [ ] KT R = [ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on the [ ] KT bracket in excess of [ ] KT +
[ ]% on quantities in excess of [ ] KT
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