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EXHIBIT 10.13
SUPPLY AND PURCHASE
AGREEMENT
SODIUM HYPOCHLORITE
Between :
"CHLORALP" a corporation organized under the laws of France , whose registered
office is located at 00 Xxxx Xxxx Xxxxxx, 00 000 Xxxxxxxxxx, Xxxxxx ,
hereinafter referred to as " CHLORALP "
on the one hand ,
And :
XXXXX - XXXXXXX AGROCHIMIE , a Societe Anonyme organized under the laws of
France, having a corporate capital of 1 000 000 000 French Francs, whose
registered office is located at 14 / 00 xxx Xxxxxx Xxxxxx , 00 000 Xxxx Xxxxxx ,
hereinafter referred to as " RPA "
on the other hand ,
CHLORALP and RPA being hereafter referred to as the " Parties " ;
WITNESSETH :
- whereas CHLORALP operates at Pont de Claix ( Isere ) a unit producing
chlorine and caustic soda with a by - production of sodium hypochlorite,
- whereas RPA operates several production units at Pont de Claix ( Isere )
and needs regular supply of sodium hypochlorite,
- whereas CHLORALP and RPA wish therefore to enter into a long - term supply
and purchase agreement with respect to sodium hypochlorite ;
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ARTICLE 1 . OBJECT
The object of the present agreement (the "Agreement") is to define the terms and
conditions according to which CHLORALP shall supply RPA, and RPA shall purchase
from CHLORALP Sodium Hypochlorite, as defined with its Specifications in
Schedule 1 of this Agreement (hereinafter the "Product").
ARTICLE 2. SUPPLY AND PURCHASE OBLIGATIONS
2.1.Quantity
CHLORALP undertakes to supply to RPA, and RPA undertakes to purchase from
CHLORALP, during each calendar year of the Term of this Agreement , one hundred
per cent (100 %) of RPA needs of Product on Pont de Claix site (hereinafter the
"Quantity" or "Q") .
For the calendar year 1997, the annual Quantity of Product is estimated to be
[*] Tons.
0.0.Xxxxxx Program
Each year, prior to October 31, RPA will notify CHLORALP of its estimated
purchase requirements for the Product during the subsequent calendar year (the
"Estimated Purchase Requirements" ) .
The Estimated Purchase Requirements divided by 12 months shall constitute the
basis for RPA's monthly orders, except during the months when turnarounds are
conducted .
Therefore, RPA shall not unreasonably by more than 20 % decrease or increase its
monthly orders without prior notice to CHLORALP .
At least five business days before the first business day of month ( m ) , RPA
shall send to CHLORALP firm orders for deliveries of Product for month ( m ) and
shall communicate to CHLORALP its best estimations of the quantities of Product
planned to be ordered for the two following months ( m + 1) and ( m + 2 ) ,
unless otherwise agreed between the Parties .
RPA and CHLORALP shall meet at the minimum twice a year with a view to
exchanging mutual information on RPA's requirements and needs, to updating
schedules and solving any difficulties in implementing this Agreement .
2.3. Delivery .
Product shall be delivered by pipe to RPA unit(s) on Pont de Claix Site. The
delivery point shall be the flange at the entrance of RPA unit(s).
ARTICLE 3 . PRICE
3.1. The "Initial Price" ("P0") of the Product to be paid by RPA to CHLORALP is
defined as :
[*]
* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.
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3.2. Such Initial Price shall be revised for the first time on January 1998,
and thereafter yearly, in accordance with the following revision
formula :
[*]
where :
P( n ) is the revised Price to be applied for the current year (n) (the
"Revision Year ")
P(n-1) is the Price applied to the Product for year (n-1) immediately preceding
the Revision Year .
HC(n-1) is the average value for year (n -1) of the monthly values of the
price of Chlorine as published by XXXXXXXX ( middle of the range ) .
HS (n -1) is the average value for year ( n -1) of the monthly values of
the price of Caustic Soda as published by XXXXXXXX ( middle of the
range ) .
3.3. For the implementation of this Article, the Price is understood CIP RPA
Pont de Claix plant (INCO Terms 1990) .
3.4. CHLORALP shall invoice RPA on a monthly basis .
Payment term shall be of thirty days , end of the month, the tenth , and
made by bank transfer to such bank account as CHLORALP shall indicate to
RPA in writing.
ARTICLE 4 - QUALITY . PRODUCT WARRANTY .
CHLORALP warrants that each lot of Product shall comply with the
specifications - second grade quality - as described in Schedule 1 attached to
the present Agreement (the "Specifications"), and shall be free from defects and
of good material and xxxxxxx ship .
