Contract No. 19032
CONTRACT FOR SALE AND
PURCHASE OF LIQUID HELIUM
between
XXXXX HELIUM COMPANY, LLC
and
AIR PRODUCTS HELIUM, INC.
amended and restated as of
1 January 1999
TABLE OF CONTENTS
ARTICLE Page
I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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II FACILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
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III TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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IV SALE AND PURCHASE OF HELIUM. . . . . . . . . . . . . . . .. . . . . . 8
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V PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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VI TOLLING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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VII QUALITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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VIII MEASUREMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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IX PREPARATION AND DELIVERY. . . . . . . . . . . . . . . . .. . . . . . 17
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X BILLING AND PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . 19
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XI FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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XII REGULATION: WAIVER OF DEFAULT. . . . . . . . . . . . . . . . . . . . 21
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XIII WARRANTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
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XIV GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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XV NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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XVI GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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CONTRACT FOR SALE AND PURCHASE OF LIQUID HELIUM
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AS AMENDED AND RESTATED
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THIS AGREEMENT is made and entered into, as amended and restated, as of the
1st day of January 1999, by and between XXXXX HELIUM COMPANY, LLC, a Colorado
limited liability company ("KHC" or "Seller") and AIR PRODUCTS HELIUM, INC., a
Delaware corporation, ("Buyer").
W I T N E S S E T H:
--------------------
WHEREAS, Seller has access to sources of natural gas containing Helium, and
is able to supply Liquid Helium from Seller's purification and liquefaction
facility located in Cimarron County, Oklahoma;
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, the Liquid Helium production from Seller's facility; and
WHEREAS, Buyer has Crude Helium available for Tolling in Seller's Facility
on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, Seller and Buyer mutually covenant and agree as follows:
ARTICLE I
DEFINITIONS
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Unless the context otherwise requires, and in addition to the terms defined
above, the following terms shall have the following respective meanings, all
definitions being equally applicable to both the singular and plural forms.
"Additional Volumes" means any volumes of Helium owned by Seller, which are
produced or which Seller expects to produce at a facility other than Seller's
Facility, and which are not subject to Seller's obligations to third parties
predating this Agreement.
"Adjustment Period" means: (a) for purposes of the Tier I volume price
adjustment provided for in Section 5.2, the 12 Month period commencing 1 October
1994 and ending 30 September 1995 and each 12 Month period thereafter; and (b)
for purposes of the Tier II volume price adjustment provided for in Section 5.2,
the 12 Month period commencing 1 October 1995 and ending 30 September 1996 and
each 12 Month period thereafter.
"Affiliate" means, with respect to a person, any other person who is
directly or indirectly, controlling, controlled by, or under common control
with, the person.
"Article" means an Article of this Agreement, unless otherwise noted.
"Base Period" means: (a) for purposes of the Tier I volume price adjustment
2
provided for in Section 5.2, Buyer's 1994 fiscal year, 1 October 1993 - 30
September 1994; and (b) for purposes of the Tier II volume price adjustment
provided for in Section 5.2, Buyer's 1995 fiscal year, 1 October 1994 - 30
September 1995.
"Buyer" means Air Products Helium, Inc., a Delaware corporation, and, for
purposes of Section 5.2, its Affiliates.
"Commencement Date" means the first day of the month in which the first
delivery of Liquid Helium to Buyer under this Agreement occurs, namely, 1
January 1999.
"Contract Year" means each period of 12 consecutive Months beginning on the
1 January after the Commencement Date and each succeeding 1 January.
"Crude Helium" means the gaseous product extracted from natural gas, which
product is comprised of Helium together with other constituents of natural gas
and which is acceptable for storage in the BLM System.
"Force Majeure" means act of god, strike, lockout or other industrial
disturbance, act of public enemy, war, blockade, insurrection, riot, epidemic,
landslide, lightning, earthquake, fire, storm, flood, washout, arrest and
restraint of rulers and peoples, civil disturbance, explosion, breakage or
accident to machinery or equipment, or lines of pipe, freezing of xxxxx or lines
of pipe, partial or entire failure of gas xxxxx or pressure
3
protection devices, machinery or equipment breakdown, scheduled and unscheduled
maintenance of equipment, inability to obtain materials, supplies, or permits,
and any laws, orders, rules, regulations, acts or restraints of any government
or governmental body of authority whether civil or military, and any other
cause, whether similar or dissimilar to any of the causes or categories of
causes described above, not within the reasonable control of the Party claiming
suspension and which by the exercise of due diligence such Party is unable to
avoid.
