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EXHIBIT 10.9
SULFUR SALES AGREEMENT
THIS AGREEMENT is entered into this 1st day of October, 1999, but is
effective as of January 1, 1999, regardless of the date of execution, by and
between XXXXXXXX 66 COMPANY, a division of Xxxxxxxx Petroleum Company, a
Delaware corporation ("Buyer"), and GPM GAS CORPORATION, a Delaware corporation
("GPM").
WHEREAS, the parties desire to update and replace the previous contract
between them for the sale from GPM to Buyer of Molten Sulfur with this
Agreement;
NOW THEREFORE, for and In consideration of the mutual promises and
covenants herein contained, the parties agree as follows:
ARTICLE I: SALE AND PURCHASE
1.1 GPM shall sell and deliver and Buyer shall purchase, receive, and pay,
on the terms and conditions set forth herein, the Molten Sulfur ("Product") as
set forth in the Attachment, which is incorporated by reference herein.
ARTICLE II: QUANTITY
2.1 The quantity of each Product to be sold and purchased hereunder shall
be the full output of Product at GPM gas processing plants, as more fully stated
in the Attachment.
2.2 For planning purposes only, GPM shall be responsible for providing to
Buyer on or before the first business day of each calendar month a forecast for
the next succeeding three-month period of anticipated Product sales or
deliveries under the terms of this Agreement.
ARTICLE III: TERM
3.1 Unless otherwise set forth in the Attachment to this Agreement, this
Agreement shall be effective from the date set forth in the first paragraph of
this Agreement (the "Effective Date") and it shall remain in full force and
effect for a period of one (1) year, then from month to month thereafter;
provided however, that either Buyer or GPM may terminate this Agreement as of
the end of the primary term or as of the end of any month thereafter by
providing the other party with at least six (6) months advance written notice of
termination.
ARTICLE IV: PRICE
4.1 The purchase price of or pricing formula for, the Product hereunder
shall be as set forth on the Attachment.
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ARTICLE V: SPECIFICATIONS
5.1 The specifications for the Product to be delivered hereunder shall be
as set forth on the Attachment.
ARTICLE VI: DELIVERY AND TITLE TRANSFER
6.1 GPM shall deliver to Buyer the Product at the custody transfer point or
points set forth on the Attachment or at such other location(s) as may be
mutually agreed (each, a "Delivery Point"), in a manner typical of industry
practice for pressure and temperature. Additionally, the description and each
location where the volume, pressure, and temperature of the Product are measured
(if required) shall be referred to herein as a "Measurement Point." The
Attachment shall designate whether title to, possession of, and risk of loss of
the Product shall pass from GPM to Buyer at either the designated Delivery Point
or the Measurement Point, respectively (the "Title Transfer Point"). GPM shall
have responsibility for and retain any liability with respect to the Product
prior to its delivery to Buyer at its designated Title Transfer Point(s), and
Buyer shall have responsibility for and assume any liability with respect to the
Product at and after its delivery to Buyer at its designated Title Transfer
Point(s).
ARTICLE VII: INVOICING AND PAYMENT
7.1 GPM shall invoice Buyer separately, for the Product sold and purchased
hereunder no more often than once during each calendar month for the preceding
month's sales. Such invoices shall be dispatched promptly by GPM, electronically
[electronic data interchange ("EDI") or equivalent] or otherwise, so as to be
received by Buyer within five (5) business days after the last day of the prior
calendar month. Buyer shall make payment to GPM on or before the 15th day
following Buyer's receipt of each invoice by EDI or equivalent wire transfer or
other means satisfactory to GPM, of immediately available funds to GPM's account
at such bank or depository as is designated in the invoice. If Buyer fails to
pay any amounts due and owing, such overdue amounts shall accrue interest at the
Default Rate from the due date, which interest shall be paid at the same time as
such overdue monthly payment is paid. In no event shall the Default Rate exceed
the maximum legal interest rate permitted under Texas law. "Default Rate" shall
mean a simple interest rate per annum (no compounding) equal to or lesser of (i)
two (2) points over prime, base, or equivalent annual rate published or
announced from time to time by The Chase Manhattan Bank, N.A. (or any successor
thereto) at its principal New York City office or such other bank as may be
agreed upon by the parties as in effect for any given day based on a year of
three hundred sixty (360) days (whether or not such rate is actually charged by
The Chase Manhattan Bank, N.A., or such other bank, as the case may be) or (ii)
the maximum rate permitted by applicable law.
