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Exhibit 10.15
EXECUTION DOCUMENT
INTERMEDIATES SUPPLY AGREEMENT
between
THE ▇.▇.▇▇▇▇▇▇▇▇ COMPANY
and
THE GEON COMPANY
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EXECUTION DOCUMENT
TABLE OF CONTENTS
Page
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Article 1 Product and Quality 1
Article 2 Term of Agreement 2
Article 3 Quantities 4
Article 4 VCM Exchanges 6
Article 5 Measurements and Tests 6
Article 6 Destinations and Shipping Terms 7
Article 7 Prices 8
Article 8 Terms of Payment 16
Article 9 Warranties, Claims and Limitations 17
Article 10 Force Majeure 18
Article 11 Fees, Taxes and Governmental Charges 19
Article 12 Assignments 20
Article 13 Indemnification 21
Article 14 Arbitration/Dispute Resolution 22
Article 15 General Provisions 24
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EXECUTION DOCUMENT
INTERMEDIATES SUPPLY AGREEMENT
THIS INTERMEDIATES SUPPLY AGREEMENT (this "Agreement") is entered
into as of ___________,1993, by and between THE ▇. ▇. ▇▇▇▇▇▇▇▇ COMPANY, a New
York corporation ("BFG"), and THE GEON COMPANY, a Delaware corporation ("Geon").
W I T N E S S E T H:
--------------------
WHEREAS, BFG wishes to sell and deliver certain chemical products to Geon
in accordance with the terms and provisions hereof; and
WHEREAS, Geon wishes to purchase and receive such chemical products from
BFG in accordance with the terms and provisions hereof;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
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PRODUCT AND QUALITY
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BFG shall sell and deliver to Geon and Geon shall purchase and receive from
BFG ethylene, chlorine, vinyl chloride monomer, and ethylene dichloride meeting
the specifications set forth in Exhibit 1, which is attached hereto and
incorporated by reference herein (such products being hereinafter individually
referred to as "Ethylene," "Chlorine," VCM," and "EDC," respectively, and
collectively as the "Products"). With respect to EDC, BFG shall be obligated to
sell and deliver, and Geon shall be obligated to purchase and receive EDC only
if and at such time as BFG builds or acquires an EDC manufacturing facility at
or near BFG's ▇▇▇▇▇▇▇ City, Kentucky manufacturing plant (the "▇▇▇▇▇▇▇ City
Plant").
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ARTICLE 2
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TERM OF AGREEMENT
-----------------
A. TERM GENERALLY. This Agreement shall be effective as of the date at
which the registration statement to be used for the Initial Public Offering by
Geon is declared effective by the Securities and Exchange Commission, and shall
terminate as follows: As to Ethylene and Chlorine this Agreement shall terminate
on March 1, 2000 (except as provided in Paragraph C of this Article 2); as to
VCM, this Agreement shall terminate on February 29, 1996 (except as provided in
Paragraph C of this Article 2), unless Westlake Monomers Corporation
("Westlake") terminates, as of January 1, 1996, its deliveries of VCM to BFG
under the Conversion Agreement, between BFG Intermediates Company Inc. ("BFGI")
and Westlake, dated March 1, 1990 (the "Conversion Agreement"), in which case
this Agreement shall terminate as to VCM as of January 1, 1996 (except as
provided in Paragraph C of this Article 2); as to EDC, this Agreement shall
terminate on March 31, 2003. The Conversion Agreement is hereby incorporated by
reference herein.
B. EARLY TERMINATION OF WESTLAKE AGREEMENTS. Except as provided in
Paragraph C of this Article 2, in the event that the Conversion Agreement is
terminated before January 1, 1996, for any reason, this Agreement shall
terminate as to VCM as of the date of such termination of the Conversion
Agreement. Except as provided in Paragraph C of this Article 2, in the event
that the Ethylene Supply Agreement, between BFGI and Westlake, dated as of March
1, 1990 (the "Ethylene Supply Agreement") is terminated before March 1, 2000,
for any reason, this Agreement shall terminate as to Ethylene as of the date of
termination of the Ethylene Agreement. Except as provided in Paragraph C of this
Article 2, in the event that the Chlorine Supply Agreement, between BFGI and
Westlake, dated as of March 1, 1990 (the "Chlorine Supply Agreement") is
terminated before March 1, 2000, for any reason, this Agreement shall terminate
as to Chlorine as of the date of termination of the Chlorine Supply Agreement.
The Ethylene Supply Agreement and the Chlorine Supply Agreement are hereby
incorporated by reference herein.
C. EXTENSIONS. Notwithstanding any provision of this Agreement to the
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contrary, m the event that the exchange rights of Westlake under the Ethylene
Supply Agreement and/or the Chlorine Supply Agreement are extended beyond March
1, 2000, as evidenced by a written document to that effect between BFG and
Westlake, this Agreement shall be extended as to Ethylene and/or Chlorine, as
the case may be, for the term of such extension(s) of the Ethylene Supply
Agreement and/or the Chlorine Supply Agreement. provided that this Agreement
shall not be so extended beyond September 1, 2000 without the prior written
consent of Geon.
D. TERMINATION ON SALE OF FACILITIES. This Agreement may be terminated, as
to Ethylene or Chlorine only, by either party upon (1) the sale of BFG's
Ethylene and/or Chlorine manufacturing facilities located at the ▇▇▇▇▇▇▇ City
Plant. as the case may be, plus (2) twelve (12) months prior written notice, or
such longer or shorter notice as may be mutually agreeable to BFG and Geon. In
such event. this Agreement shall continue as to the manufacturing facilities
which are not sold. This Agreement shall also continue as to VCM purchases and
VCM exchanges in accordance with the terms and conditions hereof and of the
Conversion Agreement.
E. TERMINATION ON SALE OF BFG SUBSIDIARY. In the event that BFG exercises
its right. under Article 12 hereof, to assign this Agreement to a subsidiary of
BFG, which subsidiary operates the Ethylene and/or Chlorine manufacturing
facilities located at the ▇▇▇▇▇▇▇ City Plant and/or EDC manufacturing facilities
hereafter built or acquired by BFG at or near the ▇▇▇▇▇▇▇ City Plant. and BFG
subsequently decides to sell, transfer, convey, or otherwise dispose of all or a
controlling portion of the common stock of such subsidiary, then this Agreement
may be terminated, as to Ethylene, Chlorine, and/or EDC, as the case may be, by
either party, at or after the closing of such sale, transfer, conveyance, or
disposition.
F. EARLY TERMINATION BY BFG. This Agreement may also be terminated, in
whole or in part. by BFG for any reason upon twelve (12) months prior written
notice to Geon, or longer if mutually agreed.