"Helium" is an element with unique properties such as the second lightest,
next to hydrogen, inert to chemical reaction, high thermal conductivity and the
lowest boiling point, 4.2(degree)K, of any known element.
"Liquid Helium" means Helium in the liquid state.
"MCF" means one thousand SCF, and "MMCF" means one million SCF.
"Merchant Helium" means all sales of refined Helium sold by Buyer to
unrelated third parties on other than a wholesale or swap basis.
"Month" means a period of time beginning at 8:00 a.m. local time at
Seller's Facility on the first day of a calendar Month an ending at 8:00 a.m.
local time at Seller's Facility on the first day of the next succeeding calendar
Month.
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"Notice" means a written notice, and "Notify" means the giving of a Notice,
in accordance with Section 15.1.
"Party" or "Parties" means KHC and/or Air Products Helium, Inc., and their
successors or assigns.
"Required Volumes" has the meaning identified in Section 4.1.
"Sales Value" means the proceeds of the Total Volume sold for delivery
during the Base Period or the applicable Adjustment Period in the United States
of America. Sales Value shall not include amounts that Buyer charges customers
for equipment, freight and service charges.
"Sales Volumes" means all volumes of Helium owned by Seller which are
produced at Seller's Facility (including any expansion of Seller's Facility).
"SCF" means the volume of Helium contained in one cubic foot of space at a
temperature of 70(degree) F and at an absolute pressure of 14.7 pounds per
square inch. As used with reference to Helium, SCF means the quantity of liquid
which in the vapor phase at the above conditions of temperature and pressure
will occupy one cubic foot of space. One pound of Helium is equivalent to 96.71
SCF.
"Section" means a Section of this Agreement, unless otherwise noted.
5
"Seller" means KHC, its successors and assigns and, for purposes of Section
4.2 only, CIG Resources Company, an Affiliate of KHC.
"Seller's Facility" means Seller's Helium purification and liquefaction
plant located in Cimarron County, Oklahoma.
"Supply Period" means the period beginning on the Commencement Date, and
continuing for a period of 252 consecutive Months after the Commencement Date,
unless extended thereafter by mutual consent.
"Taxes" means any tax, assessment, excise or duty applicable to the
transactions contemplated hereby.
"Toll Price" means the price per MCF for Tolling Tolled Volumes, as set
forth in Article VI.
"Tolled Volumes" means volumes of Crude Helium Buyer Tolls pursuant to
Article VI.
"Tolling" or "Tolls(s)" means the refining of Buyer's Crude Helium at
Seller's Facility for the Toll Price.
"Total Volume" means the volume of Merchant Helium sold by Buyer and its
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Affiliates in the United States of America in arms-length sales to unrelated
third parties expressed in MCF.
"Unit" means Helium tankers or containers.
"Unit Price" means the price per MCF (per volume tier) sold and purchased
hereunder, as set forth in Article V.
"BLM" means the United States Bureau of Land Management.
"BLM System" means the BLM Storage and Pipeline System.
ARTICLE II
FACILITY
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2.1. Installed Facility. Seller has constructed and placed in operation
Seller's Facility.
2.2. Seller's Obligation to Obtain Contracts. It is recognized by the
Parties that Seller's ability to supply Helium to Buyer is dependent upon Seller
obtaining contracts with third parties to supply Seller's Facility with natural
gas containing Helium. The Parties recognize, however, that Seller makes no
representation or warranty of an ability to obtain contracts to supply Seller's
Facility natural gas containing Helium.
2.3 Seller's Facility Capability. Seller's Facility has an installed
nominal
7
capacity of 170 MMCF of Liquid Helium per Contract Year. Actual capacity on a
daily operating basis is currently approximately 150 MMCF of Liquid Helium per
Contract Year. Seller agrees to refine, at Seller's facility, Additional Volumes
of Crude Helium produced at any other facility connected to the BLM System, in
lieu of requiring Buyer to provide Tolled Volumes pursuant to Section 6.1.
ARTICLE Ill
TERM
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3.1. Term. The term of this Agreement shall be from the execution hereof
until terminated in accordance with the other provisions of this Agreement.
3.2. Primary Term. Either Party may terminate this Agreement as of December
31, 2021, or as of any anniversary date thereafter by giving not less than 24
Months prior Notice to the other Party, which Notice shall be given in
accordance with Section 15.1, subject to any extensions pursuant to Section
11.2.