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7.2 If Buyer, in good faith, disputes the amount of any statement or any
part thereof, Buyer shall pay to GPM such amount as Buyer concedes to be
correct, provided however, that if Buyer disputes the amount due, Buyer must
provide reasonable supporting documentation acceptable in industry practice to
explain the amount paid. If it is ultimately determined that Buyer owes the
disputed amount, immediately upon such determination, Buyer shall pay GPM that
amount with interest as calculated above.
7.3 If GPM has a reasonable doubt as to Buyer's financial responsibility
.and so advises Buyer; GPM may decline to make deliveries of Product except for
pre-payment, cash payable on delivery, or other mutually acceptable security. If
Buyer satisfies GPM, in GPM's reasonable opinion, as to Buyer's financial
responsibility, GPM may resume deliveries hereunder based on the terms provided
in the first paragraph of this Article VII. Additionally, GPM may withhold or
suspend deliveries, in addition to any and all other remedies available
hereunder in this Article VII, if (1) Buyer files a petition or otherwise
commences, authorizes, or acquiesces in the commencement of a proceeding or
cause under any bankruptcy or similar law for the protection of creditors or has
such petition filed or proceeding commenced against it, or (2) Buyer becomes
bankrupt or insolvent (however evidenced). GPM may exercise its rights under
this Article VII at any time and from time to time during the term of this
Agreement.
7.4 To the extent that any pricing under this Agreement is to be calculated
based upon historical cost, price, or other information (collectively,
"Historical Costs") that is in the possession of one party, upon request the
party possessing such Historical Costs shall promptly deliver to the other party
each month such information as required for calculating the purchase price for
the Product and preparing invoices with respect to such Product.
ARTICLE VIII: TAXES
8.1 Buyer shall be responsible for the payment or satisfaction of any and
all taxes (including any increase in or additional tax of charge or charge
imposed) which may be imposed by Federal, State, or local taxation authorities
upon or after title to sulfur delivered hereunder has passed to Buyer, and shall
either (1) pay or (2) demonstrate its exemption from any sales taxes imposed
upon or levied coincident with the transfer of title to sulfur delivered from
GPM to Buyer, including but not limited to sales, use, gross receipts or other
similar taxes, but excluding income, excess profit, franchise, severance or
production taxes. Buyer shall indemnify, defend, and hold GPM harmless from any
and all liability for such taxes for which Buyer is responsible herein.
8.2 All other taxes, fees, or governmental charges assessed on the Product
at or before its sale to Buyer shall be assumed by and paid by GPM, and GPM
shall indemnify, defend, and hold Buyer harmless from any and all liability for
such taxes for which GPM is responsible.
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ARTICLE IX: RECORDS; AUDIT
9.1 Except as otherwise required by law, rule, or regulation, each party
shall maintain true and correct records pertaining to this Agreement and all
transactions related thereto and shall maintain such records for a period of at
least two (2) years from the date of their origination or receipt. On written
request by either party and at its expense, either party may have its
representatives audit the records of the other party relating to performance of
this Agreement at any reasonable time during the term of this Agreement and for
two (2) years thereafter for the purpose of confirming the accuracy of such
records and the manner in which such records have been used in the
administration of this Agreement; provided however, that such accountants shall
not disclose to the party requesting the audit any confidential information
obtained during such audit and shall promptly report to both Buyer and GPM only
the results of the audit and whether same shows compliance with the terms of
this Agreement, or as the case may be, a report setting forth the facts
detailing the failure to comply with the terms of this Agreement. Unless
required by legal or administrative process, a party as well as its agents,
representatives, employees, auditors, independent contractors, officers, and
directors who obtain actual or constructive knowledge of any information
obtained relative to any audit, shall treat and shall be required by the party
to this Agreement with which they are employed or retained to treat, as
confidential and not disclose, divulge, reveal, or report, directly or
indirectly, to any third party any information obtained during any audit without
the other party's prior written consent. If any legal or administrative process
requires disclosure of any information obtained during any audit, a party shall
provide prompt written notice to the other party of such process, thereby
permitting the other party to seek a protective order or other appropriate
remedy as it deems necessary in its sole discretion.