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ARTICLE 3
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QUANTITIES
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A. ETHYLENE AND CHLORINE. BFG agrees to sell and deliver, or cause to be
delivered, pursuant to the Ethylene Supply Agreement or the Chlorine Supply
Agreement, and Geon agrees to purchase from BFG and to receive from or on behalf
of BFG, at Geon's ▇▇▇▇▇▇▇, Texas manufacturing plant (the "▇▇▇▇▇▇▇ Plant"),
Ethylene and Chlorine m amounts equal to all amounts of Ethylene and Chlorine
that BFG is obligated to accept on an exchange basis from Westlake under the
terms and provisions of the Ethylene Supply Agreement. the Chlorine Supply
Agreement and the Conversion Agreement.
B. VCM. BFG agrees to sell and deliver, or cause to be delivered, and Geon
agrees to purchase from BFG and to receive from or on behalf of BFG, pursuant to
the terms and conditions of the Conversion Agreement. VCM in amounts equal to
the entire amount of the VCM received by BFG from Westlake at or near the
▇▇▇▇▇▇▇ City Plant under the terms of the Conversion Agreement (less any amounts
needed for BFG's own internal needs), regardless of whether received by BFG from
Westlake on a contract manufacturing basis or on a direct sale basis. Geon shall
provide BFG with forecasts of its estimated VCM needs hereunder at least thirty
(30) days prior to the beginning of each quarter. Geon shall participate with
BFG in annual production forecast reviews with Westlake, as contemplated by
Section 2.4 of the Conversion Agreement.
C. EDC. In the event that BFG builds or acquires an EDC manufacturing
facility at or near the ▇▇▇▇▇▇▇ City Plant. BFG shall sell and deliver and Geon
shall purchase and receive from BFG, for shipment to such locations as Geon
shall designate, EDC in amounts equal to the entire output of such EDC
manufacturing facility, estimated to be up to a maximum of eight hundred and
fifty million pounds per year of EDC (or such other amount which in BFG's
opinion represents the maximum turndown rate of the Ethylene Plant). The parties
will agree to an increase in the capacity of the EDC plant and the maximum
annual quantity of EDC to be purchased by Geon pursuant to this Agreement if
they mutually determine that such increases may result in significant economic
benefits for each of them.
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If BFG decides to build an EDC manufacturing facility at or near ▇▇▇▇▇▇▇ City,
Kentucky, BFG will consult with Geon with respect to that decision. Geon will
have the opportunity to supply the process design for the EDC unit. BFG will
further consult with Geon regarding the size of the facility and the
construction design, engineering, procurement and installation of the EDC unit.
facilities for the receipt. storage and handling of additional Chlorine and the
storage, loading and transportation of EDC; and the permits that might be
required. Geon will be given an opportunity to participate in the supervision of
purchasing and construction and in the negotiation of any purchase contracts for
additional Chlorine that might be necessary to supply Chlorine to such facility.
D. NOTICES RE EXCHANGES WITH WESTLAKE Geon shall provide BFG with written
notice of the termination and expiration dates and quantities of each of its
Ethylene and Chlorine supply contracts for supply of Ethylene or Chlorine to the
▇▇▇▇▇▇▇ Plant and to one or more converters for conversion into EDC for
consumption by Geon at the ▇▇▇▇▇▇▇ Plant. Such notices shall be provided as
required by and in accordance with the terms and provisions of the Ethylene
Supply Agreement or the Chlorine Supply Agreement. as the case may be, provided,
however, that any such notice shall be delivered by Geon to BFG at least ten
(10) days in advance of the date on which identical notice must be given to
Westlake under the terms of the Ethylene Supply Agreement or the Chlorine Supply
Agreement. as the case may be. Within 10 days after receipt of written notice
from Westlake of Westlake's intention to exercise its exchange rights to
exchange Ethylene or Chlorine under the Ethylene Supply Agreement or the
Chlorine Supply Agreement. BFG shall give written notice to Geon regarding BFG's
intention to sell and deliver such quantities of Ethylene or Chlorine to Geon
pursuant to the terms of this Agreement. Such notice shall specify, to the
extent communicated by Westlake, the commencement date of such sales and
deliveries and the quantities and expiration dates of such sales and deliveries.
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ARTICLE 4
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VCM EXCHANGES
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Geon shall perform, on behalf of BFG, all obligations that BFG may have
under Section 7.13 ("VCM Exchanges") of the Conversion Agreement. Accordingly,
BFG (or Westlake as BFG's designee) shall have the right to receive from Geon,
in exchange (on a pound-for-pound basis with no differential payment by either
party) for deliveries of VCM to Geon at the ▇▇▇▇▇▇▇ City Plant. like quantities
of VCM (meeting the specifications for VCM set forth in Exhibit 1 hereto)
delivered by Geon to BFG (or such designee) at the ▇▇▇▇▇▇▇ Plant sufficient to
enable BFG to satisfy such obligations.
Within ten (10) days alter receipt of written notice from Westlake of
Westlake's intention to exercise its exchange rights for VCM under the
Conversion Agreement. BFG shall give written notice to Geon regarding BFG's
needs for VCM to satisfy its exchange obligations to Westlake under the
Conversion Agreement. Such notice shall specify the commencement date of such
deliveries, the quantities and expiration date of such deliveries, and the
method of delivery. All terms and conditions of the Conversion Agreement that
are applicable to such VCM exchanges shall be deemed incorporated herein by
reference. BFG shall request of Westlake that annual exchange quantities be
scheduled equitably among the four calendar quarters.
ARTICLE 5
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MEASUREMENTS AND TESTS
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A. Geon shall be responsible for measuring the quantities of the Products
delivered to or at the ▇▇▇▇▇▇▇ Plant by or on behalf of either party hereunder
and for sampling, testing, analyzing, and evaluating the quality (i.e.,
conformance to the specifications set forth in Exhibit 1 hereto) of all Products
delivered to or at the ▇▇▇▇▇▇▇ Plant hereunder. Geon shall retain, for a period
of at least one (1) year, complete records of such measurements, samples, tests,
analyses, and evaluations and shall make the same
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available to BFG upon reasonable notice during normal business hours. BFG shall
have the right to obtain copies of such measurements, samples, tests, analyses,
and evaluations.
B. Geon shall provide reasonable assistance to BFG in the event of any
Product warranty claims by Geon for which BFG decides to make an analogous claim
with Westlake
C. BFG shall obtain certificates of analysis from Westlake for all
shipments of Product (to the extent BFG is entitled to receive such certificates
under the Ethylene Supply Agreement. the Chlorine Supply Agreement. and the
Conversion Agreement). BFG shall provide Geon at the time of shipment with
copies of all such certificates of analysis provided by Westlake.