ARTICLE IV
SALE AND PURCHASE OF HELIUM
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4.1 Basic Obligation. During each Contract Year during the Supply Period
Buyer shall purchase, at the Unit Price, all of the Sales Volumes produced at
Seller's Facility ("Required Volumes").
4.1.1 If, in any Contract Year, Buyer fails to take all of the Required
Volumes, Buyer shall make a payment to Seller as determined by multiplying the
difference
8
between: (a) the Sales Volumes actually taken by Buyer; and (b) the Required
Volumes, times the Unit Price. Such payment shall be made within 30 days of the
end of the applicable Contract Year.
4.1.2 Buyer shall use reasonable good faith efforts to take Helium
hereunder in relatively equal monthly quantities.
4.2 Additional Volumes. Seller shall Notify Buyer and solicit from Buyer an
offer of purchase of any Additional Volumes other than (a) those Additional
Volumes of Crude Helium processed at Seller's Facility and (b) those Additional
Volumes Seller chooses to store. If Buyer Notifies Seller that it elects not to
purchase such Additional Volumes, or does not respond within 90 days thereafter,
Seller may offer such Additional Volumes to third parties. If Buyer offers to
purchase such Additional Volumes, Seller may during the next 90 days solicit
offers of purchase from third parties, but Seller may not sell such Additional
Volumes to a third party on terms more favorable to the third party than those
offered by Buyer. If Seller has not agreed to sell such Additional Volumes to a
third party within this period, or elected to store or not produce such
Additional Volumes, Buyer's offer shall be deemed accepted. Buyer shall have the
rights in this Section 4.2 for such Additional Volumes only where such rights do
not conflict with Seller's obligations predating this Agreement or with Seller's
ability to enter into new projects (including with Nitrotec Corporation).
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ARTICLE V
PRICE
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5.1 Unit Price. The Unit Price shall be F.O.B. the Seller's facility and
shall be:
Volume Tier Price
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Up to 70 MMCF (Tier I volume) [****]
Above 70 MMCF (Tier II volume) [****]
If in any Contract Year the Required Volume is greater or less than 150
MMCF, then the billed amount for Tier II volumes for such Contract Year shall be
adjusted as follows:
A. Sales Volumes > 70,000 MCF < 115,000,001 SCF shall be valued at
[****]
B. Sales Volumes> 115,000 MCF up to the total Required Volume shall be
valued at [****]
The sum of A + B minus the Tier II billed value for that Contract Year shall be
invoiced or credited to Buyer by Seller as an adjustment in the invoice for
January of the following Contract Year.
5.2 Price Adjustment. The Unit Price shall be subject to annual adjustment
with respect to all Contract Years commencing on or after 1 January 1999,
determined by application of the following formula:
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PN = $ [applicable Volume Tier price] x [XAP/XBP]
Where: PN = the adjusted Unit Price for the particular Contract Year, in
$/MCF, using the method set forth in this Section 5.2.
Price changes for Buyer shall be determined by calculating the average
Sales Value ("XAP") of Buyer, in $/MCF, for Liquid Helium sold by Buyer during
the Adjustment Period immediately prior to the commencement of the Contract Year
for which the adjusted Unit Price is being determined, which shall be calculated
in accordance with the following formula:
XAP = SAP/VAP
Where: SAP = Sales Value from sales of Merchant Helium by Buyer during
the Adjustment Period.
VAP = Total Volume in MCF of Merchant Helium sold by Buyer
corresponding to Buyer's Sales Value during the Adjustment
Period.
The initial calculation for that portion of any adjustment attributable to
a change in average sales price shall equal the net change, from fiscal 1994 and
1995, in Buyer's sales revenues and volumes for the Adjustment Period. Annual
price adjustments shall be effective 1 January of each subsequent Contract Year.
The average sales price of Buyer, in $/MCF, for Helium sold by buyer during
the
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Base Period ("XBP") shall be calculated in accordance with the following
formula:
XBP = SBP/VBP
Where: SBP = Sales Value from sales of Merchant Helium by Buyer during
the Base Period.
VBP = Total volume in MCF of Merchant Helium sold by Buyer
corresponding to Buyer's Sales Value during the Base Period.