CHLORALP shall be liable only for replacement of non-conforming lot of Product
under the following conditions :
All claims by RPA for non-conforming Products shall be deemed waived unless made
by RPA in writing within thirty (30) days from the delivery date of such
Product .
If CHLORALP agrees with RPA's claim, it will, at its expense, immediately
replace the non - conforming lot of Product by a conforming lot of same .
If CHLORALP does not agree with RPA 's claim , either may request an expert
appraisal by an independant laboratory, to determine whether said Product
complies with said Specifications. The report of such independant laboratory
shall be conclusive and binding on the Parties hereto.
All expenses related to such appraisal shall be borne by the Party found in
default.
* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.
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RPA and CHLORALP being "industrial of the same speciality", RPA acknowledge that
the above warranty constitutes its exclusive remedy and CHLORALP 's total
liability for claims regarding the Product for " hidden defaults " ("vices
caches") and CHLORALP excludes any implied warranties of merchantability and
fitness for a particular purpose and all other express or implied
representations or warranties . RPA waives all other claims against CHLORALP and
CHLORALP shall not be liable to RPA for any other direct or indirect damages .
The warranty and all limitations on RPA 's remedies and on CHLORALP 's liability
provided for in this Article shall survive the expiration, termination or
cancellation of this Agreement .
ARTICLE 5 - TRANSFER OF TITLE AND RISK
Title to the Product and all risk for loss or any damage thereto shall pass to
RPA as the Product passes the flange at the entrance of RPA unit(s) on Pont de
Claix Site .
ARTICLE 6 - TERM
This Agreement shall come into force on October 1st, 1997 and, except as
provided in Article 7.2 below shall remain in force for a period of (15) years (
the " Term " ).
Thereafter it shall be renewed automatically for an unlimited period, unless
terminated by either Party giving at any time to the other Party not less than
(5) years prior written notice .
If and when Xxxxx - Xxxxxxx Chimie ( " RPC " ) interest becomes lower than 50 %
of the capital of CHLORALP, the Term of this Agreement shall automatically be
changed to a ( 10 ) year period running from the date on which RPC's interest is
lower than 50 % . It shall , in such case , thereafter be renewed for equivalent
period of ten years, unless terminated by either Party giving the other Party
not less ( 5 ) years prior written notice prior to (i) the end of the initial 10
years period or (ii) the end of each subsequent ( 10 ) ten years period .
ARTICLE 7 - GENERAL PROVISIONS
7.1. Secrecy
Each Party agree that all information disclosed to it by the other Party under
the present Agreement (the "Information") shall be held and treated in the
utmost and strictest confidence and neither Party shall use said Information to
benefit itself or others , except for the purpose defined in Article 1 hereabove
.The receiving Party shall not disclose any Information to a third Party unless
and until expressly authorized in writing to do so by the disclosing Party,
provided, however, that, either Party may transmit any Information disclosed
hereunder to any of its Affiliate. Each Party shall be held accountable for the
compliance of these Affiliates with the terms of this Article.
For the implementation of this Agreement, the term "Affiliate" of either Party
shall mean a company which, directly or indirectly, controls, is controlled by,
or is under
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common control with said Party "Control" shall mean the control as defined by
Articles 355.1 and following of the law of July 24, 1996, on commercial
companies .
The Parties agree that, notwithstanding the preceding provision, the receiving
Party shall be under no obligation with respect to any Information, which it can
demonstrate that :
- was, at the time of disclosure , available to the general public, or
- became, at a later date, available to the general public through no fault
of the receiving Party, or,
- was in it possession before receipt, or
- was disclosed to it without restriction on disclosure by a third party
which has the lawful right to disclose said Information .
All obligations contained in this Article 7.1 shall survive for ten years after
termination of the present Agreement .
7.2. Early Termination
If either Party acts in material breach of any of the terms and conditions
contained herein, the Party not in default shall be entitled to terminate this
Agreement forthwith upon giving notice in writing to the Party in default and
specifying the nature of the default, provided that the Party in default shall
not be entitled to rely on this provision. The Party in default shall have a
ninety (90) day delay after receipt of such a notice to cure its default .
Unless such default is cured no later than 90 days following the receipt of such
notice, this Agreement may be terminated at the option of the Party giving such
notice .
Any such termination hereunder shall not prejudice any rights or benefits
accrued prior to the date of termination .
7.3. Force Majeure
Neither Party shall be held liable for any failure or delay in supplying or
taking delivery of the Product in accordance with the terms and conditions of
the present Agreement , where such failure or delay is due to circumstances
beyond its reasonable control, including, without limitation, acts of God,
regulations or acts of Government, strikes, lock-outs, explosions ,implosions,
fires, floods, wars, insurrections, riots,embargoes .