ARTICLE 6
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DESTINATIONS AND SHIPPING TERMS
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A. ETHYLENE AND CHLORINE. Ethylene and Chlorine may be delivered to Geon
and shall be accepted by Geon on behalf of BFG at Geon's ▇▇▇▇▇▇▇ Plant. in
accordance with the exchange provisions of the Ethylene Supply Agreement and the
Chlorine Supply Agreement. All shipments will be F.O.B. Geon's ▇▇▇▇▇▇▇ Plant.
The parties agree to use their best efforts to cooperate with each other in
arranging exchanges of Ethylene and Chlorine so as to fulfill the parties'
obligations under this Agreement and under the Ethylene Supply Agreement and the
Chlorine Supply Agreement in the most expeditious and cost-effective manner for
both parties. BFG shall request of Westlake that Westlake provide to ▇▇▇▇▇▇▇▇
and to Geon by October 1 of each calendar year, a schedule of the chlorine
shipments to Geon for the following year.
B. VCM AND EDC. VCM and EDC (if any) shall be delivered to Geon F. O. B.
the ▇▇▇▇▇▇▇ City Plant. Tide to and risk of loss for all VCM (whether purchased
or exchanged) shall pass to Geon at the Point of Product Delivery (as defined in
the Conversion Agreement). Tide to and risk of loss for all EDC shall pass to
Geon at a point of EDC delivery at ▇▇▇▇▇▇▇ city to be established by BFG. Geon
shall provide railcars
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and/or barges necessary to move the VCM and EDC to Geon's desired destinations.
Geon shall bear all loading, freight and insurance costs associated with the
movement of VCM and EDC from the ▇▇▇▇▇▇▇ City Plant to Geon's desired
destinations.
C. DELIVERY OF VCM BY GEON FOR EXCHANGE TO WESTLAKE. Geon shall deliver VCM
(referred to in Article 4 hereof) to Westlake, as BFG's designee, at the ▇▇▇▇▇▇▇
Plant. for exchange by BFG with Westlake, pursuant to the terms and provisions
of the Conversion Agreement.
ARTICLE 7
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PRICES
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A. ETHYLENE. The purchase price to be paid by Geon to BFG for Ethylene
delivered to Geon pursuant to this Agreement shall be determined on a monthly
basis and shall be equal to the "Ethylene Market Price" during such month.
1. For purposes of this Agreement. the term "Ethylene Market Price" shall
mean Geon's weighted average cost for Ethylene (which meets or exceeds
the specification for that Ethylene which is delivered to Geon
pursuant hereto) delivered during the relevant month or for use at
Geon's ▇▇▇▇▇▇▇, Texas VCM plant (the "▇▇▇▇▇▇▇ Plant") for EDC/VCM
production under purchase contracts between Geon and Ethylene
suppliers, which contracts have been negotiated and administered on an
arm's length basis.
(a) Except as provided in subsection (b) of this Section 7.A.1, there
shall be included in the computation of such weighted average
cost all costs that Geon incurs for transportation and insurance
for Ethylene purchased from such suppliers, and the delivered
costs of Ethylene which Geon purchases and delivers or causes to
be delivered to EDC producers for conversion into EDC on behalf
of Geon, which EDC is intended by Geon
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to be delivered at the ▇▇▇▇▇▇▇ Plant and used there to produce
VCM or to be delivered elsewhere under an exchange agreement.
(b) There shall be excluded from the computation of such weighted
average cost
(i) Ethylene purchased or otherwise acquired by Geon from a
joint venture or other joint enterprise to which Geon or a
subsidiary of Geon is a party, and Ethylene purchased or
acquired by Geon from a party (or from an affiliate of such
party) to such joint venture or other joint enterprise;
(ii) The quantities and costs of Ethylene purchased other than
pursuant to a contract having an initial term of at least
twelve (12) months;
(iii) Ethylene purchased by a third party other than Geon and
delivered to the ▇▇▇▇▇▇▇ Plant for toil conversion into EDC,
VCM or PVC, and Ethylene purchased by Geon from such third
party or from an affiliate thereof for such toll conversion;
and
(iv) Ethylene delivered pursuant to this Agreement.
(c) Rebates and discounts which are accrued but not earned' and which
if earned would be included in such weighted average cost. may be
used to compute an initial weighted average cost. When such
accrued rebates or discounts are earned' or in the alternative if
they are not earned' appropriate adjustments will
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be made in order to determine the actual weighted average cost of
Ethylene for the relevant period. Any monies so determined to be
owing by Geon to BFG or by BFG to Geon shall be paid or credited
promptly.
2. In the event that during any period of time exceeding a calendar
quarter the quantity of Ethylene that would be used to determine
Geon's weighted average cost of Ethylene is twenty-five percent or
less of such total Ethylene purchase requirements, then at BFG's
request, the purchase price to be paid to BFG by Geon for Ethylene
delivered pursuant to this Agreement during such quarter shall be the
"Alternate Market Price." The Alternate Market Price shall be the sum
of:
(a) BFG's actual per pound cash cost to produce Ethylene from propane
at the ▇▇▇▇▇▇▇ City Plant (which actual cash cost shall be
determined pursuant to the methodology which is currency employed
by Chem Data Inc. to compute and publish the cash costs of
manufacturers to produce ethylene from propane, but using instead
for purposes of this Agreement BFG's actual cash costs as
reported in its internal accounting Systems); plus
(b) 1.5 cents per pound for each pound of Ethylene delivered to Geon
pursuant to this Agreement during such period; plus
(c) An additional amount which shall be a "percentage of the margin
share." For such purposes the "margin share" will be the
difference between (i) the benchmark price per pound of Ethylene,
F.O.B. Gulf Coast, as reported in CMAI, less (ii) the per pound
cash cost as determined pursuant to subparagraph (a) above. The
"percentage of margin share" to
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be used in the computation of Alternate Market Price shall equal:
0% of the first 5cts. of any "margin share"; plus 50% of the next
5cts. of any "margin share"; plus 75% of any "margin share" that
is greater than 10cents.
(d) If during the term of this Agreement, Geon is able to secure a
contract for ethylene supply which (i) qualifies for inclusion in
the requirements of Section 7.A.1 and (ii) the volume is in
excess of 200 million pounds per year and (iii) the term of the
contract is three (3) years or longer, then the pricing
provisions, including any and all considerations which affect the
price of Ethylene, may be substituted in this Section 7-A.2 as an
Alternate Market Price for the term of said contract.
3. Notwithstanding anything in this Article 7.A to the contrary, in no
event will the price paid by Geon to BFG be less than BFG's actual per
pound cash cost to produce Ethylene from propane at the ▇▇▇▇▇▇▇ City
Plant (which actual cash cost shall be determined pursuant to the
methodology which is currency employed by Chem Data Inc. to compute
and publish the cash costs of manufacturers to produce ethylene from
propane, but using instead for purposes of this Agreement BFG's actual
cash costs as reported in its internal accounting systems) for such
period, plus 1.5 cents per pound for each pound of Ethylene delivered
to Geon pursuant to this Agreement during such period (hereinafter
referred to as the "Price Floor").