5.3 Unit Price Floor. Buyer and Seller agree that the Unit Price for Liquid
Helium delivered hereunder shall be not lower than [$45.00/MCF] for the first 70
MMCF (Tier I volume) of Liquid Helium sold to Buyer during any Contract Year,
and not lower than [$38.00/MCF] for all Liquid Helium sold to Buyer above 70
MMCF (Tier II volume) in any Contract Year.
5.4 Books and Records. Buyer shall maintain true and complete books of
account, containing an accurate record of all information necessary for the
proper computation of the Unit Price for Helium under the procedure described
above in Section 5.2. Buyer shall transmit to Seller within three Months after
the end of the Base Period or applicable Adjustment Period, as the case may be,
the weighted average selling price for the Base Period or Adjustment Period
required in the application of such formulae. For a period of not more than two
years from the transmittal of said weighted average price data, Seller shall
have the right at all reasonable times to inspect such books to such extent as
may be reasonably necessary to verify such data. Such inspection shall be
subject to such restriction on disclosure as may be reasonably
12
necessary to protect the confidentiality of proprietary information of Buyer.
Buyer is not required to preserve said books for longer than two years from the
transmittal of said price data to which such books relate.
5.5 Taxes. Seller shall be responsible for Taxes imposed or assessed prior
to the point of delivery into Buyer's Units. Buyer shall be responsible for
Taxes imposed or assessed after the point of delivery into Buyer's Units,
provided, however, Taxes levied or imposed by any future law or any governmental
authority in connection with the transactions contemplated hereby (excluding,
however, any tax upon the net income of Seller imposed by a governmental
authority of the United States of America, and further excluding any
reimbursement in whole or in part for any liability which Seller may have to any
third party, including without limitation any oil and gas lessor, lessee,
mineral owner or pipeline company, with respect to any sums attributable to the
Helium sold by Seller to Buyer hereunder) shall, if paid by Seller as the result
of performance of the Agreement, be added to the price and paid by Buyer. Any
further real or personal property Taxes shall only be payable by Seller if
solely attributable to the Helium purification and liquefaction portions of the
Seller's Facility. Prior to the payment of any such Taxes, Buyer shall be
afforded the opportunity to challenge any such Taxes at its election and
expense.
5.6 Price Renegotiation. For Contract Years commencing 1 January 2009 and 1
January 2016, the then-current Unit Price, the Unit Price floor mentioned in
Section 5.3, Toll Price and adjustment terms for Helium and Tolling under this
13
Agreement, shall be subject to renegotiation upon Notice by either Party to the
other. Such Notice shall be given not later than the 1 October 2007 and 1
October 2014, respectively. If the Parties have been unable to reach agreement
prior to the 1 October 2008 or 1 October 2015, as the case may be, after having
conducted good-faith negotiations with respect to the modification of the
then-current Unit Price, the Unit Price floor mentioned in Section 5.3, Toll
Price and escalation terms, then either Party shall have the right to terminate
this Agreement as of December 31, 2008, and December 31, 2015, respectively.
ARTICLE VI
TOLLING
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6.1 Tolling Request By Seller. If requested by Seller, Buyer will provide
Crude Helium via the BLM System to be Tolled by Seller through Seller's Facility
up to the quantity of Crude Helium sufficient to allow Seller's Facility to
produce 170 MMCF per year of Liquid Helium during the fifth through tenth
Contract Years of the Supply Period (not to exceed 500 MMCF of Tolled Volumes
during the fifth through tenth Contract Years). If, in any Contract Year, Buyer
fails to provide Tolled Volumes which have been requested hereunder, Buyer shall
make a payment to Seller as determined by multiplying the amount of the Tolled
Volumes requested but not provided, and the Toll Price. Such payment shall be
made within 30 days of the end of that Contract Year. 6.2 Tolling Request by
Buyer. Seller will Toll Crude Helium at Buyer's request
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if (a) capacity is available at Seller's Facility, and (b) Buyer tenders a
quantity of Crude Helium sufficient to allow Seller's Facility to produce up to
170 MMCF of Liquid Helium per Contract Year. Seller may shut down Seller's
Facility at the end of any Contract Year and terminate this Agreement if Buyer
has failed to give the Notice required under Section 6.3 during such Contract
Year.