ARTICLE X: NOTICES
10.1 All notices provided for herein shall be considered as properly given
if in writing and delivered personally or sent by overnight courier, telex, fax,
or first class mail with postage prepaid, duly directed to the addresses of the
parties hereto as set forth below:
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Buyer: Xxxxxxxx 66 Company
000 Xxxxx Xxxx.
Xxxxxxxxxxxx, XX 00000
Attn: Sulfur Marketing Manager
Phone: (000) 000-0000
Fax: (000) 000-0000
GPM: GPM Gas Corporation
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Gas Marketing
Phone: (000) 000-0000
Fax: (000) 000-0000
or at such other address as either party shall from time to time designate for
the purpose by written notice to the other party.
ARTICLE XI: CLAIMS
11.1 Neither GPM nor Buyer shall be liable to the other for any variation
in quality or quantity of any Product unless the other party provides it with
written notice of the nature and details of the claim within 366 days of the
date of receipt of the affected Product or the date such Product was due to be
delivered.
11.2 Except as otherwise provided in this Agreement, the remedies available
to each party for any claims regarding a Product (including, but not limited to,
any claims of property damage, personal injury, or wrongful death due to a
breach of warranty or contract, negligence, or strict liability, and claims for
losses or damages resulting from the processing, subsequent use, or distribution
of the Product, or for failure to, timely deliver or accept delivery of the
Product) shall be as provided for under Article II of the Business and Commerce
Code of the State of Texas as in effect on the date of this Agreement (hereafter
referred to as the "UCC").
11.3 Neither party shall be liable to the other for any lost profits or any
indirect, consequential, special, incidental, or contingent damages in
connection with the sale or purchase of any Product. Neither party shall be
entitled to terminate this Agreement for the other's failure to perform unless
such nonperforming party evinces a clear intention to no longer be bound to
perform a material obligation under the terms of this Agreement. In no event
shall Buyer or GPM be liable for exemplary or punitive damages, whether or not
caused by, or resulting from the negligence or other wrongdoing of either party
in connection with the sale or purchase of any Product.
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ARTICLE XII: FORCE MAJEURE
12.1 No failure or omission to carry out or to observe any of the terms,
provisions, or conditions of this Agreement, except the failure to make payment
for sums due hereunder, shall give rise to any claim by GPM or Buyer against
the other, or be deemed a breach of this Agreement, if the same shall have been
or shall be caused by or arise out of any event of force majeure, which term as
used herein shall include (but only to the extent that the affected party is
unable to perform due to causes and events that are beyond the reasonable
control of the affected party), but not be limited to, war, hostilities, acts of
the public enemy or of belligerents, sabotage, blockage, revolution,
insurrection, riot or disorder, requisitions or rationing, whether imposed by
law, decree, or regulations or by voluntary cooperation of industry at the
insistence or request of any governmental authority or person purporting to act
therefor; compliance with allocation programs, voluntary or mandatory, including
reduction or cessation of production by reason of imposition by any governmental
authority or person purporting to act with government authority, acts of God,
fire, frost, earthquake, storm, or lightning, epidemic, quarantine, strikes or
combination of workmen lockouts or other labor disturbances, explosion,
accidents by fire or otherwise to pipe, storage facilities, installations,
machinery, plant outages (either unanticipated or for purposes of preventive
maintenance), delays in acquiring or inability to acquire permits or licenses
necessary to enable the parties hereto to perform, lack of adequate fuel, power,
raw materials, labor, containers or transportation facilities, delays or
shortages caused by breakdowns, failures or unavailability of materials or
equipment breakage, mechanical breakdowns or accident to machinery; failure, or,
inability of a plant, terminal, equipment, or any component therein including,
without limitation, computers or computer systems or components, computer chips,
hardware or software applications to property and correctly receive, process,
transmit, or provide electronic data; delay, breakdown, or destruction of a
plant, terminal, or equipment; provided however, that the party so affected
thereby will exercise reasonable efforts pursuant to prudent industry practice
to prevent the occurrence of the force majeure event and to cure the event of
force majeure as quickly as possible so that the party so affected will be able
to carry out and observe all of the terms, provisions, and conditions of this
Agreement, but such party shall not be required to settle any labor disputes
giving rise to an event of force majeure hereunder.