The Party affected by said circumstances shall promptly notify the other Party
of the existence thereof and shall use every reasonable effort to eliminate or
correct the cause preventing performance of this Agreement as soon as possible .
Should CHLORALP, under such Force Majeure circumstances , have a shortfall of
Product then CHLORALP shall make its best efforts to minimize the consequences
of such Force Majeure for RPA and to resume as promptly as possible its
obligations under the present Agreement .
When the reason for invoking Force Majeure has ceased to exist, the affected
Party shall notify the other Party thereof and promptly resume its obligations
under this Agreement .
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7.4. Hardship
In entering in this long - term Agreement , the Parties hereto agree that it is
impracticable to make provision for every contingency which may arise during the
term thereof , and the Parties hereby agree it to be their intention that this
Agreement shall operate between them with fairness and without substantial and
disproportionate prejudice to the interests of either, and that, if in the
course of the performance of this Agreement unfairness or substantial and
disproportionate prejudice to either Party is expected or disclosed, then the
Parties will use their best endeavours to agree upon such action as may be
necessary to remove or modify such unfairness or prejudice and to reestablish as
much as possible the initial fairness of the present Agreement .
In particular , should CHLORALP stop producing that second grade quality of
Product , object of the present agreement , the Parties would meet to assess and
negotiate the feasibility of a first grade quality Product supply .
7.5. Assignment
No Party shall assign this Agreement to any third party without the prior
written consent of the other Party , which consent shall not be unreasonably
withheld.
Notwithstanding the hereinabove provision, and provided that its assignee
undertakes to take over all of its rights and obligations set forth in this
Agreement, each Party hereto shall have the right to assign this Agreement, upon
written notice to the other Party but without its prior written consent, to :
- any of its Affiliates, provided that , in such case, (i ) the assignor shall
remain jointly and severally liable of the implementation by the assignee of
its obligations under this Agreement,and (ii) if the assignee cease to be an
Affiliate company of the assignor, this Agreement shall have to be reassigned
by the assignee to the assignor ;
- its successor in interest as a result of a statutory merger or consolidation,
or to a company acquiring all or substantially all of its business including
the part concerned by this Agreement.
7.6. Applicable Law
This Agreement shall be governed by and construed and enforced in accordance
with the laws of France .
All disputes, differences, or controversies between the Parties arising out of
or relating to this Agreement, including the performance, breach, validity or
interpretation thereof, that can not be amicably resolved between them shall be
exclusively and finally settled under the Rules of Conciliation and Arbitration
of the International Chamber of Commerce by three arbitrators appointed in
accordance with said Rules. The arbitration proceedings shall take place in
Paris and shall be conducted in French and/or in English .
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ARTICLE 8 - MISCELLANEOUS
8.1.Entire Agreement
This Agreement and the schedule attached hereto represent the entire
understanding and agreement and supersedes all prior agreements, understandings
or arrangements among the Parties hereto with respect to the subject matter
hereof and can be amended, supplemented or changed, and any provision hereof can
be waived, only by written instrument making specific reference to this
Agreement and duly signed by or on behalf of the Parties to this Agreement .
8.2.Waiver
Failure by any Party to this Agreement to enforce complete and punctual
performance of any obligation of the other Party shall not be deemed a waiver of
such Party's right thereafter to enforce that or any other term hereof .
8.3. Severability
If at any time subsequent to the Effective Date, any provisions of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement
.There will be added automatically as a part of this Agreement a legal, valid
and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible .
8.4. Notices
Any notice or other communications required or permitted between the Parties
hereunder shall be sufficiently given if in writing and personally delivered or
sent by registered or certified mail, return receipt requested, postage prepaid,
or if sent by facsimile transmission with confirmation of receipt addressed as
follows or to such other address as the Parties shall have given notice of
pursuant hereto :
CHLORALP: Attn : General Manager
00 Xxxx XXxx Xxxxxx
00 000 Xxxxxxxxxx
XXX: Xxxxx-Xxxxxxx Agrochimie S.A.
14 / 00 xxx Xxxxxx Xxxxxx , 00 000 Xxxx
Attn : X.XXXXX
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, as of
the day and year hereinafter written .
made
in Paris
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on 17 OCT 1997
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XXXXX - XXXXXXX AGROCHIMIE S.A
By : /s/ X X Xxxxxxxx
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Title : VP Manufacturing Operations
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CHLORALP
By : /s/ Xxxxxxx X. Xxxxxxx
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Title :
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SCHEDULE 1 - SPECIFICATIONS
Schedule 1 will be provided upon request.