6.3 Notices of Tolling Requirement. During the first six Contract Years,
Seller will provide Buyer, for each Contract Year no later than 15 November of
the previous Contract Year, a Notice containing a forecast of Seller's Tolling
capacity available and whether such Tolling will be required during the next
Contract Year. Starting in the sixth Contract Year, Buyer will provide Seller,
for each contract Year no later than 15 November of the previous Contract Year,
a Notice containing a forecast of Buyer's Tolling requirements for the
subsequent Contract Year. Seller shall be prepared to Toll such forecasted
volume, but Seller's obligation to Toll shall be limited to the Tolling capacity
available during such Contract Year. Seller's Tolling capacity shall be limited
to the extent that Seller has available Crude Helium from other sources for
processing, which shall take precedence to Tolling Buyer's Crude Helium.
6.4 Toll Price. Buyer shall pay [****] per MCF ("Toll Price") for the
Liquid Helium produced by Tolling and delivered into Buyer's Units. Buyer shall
be responsible for any BLM charges associated with Tolled Volumes. The Toll
Price is subject to adjustment in accordance with Section 6.6.
15
6.5 Delivery of Tolling Quantities. Buyer will provide Seller via the BLM
system 1.02 units of Crude Helium for each unit of Liquid Helium to be delivered
into Buyer's containers at Seller's Facility on a schedule mutually agreed to by
Buyer and Seller.
6.6 Toll Price Adjustment. The Toll Price shall be adjusted 1 January 1999
and on each 1 January thereafter by the same percentage change in Seller's
Liquid Helium price for Tier I volumes as calculated in Section 5.2. Buyer and
Seller agree that the Toll Price shall not be lower than [****] during any
Contract Year.
ARTICLE VII
QUALITY
7.1 Purity. All Liquid Helium delivered hereunder shall have a purity of
not less than 99.999% Helium by volume in accordance with Compressed Gas
Association Helium Specification G-9.1 Grade P-1992.
7.2 Crude Helium Specification. All quantities of Crude Helium delivered
hereunder shall conform to the specification set forth in the contracts between
the BLM and Buyer and/or Seller to store Crude Helium in the BLM System.
7.3 Samples. For quality control purposes, representative samples of Helium
after being vaporized shall be analyzed by Seller by gas chromatography, or
other mutually agreeable method, as required.
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ARTICLE VIII
MEASUREMENT
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8.1 Scales. Seller shall install, own, operate and maintain equipment,
scales and instruments required for the measurement of Liquid Helium delivered
hereunder. Seller shall weigh each Unit used for the transportation of Buyer's
Liquid Helium, with the Unit's liquid nitrogen reservoir completely filled,
immediately before and after filling and calculate the quantity, by weight, of
Liquid Helium delivered into each such Unit, converted to SCF of Helium. At the
time of weighing of the Unit prior to shipment, pressure within the Unit shall
not exceed 3 pounds per square inch gauge. Buyer shall have the right to witness
testing or calibration of Seller's measuring equipment, scales or instruments.
Buyer hall have the right at all reasonable times to inspect the
above-referenced records covering not more than 24 Months immediately preceding
each such inspection. Seller shall not be obligated to preserve such records for
more than two years.
8.2 Unit of Measurement. The unit of measurement for measuring Helium
hereunder shall be one SCF.
ARTICLE IX
PREPARATION AND DELIVERY
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9.1 Liquid Nitrogen. Seller shall fill with liquid nitrogen the shielding
reservoirs in Buyer's Units as required at Seller's Facility. Buyer shall pay
Seller $200 for the liquid nitrogen furnished to Buyer by Seller for use in the
preparation and filling of the
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shielding reservoir of each of Buyer's Units regardless of size.
9.2 Service Charges. Service charges for cool down and purging Buyer's
Units required by Seller at Seller's Facility shall be as follows:
9.2.1 The charge for Helium used to cool down buyer's Units to Liquid
Helium temperatures shall be a lump sum of [****] for those Units arriving at
Seller's Facility with an inside temperature of minus 315(degree)F or lower and
a lump sum of [****] for those Units arriving at Seller's Facility with an
inside temperature of minus 316(degree)F or above, but no cooldown charge will
be assessed for Units arriving at Seller's Facility with an inside temperature
of minus 423(degree)F or lower.
9.2.2 Buyer's Units arriving at Seller's Facility in a contaminated
condition will be assessed a charge of [****] to purge these Units when the
contamination is greater than 150 ppm.
9.3 Suitable Containers. Buyer assumes full responsibility for providing
Units suitable for filling by Seller. Buyer shall use reasonable efforts to
provide Units with minimum residual for filling at Seller's Facility. Seller
shall have the right to refuse to fill Buyer's Units if they are not in a
condition normally acceptable in the industry for filling with Liquid Helium.