ARTICLE XIII: WAIVER
13.1 No waiver of any breach of this Agreement shall be held to be a waiver
of any other or subsequent breach. The right of either party to require strict
performance by the other party of any or all obligations imposed upon such other
party by this Agreement shall not in any way be affected by previous waiver,
forbearance, or course of dealing.
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ARTICLE XIV: WARRANTIES
14.1 GPM warrants that Product will be produced in accordance with its
designated specifications set forth in the Attachment and in compliance with the
requirements of the Fair Labor Standards Act of 1938, as amended, and that GPM
will convey good and unencumbered title thereto.
14.2 THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER
WARRANTIES (WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED), INCLUDING, WITHOUT
LIMITATION, WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE.
ARTICLE XV: MISCELLANEOUS PROVISIONS
15.1 Conflict of Interest. Neither Buyer nor GPM shall, and neither party
shall require that its subcontractors shall, pay any commissions, fees, or grant
any rebates to any employee, officer, or agent of the other party nor favor
employees, officers, or agents of the other party with gifts or entertainment of
significant cost or value, nor enter into any business arrangement with
employees, officers, or agents of the other party other than as a representative
of the other party, without the other party's written approval.
15.2 Assignment. All of the terms, conditions, and provisions hereof shall
extend to and be binding upon the respective parties hereto, their successors
and assigns; provided however, that neither party shall assign this Agreement or
any interest herein without the prior written consent of the other party, which
shall not unreasonably be withheld or delayed; except that either party may,
without the consent of the other, assign this Agreement or any interest herein
to (i) a successor of all or a material portion of its business to which this
Agreement relates, (ii) a new business entity resulting from a merger or joint
venture involving a party to this Agreement or all or substantially all of its
business and assets, or (iii) to a person, firm, or legal entity acquiring all
or substantially all or a material portion of the business and assets of a party
to which this Agreement relates.
15.3 Entire Agreement. This instrument (including the Attachment hereto)
contains the entire Agreement between the parties regarding the sale, purchase,
and delivery of Product during the term hereof; and all prior promises,
agreements, or warranties, written or verbal, for the sale of Product shall be
canceled and superseded hereby and shall be of no further force or effect unless
embodied herein. No modifications of this Agreement shall be valid unless in
writing and signed by both parties, and no modifications shall be effected by
the acknowledgment or acceptance of any purchase orders or printed forms
containing different conditions. If there is any conflict between the terms set
forth
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in this Agreement and the Attachment, the terms set forth in the Attachment
shall govern.
15.4 Applicable Law. THE VALIDITY, INTERPRETATION, AND PERFORMANCE OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REFERENCE
TO PRINCIPLES OF CONFLICTS OF LAW.
15.5 No Third Party Beneficiaries. Nothing in this Agreement is intended or
will be construed to confer upon or give any person or entity other than the
parties any rights or remedies under or by reason of this Agreement or any
transaction contemplated hereby.
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15.6 Counterparts. This Agreement and any amendment thereto may be executed
in one or more counterparts, each of which when so executed shall be deemed to
be an original but all of which taken together shall constitute one and the same
agreement.
15.7 Severability. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any rule or law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party.
IN WITNESS WHEREOF, this Agreement is executed for each party by and
through its respective officers duly authorized, as of the date first above
written.