4. In the event that during any calendar month the Ethylene Market Price
(determined pursuant to Section 7.A.1 hereof), or the Alternate Market
Price (determined pursuant to Section 7.A.2(d) hereof) if then
applicable,
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is less than the Price Floor (determined pursuant to Section 7.A.3
hereof), the difference between the Price Floor and either the
Ethylene Market Price or such Alternate Market Price (as then
applicable according to the terms of this Agreement) shall be
multiplied by the number of pounds of Ethylene delivered to Geon
pursuant to this Agreement during such month. The product of such
multiplication shall be a dollar value which for purposes of this
Agreement shall be referred to as the 'banked ethylene credit." The
value of the banked ethylene credit will be applied as a credit
against, and reduction of, the amounts owing by Geon pursuant to
Section 7.A.1 or Section 7.A.2 of this Agreement until the balance of
such banked ethylene credit is zero. In no event. however, will the
banked ethylene credit reduce the price to be paid by Geon to BFG in
any month pursuant to either Section 7.A.1 or Section 7.A.2 to an
amount which is less than the Floor Price for that month. In the event
that the Ethylene portion of this Agreement is terminated, any banked
ethylene credits which then exist may be added to and used as negative
values for Chlorine pursuant to Section 7.B.4 of this Agreement. Any
banked ethylene credit which might exist at the complete termination
of this Agreement will not be paid in cash to Geon or otherwise
credited to Geon or applied against other monies that may then be
owing by Geon to BFG.
B. Chlorine. The purchase price to be paid by Geon to BFG for Chlorine
delivered to Geon pursuant to this Agreement shall be determined on a monthly
basis and shall be equal to "Chlorine Market Price" during such month. For
purposes of this Agreement, the term "Chlorine Market Price" shall mean Geon's
weighted average cost for Chlorine (which meets or exceeds the specification for
Chlorine delivered to Geon pursuant hereto) delivered during the relevant month
to or for use at the ▇▇▇▇▇▇▇ Plant for EDC/VCM production under contracts with
Chlorine suppliers, which contracts have been negotiated and administered on an
arm's length basis.
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1. Except as provided in Section 7.B.2 hereof, there shall be included in
the computation of such weighted average cost:
(a) AU costs that Geon incurs for transportation and insurance for
Chlorine purchased from such suppliers and delivered to the
▇▇▇▇▇▇▇ Plant; and
(b) The cost of the Chlorine content of EDC acquired by Geon for the
production of VCM at the ▇▇▇▇▇▇▇ Plant during such monthly period
from one or more toll converters to which Geon has supplied all
the required Ethylene. The cost of such Chlorine content shall be
equal to Geon's total delivered cost of such EDC, less the actual
cost of Ethylene delivered to such converter or converters for
the period of delivery of EDC and less the actual conversion fee
paid by Geon to such toll converter or converters.
2. There shall be excluded from the computation of such weighted average
cost (a) Chlorine purchased or otherwise acquired by Geon from a joint
venture or other joint enterprise to which Geon or a subsidiary of
Geon is a party, and Chlorine purchased or acquired by Geon from a
party (or from an affiliate of such party) to such joint venture or
other joint enterprise; (b) the quantities and costs of any Chlorine
derived from Chlorine-containing materials, such as, for example, by a
catoxid process or from hydrochloric acid; (c) the quantities and
costs of any Chlorine purchased other than pursuant to a contract
having an initial term of at least twelve (12) months; (d) Chlorine
purchased by third parties other than Geon or BFG and delivered to the
▇▇▇▇▇▇▇ Plant for toll conversion into EDC or VCM, and Chlorine
purchased by Geon from such third party or an affiliate thereof for
such toil conversion; and (e) Chlorine delivered pursuant to this
Agreement.
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3. Rebates and discounts which are accrued but not earned, and which if
earned would be included in such weighted average cost. may be used to
compute an initial weighted average cost. When such accrued rebates or
discounts are earned, or in the alternative if they are not earned,
appropriate adjustments will be made in order to determine the actual
weighted average cost of Chlorine for the relevant period. Any monies
so determined to be owing by Geon to BFG or by BFG to Geon shall be
paid or credited promptly.
4. The parties acknowledge that from time to time Geon's weighted average
cost of Chlorine may be a negative monetary number. if Geon's weighted
average cost for Chlorine for any month is less than zero, then such
negative value and the quantities of Chlorine to which such negative
value is applicable will be banked and applied against subsequent
positive values in the computation of Geon's weighted average cost of
Chlorine. In the event that the Chlorine portion of this Agreement is
terminated, any negative values for Chlorine which then exist may be
added to and used as banked ethylene credit pursuant to Section 7.A.4
of this Agreement. Any negative values which may be banked at the time
of complete termination of this Agreement will not be paid in cash to
Geon or otherwise credited to Geon or applied against other monies
that may then be owing by Geon to BFG.
C. VCM. The price to be paid by Geon to BFG for VCM purchased by Geon
pursuant to this Agreement shall be determined on a monthly basis and shall be
based on the VCM Market Price." For purposes of this Agreement the term VCM
Market Price" shall mean the prevailing market price to large buyers for
comparable domestic arm's length sales of VCM made by sellers unrelated to VCM
purchasers, F.O.B. Gulf Coast, net of any rebates, discounts, credit memos or
special allowances.
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For VCM delivered from the inception of this Agreement through February
28, 1994, the parties hereto shall in good faith mutually determine the VCM
Market Price on a monthly basis from publicly available information. In the
event that they are not able to mutually agree on such price, the VCM Market
Price shall be determined according to the arbitration provisions of this
Agreement.
After February 28, 1994 to the termination of this Agreement, the term
"VCM Market Price" shall be the same price that is referred to in Section 4.3 of
the Conversion Agreement as the "Market Price." BFG will inform Geon of the
substance of BFG's decisions and negotiations with Westlake with respect to the
determination of such Market Price, including any discussions and negotiations
with respect to any adjustments to such Market Price. Geon shall have the right
to participate with BFG in discussions and negotiations with Westlake regarding
VCM prices for transactions between BFG and Westlake pursuant to the Conversion
Agreement. A determination of the price pursuant to Section 4.3 of the
Conversion Agreement will be determinative of the VCM Market Price pursuant to
this Agreement.
