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EXHIBIT 10.1
AMENDMENT TO
SECOND AMENDED AND RESTATED PRODUCTION AGREEMENT
This Amendment to Second Amended and Restated Production Agreement
(this "Amendment") made effective as of March 1, 2001 is by and between BP
Chemicals Inc., an Ohio corporation ("BP"), and Sterling Chemicals, Inc., a
Delaware corporation ("SCI"), with reference to the following facts:
A. BP and SCI are parties to a Second Amended and Restated Production
Agreement dated effective as of August 1, 1996 (as amended, the
"Acetic Acid Production Agreement").
B. BP and SCI wish to amend the Acetic Acid Production Agreement in
certain respects.
THE PARTIES THEREFORE AGREE THAT:
1. Amendment of Section 6.6(a) of the Acetic Acid Production
Agreement. Section 6.6(a) of the Acetic Acid Production Agreement is hereby
amended to read in its entirety as follows:
(a) For the period of time from December 12, 1988 through the end
of the First Additional Term, BP shall pay to the Company in cash an
amount equal to ******** of any Profit for each Contract Year as an
additional fee hereunder (such ********* share being the "Company
Profit Share"), payable as follows:
(i) for each Contract Year ending prior to or on December 31,
2000, BP shall pay the Company the Company Profit Share
within ninety (90) Days after the end of such Contract Year;
and
(ii) for each Contract Year during the period commencing on
January 1, 2001 and ending at the end of the First
Additional Term, BP shall, on or before the last Business
Day of the first Month following the end of each Quarter of
such Contract Year (with the exception that the first such
last Business Day shall be March 30, 2001 rather than April
30, 2001), (A) prepare in good faith and deliver to the
Company an estimate of the Company Profit Share, if any,
which will be payable to the Company with respect to such
Contract Year (the "Estimated Company Profit Share") , and
(B) pay the Company an amount
******* - CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FROM THE SECURITIES AND
EXCHANGE COMMISSION WITH RESPECT TO THE OMITTED MATERIAL. THE OMITTED MATERIAL
HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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equal to (x) such Estimated Company Profit Share times a
fraction, the numerator of which is the number of Quarters
elapsed in such Contract Year and the denominator of which
is four (4) minus (y) the aggregate amount of payments
previously made by BP to the Company under this clause (ii)
with respect to such Contract Year.
After the end of each Contract Year, BP shall calculate the
actual Company Profit Share for such Contract Year and the difference
between such Company Profit Share and the aggregate amount of payments
made to the Company with respect to such Contract Year based on
Estimated Company Profit Share. On or before March 1 of each year,
commencing with Xxxxx 0, 0000, XX shall send to the Company a
reconciliation statement showing (1) the additional amount to be paid
by BP, if Company Profit Share for the immediately preceding Contract
Year exceeded the aggregate amount of payments made to the Company
with respect to such Contract Year based on Estimated Company Profit
Share, or (2) the amount to be refunded by the Company, if Company
Profit Share for the immediately preceding Contract Year was less than
the aggregate amount of payments made to the Company with respect to
such Contract Year based on Estimated Company Profit Share. BP or the
Company, as appropriate, shall pay the amount indicated on the
reconciliation statement on or before March 31 of such year following
the relevant Contract Year.
The period from January 1, 2006 through July 31, 2006 shall
be considered a Contract Year and the period from July 1, 2006 through
July 31, 2006 shall be considered a Quarter. All Estimated Company
Profit Share payments during such period shall be appropriately
prorated (e.g., the Estimated Company Profit Share payment for the
first and second Quarters of 2006 would each be 3/7s of the Estimated
Company Profit Share for the period from January 1, 2006 through July
31, 2006 and the Estimated Company Profit Share payment for July 1,
2006 would be 1/7 of the Estimated Company Profit Share for such
period). BP will send the reconciliation statement for such
seven-month period on or before October 1, 2006 and BP or the Company,
as appropriate, shall pay the amount indicated on the reconciliation
statement on or before October 31, 2006.
2. No Other Changes. Except as expressly amended in this Amendment,
the terms and conditions of the Acetic Acid Production Agreement shall remain in
full force and effect. Upon the effectiveness of this Amendment, each reference
in the Acetic Acid Production Agreement to "this Agreement" shall mean and be a
reference to the Acetic Acid Production Agreement as amended hereby.
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3. Binding Effect. This Amendment shall inure to the benefit of, and
shall be binding upon, the parties and their respective successors and permitted
assigns.
4. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same agreement. It shall not be necessary
in making proof of this Amendment to produce or account for more than one such
counterpart.
5. Severability. Should any clause, sentence, paragraph, subsection or
Section of this Amendment be judicially declared to be invalid, unenforceable or
void, such decision will not have the effect of invalidating or voiding the
remainder of this Amendment, and the parties agree that the part or parts of
this Amendment so held to be invalid, unenforceable or void will be deemed to
have been stricken herefrom as if such stricken part or parts had never been
included herein.
6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW.
7. Entire Agreement. This Amendment and the Acetic Acid Production
Agreement set forth all of the promises, agreements, conditions, understandings,
warranties and representations between the parties with respect to the matters
cover hereby, and supersede all prior agreements, arrangements and
understandings between the parties, whether written, oral or otherwise. There
are no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, between the parties
concerning the subject matter hereof or thereof except as set forth herein or
therein.
INTENDING TO BE LEGALLY BOUND, the parties have execute this Agreement
through their duly authorized representatives effective as of the date specified
above.
BP CHEMICALS INC.
By: /s/ X. X. Xxxxxxxx
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STERLING CHEMICALS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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