GPM GAS CORPORATION
By: /s/ XXXXXXXXXXX XXXX
--------------------------------
Name: Xxxxxxxxxxx Xxxx
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Title: Vice President
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XXXXXXXX 66 COMPANY division
of Xxxxxxxx Petroleum Company
By: /s/ X.X. XXXXXXXX
--------------------------------
Name: X.X. Xxxxxxxx
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Title: Sulfur Marketing Manager
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GPM - XXXXXXXX 66 COMPANY SULFUR
SALES AGREEMENT DATED OCTOBER 1, 1999
ATTACHMENT 1
Product: Molten Sulfur
Buyer: Xxxxxxxx 66 Company
Seller: GPM Gas Corporation
Volume: Full Output of molten sulfur of existing and existing and
future GPM-operated gas Processing plants. The presently
operating GPM Plants producing molten sulfur include the
Artesia, Xxxxxx, and Xxxxx Ranch Plants in southeast New
Mexico and the Fullerton and Goldsmith Plants in West Texas.
Forecasting Party: GPM
Price: (a) Buyers Plant Netback Price less the higher of 5% or
$1/long ton. The "Plant Netback Price" is defined as Buyer's
actual gross resale price for the Product, less freight,
discounts, allowances, and taxes borne by Buyer on sales of
Product hereunder and not recovered by Buyer on resale.
Buyer will market the Product diligently and in good faith
consistently with its marketing of the same Product and
similar products from other sources.
(b) Buyer shall be entitled to a minimum net purchase/resale
margin of $1/long ton. In the case of any resale of Product
which does not allow Buyer to recover its out of pocket
costs for freight, discounts, allowances, and taxes borne by
Buyer and not recovered by Buyer on resale of Product plus
$1/long ton out of resale revenues, the price shall be
reduced accordingly, and GPM shall reimburse Buyer as
necessary to allow Buyer to recover a net position on the
purchase and resale of $1/long ton of Product
(c) Buyer shall notify GPM in writing as soon as Buyer gains
knowledge of the situation of each instance in which a
reduction of the Plant Netback Price is expected or will be
experienced under the preceding subparagraph. Subject to the
minimum duration of any firm resale commitments that have
been made by Buyer, not to exceed ninety (90) days, Buyer
shall then afford GPM an opportunity to make its own Product
sales or alternate disposition arrangements in lieu of
deliveries to Buyer at Plant Netback Prices reduced under
subparagraph (b) above. If the subparagraph (b) price
reduction continues for a period of three (3) months, then
GPM shall thereafter have a right to terminate this
Agreement
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upon ninety (90) days advance written notice to Buyer
effective as of the end of a month.
Measurement Method: Tank truck scales
Pressure Requirements: None
Temperature Requirements: Between 280 degrees F to 300 degrees F
Delivery Point/ At the point that Product passes through the threshold of
Title Transfer manway of the truck designated
Point:
Measurement Point: Goldsmith, Texas Plant - truck customer weighted at tank
truck scales at Xxxxxx Gas Plant near Odessa, Texas.
Artesia, New Mexico Plant - tank truck scales at Xxxxxx Gas
Dayton Rack near Artesia, New Mexico.
All Plants* - Rail cars will be weighed at tank truck scales
in Seagraves, Texas or at the GPM's Douro Rack near Odessa,
Texas.
*Present Plants: Goldsmith Plant - Goldsmith, Texas
Xxxxxx Plant, Oil Center, New Mexico
Xxxxx Ranch Plant - Hobbs, New Mexico
Fullerton Plant - Xxxxxxx, Texas
Title Transfer Point: Delivery Point
Special Provisions: For as long as GPM produces this Product during the term
of this Agreement, Buyer shall retain exclusive right to
sell this product. In the event GPM shall provide Buyer
with a least twelve (12) months prior notification before
discontinuing the manufacture of the Product.
Specifications:
Purity 99.5%
Carbon 0.25% xxx
Xxx 0.05% max
Acidity 0.001% max
Tellurium 0.002% max
Selenium 0.002% max