In the event of a dispute between BFG and Geon with respect to VCM
pricing, BFG shall invoice Geon at the prices applicable for the month prior to
the month in which such dispute arose and Geon shall pay such amount. When such
dispute is resolved (whether through agreement between the parties or through
arbitration under Article 14 hereof), an appropriate adjustment will be made,
with interest accruing on the underpaid or overpaid amount from the date that
payment of such amount would have been due hereunder until the date that the
adjustment payment is received. Such interest shall accrue at the prime rate of
interest established from time to time during such period by Citibank, N.A., and
shall be paid to BFG or Geon, as the case may be, along with the adjustment
amount, as soon as possible following resolution of the dispute.
D. EDC. The purchase price to be paid by Geon to BFG for EDC delivered to
Geon pursuant to this Agreement shall be determined on a monthly basis and shall
equal the sum of the following:
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1. A price for the Ethylene component of such EDC which is produced by
BFG at ▇▇▇▇▇▇▇ City, which price shall be determined pursuant to
Article 7.A of this Agreement; and
2. A price for the Chlorine component of such EDC which is produced by
BFG at ▇▇▇▇▇▇▇ City, which price shall be determined pursuant to
Article 7.B of this Agreement; and
3. The delivered price for the purchased quantity of Chlorine which is
required for such EDC production, plus an appropriate fee for
purchasing services; provided, however, that on reasonable notice,
Geon may undertake to supply on a timely basis such purchased Chlorine
in such quantities as are required by BFG, and to the extent that Geon
does deliver such purchased Chlorine, no cost therefor shall be
included in the price to be paid to BFG; and
4. An amount which will enable BFG to recover the fixed and variable
costs of any additional Chlorine off-loading, storage and handling
facilities that may be required for purchased Chlorine, plus a
reasonable return on such costs; and
5. An amount equal to a toll conversion fee which is customary for toll
conversion of Ethylene and/or Chlorine into EDC and which will enable
BFG to recover the fixed and variable costs of its EDC unit and a
reasonable return on such costs.
ARTICLE 8
---------
TERMS OF PAYMENT
----------------
Within ten days following the close of each month, Geon shall provide BFG
with such information as may be necessary for BFG to calculate the purchase
price for the
- 16 -
19
Products delivered to Geon pursuant to this Agreement during the immediately
preceding month. Between the fifth and fifteenth day of each month, BFG shall
send Geon an invoice for such Products delivered in the immediately preceding
month. Such invoice shall specify the total price due for each such Product.
Geon shall make payment, by wire transfer to an account at a bank designated by
BFG, no later than thirty days after the date of the invoice. BFG shall have the
right to charge and ▇▇▇▇ ▇▇▇▇ a finance charge on all overdue invoices at the
rate of 1.5% per month after the date such payments become due.
ARTICLE 9
---------
WARRANTIES, CLAIMS AND LIMITATIONS
----------------------------------
A. BFG warrants that, at the time of delivery, the Products sold to Geon
and purchased by Geon hereunder shall meet the specifications for such Products
set forth in Exhibit 1. BFG MAKES NO OTHER WARRANTY AND SPECIFICALLY DISCLAIMS
ANY WARRANTY OF PRODUCT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
NONE SHALL BE IMPLIED. All WARRANTIES, EXPRESS OR IMPLIED, EXCEPT THE WARRANTY
EXPRESSLY STATED ABOVE, ARE HEREBY EXCLUDED.
B. Geon warrants that, at the time of delivery, any VCM delivered
pursuant to Article 4 hereof shall meet the specifications set forth in Exhibit
1. GEON MAKES NO OTHER WARRANTY AND SPECIFICAllY DISCLAIMS ANY WARRANTY OF
PRODUCT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND NONE SHALL BE
IMPLIED. All WARRANTIES, EXPRESS OR IMPLIED, EXCEPT THE WARRANTY EXPRESSLY
STATED ABOVE, ARE HEREBY EXCLUDED.
C. The receiving party assumes all risk, responsibility, and liability
for loss, damage, or injury to persons or property of the receiving party or
others, arising out of the possession, handling, storage, transportation, or
use, either singly or in combination with other substances, of (i) any Ethylene
or Chlorine upon delivery to Geon at the ▇▇▇▇▇▇▇
- 17 -
20
Plant and (ii) any VCM or EDC sold or exchanged hereunder upon delivery at the
▇▇▇▇▇▇▇ City Plant (in the case of VCM or EDC received by Geon) and at the
▇▇▇▇▇▇▇ Plant (in the case of VCM received by BFG or its designee pursuant to
Article 4).
D. No claim as to the quality of any Product delivered hereunder or for
shortage shall be greater m amount than the purchase price hereunder of the
Product delivered plus return delivery costs m respect of which the claim is
made. Failure by the receiving party to give notice of claim to the delivering
party within forty-five (45) days from the date of actual receipt of the Product
shall constitute a waiver by the receiving party of all claims for quality or
shortage arising as a result of such delivery. Each party hereto shall be
entitled to all remedies at law or in equity for nonperformance or breach of
this Agreement by the other party, unless waived as provided in the foregoing
sentence or limited by the following sentences. THE RECEIVING PARTY'S SOLE AND
EXCLUSIVE REMEDY IN THE EVENT THAT IT RECEIVES PRODUCT WHICH DOES NOT MEET THE
SPECIFICATIONS FOR SUCH PRODUCT SET FORTh IN EXHIBIT 1 SHAll BE TO RETURN FOR
CREDIT THE QUANTITY OF PRODUCT NOT IN CONFORMANCE WITH SUCH SPECIFICATIONS, AT
THE PROVIDING PARTY'S COST AND EXPENSE, AND RECEIVE A PROMPT REPLACEMENT OF SUCH
NON-CONFORMING PRODUCT FROM THE PROVIDING PARTY. IN NO EVENT SHAll EITHER PARTY
BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE
DAMAGES, OR 1-055 OF PROFITS.
ARTICLE 10
----------
FORCE MAJEURE
-------------
A. DEFINITION AND EFFECT Delay in performance or nonperformance by either
party shall be excused to the extent its ability to perform is prevented by an
event of force majeure affecting either party hereto or Westlake. An event of
force majeure is an event including, but not limited to, a breakdown of
pipeline, machinery or equipment, fire, flood, drought, sabotage, shipwreck,
embargo, strike, explosion, labor trouble, accident, riot, war,
- 18 -
21
compliance with a change in law after the date hereof (including, without
limitation, a change in law relating to raw materials, Product allocation,
pollution control, occupational health and safety, or environmental matters),
acts of God or the public enemy, and delays or failures in obtaining raw
materials, supplies, equipment, or transportation, or any similar or dissimilar
event beyond the reasonable control of the party so affected. In no event shall
economic hardship be considered an event of force majeure. Force majeure shall
not be deemed to have occurred with respect to any party which falls to use
reasonable diligence to remedy the situation, if reasonably capable of being
remedied by that party. The requirement that an event of force majeure be
remedied with all reasonable dispatch shall not require settlement of strikes or
labor controversies by acceding to any demands of the opposing parties, without
regard to the reasonableness thereof. Force majeure includes the total or
partial failure of the usual means of transportation of Product and the
applicable quantities of Product to be delivered pursuant to Article 3 shall be
reduced accordingly. Force majeure shall in no way excuse Geon from mating
payment when due for any Products delivered hereunder.
B. NOTICE OF FORCE MAJEURE. The party unable to perform due to an event
of force majeure shall give prompt written notice of such inability explaining
the date such event commenced and the nature, details, and expected duration
thereof. The party unable to perform due to an event of force majeure shall take
all reasonable steps to terminate or remove promptly the cause of such
inability, and full performance of this Agreement shall be resumed as soon as
practicable. The affected party shall advise the other from time to time as to
progress in remedying the force majeure situation and as to the time when the
affected party expects to resume its obligations and shall notify the other as
to the expiration of any such event as soon as the affected party knows the date
thereof.
ARTICLE 11
----------
FEES, TAXES AND GOVERNMENTAL CHARGES
------------------------------------
All fees, taxes, and other governmental charges, including, without
'imitation, Superfund excise taxes and future changes and additions arising from
amendments to
- 19 -
22
existing laws and regulations which are imposed on any of the Products or on the
transportation, delivery, sale, or use thereof shall be paid by the receiving
party. In the event that the providing party shall be required to pay any such
fee, tax' or governmental charge, or shall do so as a convenience to the
receiving party, and the receiving party shall reimburse the providing party
promptly for the amount of such fee, tax, or governmental charge. If the
providing party claims exemption from any such fee, tax, or governmental charge,
it shall furnish appropriate, completely executed exemption certificates in
accordance with the laws and regulations of the fee-charging or tax-levying
authority in effect at the time of sale or delivery. Should such exemption be
denied, the providing party will assume and pay all such fees, taxes, or
charges, together with all penalties and interest, but the receiving party shall
only be required to reimburse the providing party for the amount of such fees,
taxes, or charges and not any penalties or interest thereon.
ARTICLE 12
----------
ASSIGNMENTS
-----------
A. This Agreement and the rights and duties hereunder may only be
assigned with the prior written consent of the other party hereto, which consent
may be withheld for any reason. Any such assignment shall not release the
assignor of any of its obligations or liabilities hereunder unless and until
released in writing by the other party. Any assignment made or attempted in
violation of this Article 12 shall be void and of no effect. Notwithstanding any
of the foregoing to the contrary, BFG shall have the right to assign this
Agreement to a subsidiary of BFG without any consent from Geon. In such event,
the term "BFG" as used herein shall include both BFG and such subsidiary.
B. The terms of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and permitted assignees.
- 20 -
23
ARTICLE 13
----------
INDEMNIFICATION
---------------
A. BY GEON. To the maximum extent permitted by law and subject to the
limitations with respect to Product warranty claims set forth in Article 9
hereof, Geon shall indemnify, defend, and hold harmless BFG and its officers,
directors, employees, representatives, and agents (the "BFG Indemnified
Parties"), from and against any and all suits, actions, liabilities, legal
proceedings, claims, demands, losses, costs, and expenses of whatsoever kind or
character, including without limitation, reasonable attorneys' fees and
expenses, for injury or death of third parties (including, without limitation,
employees of Geon or BFG) or loss of or damage to property of ▇▇▇▇▇▇▇▇ or third
parties arising as a result of or in connection with (i) any material failure on
the part of Geon to perform its obligations under this Agreement, (ii) any
negligent act or omission or wilful misconduct by Geon or anyone acting on
Geon's behalf (other than a BFG Indemnified Party) in the performance of this
Agreement, or (iii) any violation of any law or regulation (including any
environmental law or regulation) with respect to the manufacture and/or delivery
of VCM for exchange delivery at the ▇▇▇▇▇▇▇ Plant under Article 4 hereof.
B. BY BFG. To the maximum extent permitted by law, and subject to the
limitations with respect to Product warranty claims set forth in Article 9, BFG
shall indemnity, defend, and hold harmless Geon and its officers, directors,
employees, agents, and representatives (the "Geon Indemnified Parties"), from
and against any and all suits, actions, liabilities, legal proceedings, claims,
demands, losses, costs, and expenses of whatsoever kind or character, including
without limitation, reasonable attorneys' fees and expenses, for injury to or
death of third parties (including, without limitation, employees of Geon or BFG)
or loss of or damage to property of Geon or third parties arising as a result of
or in connection with (i) any material failure on the part of BFG to perform its
obligations under this Agreement, (il) any negligent act or omission or willful
misconduct of BFG or anyone acting on BFG's behalf (other than Geon or a Geon
Indemnified Party) in the performance of this Agreement, or (ill) any violation
of any law or regulation (including any environmental law or regulation) with
respect to the manufacture and/or
- 21 -
24
delivery of Products hereunder (including deliveries of Ethylene and Chlorine by
Westlake at the ▇▇▇▇▇▇▇ Plant).
ARTICLE 14
----------
ARBITRATION/DISPUTE RESOLUTION
------------------------------
A. ARBITRATION GENERALLY. If there is a dispute arising under, out of or
in connection with the making, the performance or the execution of this
Agreement, then the dispute shall be submitted to the American Arbitration
Association in Cleveland, Ohio unless otherwise agreed by the parties, for
arbitration. Any such arbitration shall be conducted in accordance with the
principles set forth in this Article 14 and the rules of the American
Arbitration Association or such other principles as to which the parties may
then mutually agree.
B. DEMAND FOR ARBITRATION. Upon written demand of either party, the
parties shall meet and attempt to appoint a single arbitrator. If the parties
are unable to agree on a single arbitrator, or if one of the parties fails to
meet within ten (10) days of a written demand being forwarded, then either party
may apply to have the arbitrator appointed by the American Arbitration
Association.
C. QUALIFICATIONS. The arbitrator selected to act hereunder shall be
qualified by education or training to pass upon the particular question or
questions in dispute. No arbitrator shall be an officer, director, employee,
agent or consultant of either party or any of its respective affiliates.
D. DECISIONS FINAL. The decision of the arbitrator shall be in writing
and signed by the arbitrator and shall be final and binding upon the parties as
to any question or questions so submitted to arbitration and the parties shall
be bound by such decision and perform the terms and conditions thereof Any such
decision shall be enforceable as a final judgment in any court of competent
jurisdiction.
-22-
25
E. COMPENSATION OF ARBITRATOR. The compensation and expenses of the
arbitrator (unless determined by the arbitrator to be payable by the
non-prevailing party or in some other manner) shall be paid in equal proportions
by Geon and ▇▇▇▇▇▇▇▇. Further more, any out of pocket expenses incurred by
either party to obtain the appointment of an arbitrator pursuant to Paragraph
14.B hereof shall be shared equally by ▇▇▇▇▇▇▇▇ and Geon.
F. PERFORMANCE TO CONTINUE. All performance of the terms and provisions
of this Agreement required by either party under this Agreement shall continue
during arbitration proceedings.
G. AGREEMENT CONTROLLING. In all respects not provided for elsewhere in
this Article 14, the rules of the American Arbitration Association shall govern
any dispute hereunder submitted to arbitration. If there is a conflict between
the provisions of this Agreement and such rules, the provisions of this
Agreement shall prevail.
H. ARBITRATION WITH WESTLAKE. In the event that BFG enters into an
arbitration proceeding (or other non-judicial third party dispute resolution
proceeding) with Westlake pursuant to the terms of the Conversion Agreement, the
Ethylene Supply Agreement, or the Chlorine Supply Agreement, and such dispute
relates to (i) Ethylene, Chlorine, or VCM pricing, (il) Ethylene, Chlorine, or
VCM exchanges, or (iii) the quality or quantity of any Ethylene, Chlorine, or
VCM delivered to or by Geon under this Agreement, Geon shall have the right and
obligation to participate fully with BFG in such proceeding. BFG and Geon agree
to cooperate fully with each other to advance a strong common position versus
Westlake in any such proceeding. Unless otherwise agreed by BFG and Geon, Geon
shall pay one-half of BFG's share of any fees, costs, or expenses arising out of
or relating to such proceeding.
I. BFG/WESTLAKE DISPUTES. If there arises a dispute (not involving an
arbitration proceeding as described in Paragraph H above) between BFG and
Westlake under the terms or provisions of (a) the Amended and Restated Master
Conveyance
-23-
26
Agreement, dated as of March 1, 1990, by and between BFG, BFGI, and Westlake
(the "Master Conveyance Agreement"), or (b) any other Agreement between or among
BFG, BFGI, and Westlake contemplated by the Master Conveyance Agreement, and
such dispute affects the interests of Geon, Geon shall have the right and
obligation to participate fully with BFG in the resolution of such dispute. BFG
and Geon agree to cooperate fully with each other to advance a strong common
position versus Westlake in any such dispute. Unless otherwise agreed by BFG and
Geon, Geon shall pay one-half of BFG's share of any fees, costs, or expenses
arising out of or relating to such dispute. Notwithstanding the foregoing, the
parties agree, with respect to the current litigation by and among Westlake,
BFG, and Geon (styled WESTLAKE MONOMERS CORPORATION V. THE ▇.▇.▇▇▇▇▇▇▇▇ COMPANY
AND THE GEON COMPANY. INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BFG
INTERMEDIATES COMPANY INC., Case No. 93-012205, in the District Court ▇▇▇▇▇▇
County, Texas), which litigation relates to a Right of First Refusal Agreement
on the Ethylene and Chlorine Assets and the Plant Utilities, dated as of March
1, 1990, between BFGI and Westlake, Geon shall not be required to pay its share
of any fees, costs, or expenses arising out of or relating to such litigation
(BFG having separately agreed to indemnify Geon therefor); Geon shall, however,
be required to cooperate fully with BFG in the defense of such litigation, as
set forth above.
ARTICLE 15
----------
GENERAL PROVISIONS
------------------
A. Notices. Notices or other communications required or permitted by this
Agreement are to be given in writing and shall be deemed to have been
sufficiently given when deposited in the United States mall properly stamped,
when delivered in person, or when transmitted by telegram and addressed to the
respective parties as follows:
- 24 -
27
1. If to BFG:
The ▇.▇.▇▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Manager
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
The ▇.▇.▇▇▇▇▇▇▇▇ Company
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ City, Kentucky 42029
Attention: Plant Manager
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
The ▇.▇.▇▇▇▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
2. If to Geon:
The Geon Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President/General Manager
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Geon Company
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change any address to which a notice maybe sent at anytime by
giving written notice of the change to the other party.
-25-
28
B. FAIR LABOR STANDARDS ACT. Each party represents and warrants that all
Products delivered under this Agreement will have been produced in compliance
with the requirements of the Fair Labor Standards Act of 1938, as amended.
C. GOVERNING LAW. The construction of this Agreement and the rights and
obligations of the parties hereunder shall be governed by the laws of the State
of Kentucky, without regard to choice of law principles.
D. WAIVER. Waiver by either party of any breach or failure to enforce any
of the terms and conditions of this Agreement at any time shall not in any way
affect, limit, or waive the right of that party thereafter to enforce the
Agreement and compel strict compliance with every term and condition thereof.
E. PRODUCT WARNINGS., The parties each acknowledge that they have been
furnished with Material Safety Data Sheets for the Products to be sold or
exchanged hereunder, containing warnings and safety and health information
concerning the Products and/or the containers for such Products sold or
exchanged hereunder., The receiving party agrees to disseminate such information
so as to give warning of possible hazards to persons whom the receiving party
can reasonably foresee may be exposed to such hazards, including, but not
limited to, the receiving party's employees, agents, contractors, and
customers.
F. AMENDMENT. No conditions, understandings, or agreements purporting to
modify or vary the terms of this Agreement shall be binding unless hereafter
made in writing and signed by an authorized representative of each party. No
requirement stated herein that an item be in writing may be waived except by
means of a written instrument issued by the party making the waiver. The
acknowledgment or acceptance by a party of the purchase orders, shipping
instructions, or sales acknowledgment forms containing terms or conditions at
variance with or in addition to those set forth herein shall not in any event be
deemed to modify or vary the terms of this Agreement.
- 26 -
29
G. SEVERABILITY. If all or any part of any provision or provisions of
this Agreement or the application of this Agreement to any particular fact or
circumstance is illegal, invalid, or unenforceable by reason of any statute or
rule of law, the remaining provisions or parts of provisions of this Agreement
or the application of all or part of the particular provision or provisions to
the other facts or circumstances is or are not to be affected and is or are to
remain in full force and effect.
H. RIGHT TO AUDIT. BFG and Geon shall each have the right annually, upon
request, to have an independent auditing firm having a nationwide operation (but
not Ernst & Young) review the books, records, and other detailed supporting
information of Geon, or BFG (as the case may be), for purposes of determining
the correctness of the purchase prices for the Products hereunder. All such
audits shall be undertaken at reasonable times and in conformance with generally
accepted auditing standards. The information generated by such audit shall be
kept confidential by the parties and shall not be disclosed to third parties or
used by the party requesting the audit for any other purpose.
I. COMPLIANCE WITH LAWS. Each party shall comply fully with all
applicable governmental laws and regulations, including, without limitation, all
environmental and pollution control laws and regulations, in the performance of
its obligations under this Agreement.
J. FURTHER ASSURANCES. If either party reasonably determines or is
reasonably advised that any further instruments, actions, or things are
necessary or desirable to carry out the terms of this Agreement, the other party
shall execute and deliver all such instruments, perform all such actions, and
provide all such things reasonably necessary and proper to carry out the terms
of this Agreement.
K. DEFAULT. Except where failure to perform is occasioned by an event of
force majeure affecting BFG or Westlake, if BFG shall fail to perform any
obligation to be fulfilled by it pursuant to the terms hereof and such default
shall not have been remedied within sixty (60) days after receipt by BFG of
written notice from Geon specifying such
- 27 -
30
default, Geon may, at its option, cancel this Agreement forthwith by notice in
writing to BFG, and, subject to the other provisions of this Agreement, BFG
shall remain liable to Geon for all loss and damage sustained by reason of such
default. Except where failure to perform is occasioned by force majeure
affecting Geon, if Geon shall fall to perform any obligation to be fullfilled by
it pursuant to the terms hereof and such default shall not have been remedied
within fifteen (15) days after receipt by Geon of written notice from BFG
specifying such default, BFG may, at its option, cancel this Agreement forthwith
by notice in writing to Geon, and, subject to the other provisions of this
Agreement, Geon shall remain liable to BFG for all loss and damage sustained by
reason of such default.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date and year
first written above.
THE ▇.▇.▇▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: President
------------------------------------
THE GEON COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. Patient
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Patient
------------------------------------
Title: Chairman of the Board, President
and Chief Executive Officer
------------------------------------
- 28 -
31
EXHIBIT 1
---------
VCM Specification
-----------------
(Analysis PPM WT.)
Parameter Specification
--------- -------------
Purity% 99.96
Water 200.00
Acidity (HC1) 0.50
Caustic (NaOH) 0.30
Iron (Fe) 0.25
Nonvolatiles (NV) 50.00
Color Colorless
Appearance Clear
Suspended Matter Free
Methyl Chloride 150.00
Acetylene 0.20
Low Boiling Hydrocarbons 7.00
Ethylene --
Propylene --
Unsaturated C4's 30.00
Mono-Vinyl Acetylene (MVA) --
Butadiene (BD) 26.00
Butene-1 --
Butene-2 --
High Boiling Point Chlorohydrocarbons 30.00
EDC --
Dichloro Compound --
Trichlorethane 0.60
Total Unsaturates --
Acetaldehyde --
Hydroquinone (HQ) --
02 in Vapor Space 200.00
Before Loading
(ppm mole)
32
EXHIBIT 1
---------
ETHYLENE SPECIFICATION
----------------------
A. Higher Purity Stream
--------------------
Normal Range
------ -----
Purity, mole % 99.6 98.0 to 99.9
Methane, mole ppm 200 100 to 300
Acetylene, mole ppm 40 40 to 3000
Ethane, mole ppm 3000 1000 to 10000
B. Lower Purity Stream consisting of a combination of the
------------------------------------------------------
following:
----------
Normal Range
------ -----
1. ▇.▇.Recovery;
Rate - 0 to 10,000 lbs/hr
Purity, mole % 88.0 86.0 to 90.0
Methane, mole % 7.0 5.0 to 9.0
Ethane, mole % 5.0 4.0 to 6.0
Acetylene, mole ppm 100 100 to 1000.0
C4's and higher, mole ppm 1000 1000 max.
2. Secondary Demethanizer Overhead;
Rate - 0 to 8,000 lbs/hr
Purity, mole % 74.5 73.0 to 76.0
Hydrogen, mole % 0.25 0.01 to 0.5
Methane, mole % 23.0 22.0 to 24.0
Acetylene, mole ppm 40 40 to 1000
Ethane, mole % 2.25 2.0 to 2.5
3. Higher Purity Stream;
Rate - Balance
33
EXHIBIT 1
CHLORINE SPECIFICATION
Analysis
--------
Cell Gas Vapor Chlorine
-----------------------
Chlorine 88.0 to 92.0 Wt. %
Inerts (Oxygen, Nitrogen, Carbon
Dioxide, Hydrogen) ** 8.0 to 12.0 Wt. %
Water 50 ppm Max. Wt. %
Chlorinated Organics* 100 Max. Wt. %
Non-Volatile Residue 40 Max. Wt. %
Bromine 100 Max. Wt. %
Carbon Tetrachloride 75 Max. Wt. %
Liquid Chlorine
---------------
Chlorine 99.5 Min. Wt. %
Oxygen, Nitrogen, Carbon Dioxide
and Hydrogen .5 Max. Wt. %
Water 50 Max. Wt. ppm
Chlorinated Organics 100 Max. Wt. ppm
Non-Volatile Residue 40 Max. Wt. ppm
Bromine 100 Max. Wt. ppm
Carbon Tetrachloride 75 Max. Wt. ppm
Anhydrous HCI PPM***
------------- ------
Component
---------
HCI Minimum 99.8%
Acetylene 50
Ethylene 100
Methane 100
VCM 200
Propylene 50
Methyl Chloride trace
Butadiene trace
Hydrogen (1,000)
Total C1-Hydrocarbons 10
Oxygenated Compounds 20
Solvents (CC14, C2HC13, etc.) 10
Chlorine (100)
Total Fluoriode (as HF) (10)
Bromine (30)
Iodine (30)
Sulfur (as S02) (20)
Water (50)
Arsenic (1)
Total Silicon (as Si) (2)
Sulfur (as S02) (2)
Oil free
Heavies (50)
NOx (5)
* Other than Carbon Tetrachloride
** During Cell Room start-up, inerts will exceed this range for
up to 12 hours. During liquification at BFG's ▇▇▇▇▇▇▇ City,
Ky. chlorine plant, inerts will exceed these levels in
accordance with historical practice.
*** PPM: volume or (weight)
34
EXHIBIT 1
ETHYLENE DICHLORIDE SPECIFICATION
(BFG Code No. H-19)
Property Specification
-------- -------------
Purity, percent 99.9 min.
Total Chlorinated Hydrocarbon, ppm 200 max.
(low boiling other than EDC)
Ethylene Chloride, ppm 10 max.
Total Chlorinated Hydrocarbon, ppm 200 max.
(high boiling)
1,1,2 Trichloroethane, ppm 100 max.
Total Oxygenated Compounds, ppm 50 max.
C3 and higher, ppm 50 max.
Color (APHA) 10 max.
Acidity, as HC1, ppm 5 max.
Alkalinity, as NaOH, ppm 2 max.
Water, ppm 20 max. (1)
Free Chlorine None
Non-volatile Residue 50 max.
Total Iron (soluble), ppm 0.5 max.
(1) This specification applicable to product contained and tested
at the delivery point to Geon.