Buyer shall provide a suitable Unit for filling at Seller's Facility at all
times during the Supply Period. Buyer and Seller will cooperate so that the
scheduling of Units for delivery of Liquid Helium is on a reasonably consistent
basis, and that the unavailability of such Units does not disrupt operations of
Seller's Facility.
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9.4 Delivery Point. The Liquid Helium and liquid nitrogen shall be
delivered to Buyer F.O.B. Buyer's Units at Seller's Facility.
ARTICLE X
BILLING AND PAYMENT
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10.1 Statement Seller shall render to Buyer bimonthly (i.e., twice a month)
a billing statement showing the quantity of Helium delivered, the applicable
Unit Piece, the applicable Toll Price (volumes of Liquid Helium produced by
Tolling to be clearly identified), the total amount due for Helium, the rate for
preparation of each Unit, the total amount due for preparation of Units during
the billing period, the total amount due for Unit service charges, and the total
amount due Seller for that shipment. Reconciliation of Tolled Volume balances
shall be on a monthly basis within 30 days of statement date.
10.2 Payment. Buyer shall, within 15 days after receipt of the billing
statement described in Section 10.1, pay to Seller the amount of money due
Seller for Helium, and service charges for the shipments covered by the
statement.
10.3 Claims. Notice of any claims based on an error in any billing
statement rendered or payment made shall be given to the Party against whom such
claim is made with 24 Months from the date of the relevant billing statement or
payment, and in the absence of such Notice each such billing statement and each
such payment shall be conclusively presumed to be correct.
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10.4 Books and Records. Seller shall maintain true and complete books of
account, containing an accurate record of all price and production information
necessary for the proper computation of the information required for each
billing statement in accordance with Section 10.1. Buyer shall have the right at
all reasonable times to inspect such records of Seller to such extent as may be
reasonably necessary to verify such information for a period of not more than
two years from the date of the applicable billing statement. Such inspection
shall be subject to such restriction on disclosure as may be reasonably
necessary to protect the confidentiality of proprietary information of Seller.
Seller is not required to preserve said books and records for longer than said
two year period.
ARTICLE XI
FORCE MAJEURE
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11.1 Relief From Performances. In the event of either Party being rendered
unable wholly or in part by Force Majeure to carry out any of its obligations
under this Agreement, other than to make payments of amounts due hereunder, upon
such Party giving Notice to the other Party, stating the full particulars of
such Force Majeure as soon as possible after the occurrence of the cause stated
in said Notice, performance of the obligations of the Party giving such Notice,
so far as they are affected by such Force Majeure, shall be suspended during the
continuance of any inability so caused by no longer period, and such inability
to perform shall, so far as possible, be remedied with all reasonable dispatch.
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11.2 Extension of Time. When Seller is unable by reason of Force Majeure to
supply any Helium which Seller is otherwise obligated to supply to Buyer
hereunder, then the supply Period will be extended as necessary to permit Seller
to supply such Helium to Buyer.
ARTICLE XII
REGULATION: WAIVER OF DEFAULT
-----------------------------
12.1 Regulations. This Agreement is subject to valid present or future,
laws, rules, regulations, and orders of duly constituted authorities having
jurisdiction or control.
12.2 No Waiver. No waiver by either Party of any one or more defaults by
the other in the performance of any provisions of this Agreement shall operate
or be construed as a waiver of any future default or defaults, whether of a like
or of a different character.
ARTICLE XIII
WARRANTY
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13.1 Seller's Warranties. Seller warrants that the Sales Volumes delivered
to Buyer shall conform to the specification set forth in Section 7.1, and that
at the time of delivery, Seller shall have good title and right to transfer the
same and that the same shall be delivered free of encumbrances.
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13.2 Buyer's Warranty. Buyer warrants that, as to the Tolled Volumes,
Buyer shall have good title and right to transfer the same for Tolling and that
the same shall be delivered free of encumbrances.
13.3 No Other Warranties. THE WARRANTIES SET FORTH IN SECTIONS 13.1 AND
13.2 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE XIV
GENERAL
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14.1 Headings. All headings appearing in this Agreement are for convenience
only and shall not be considered part of this Agreement for any purpose, or as
in any way interpreting, construing, varying, altering, or modifying this
Agreement or any of the terms and provisions thereof.
14.2 Complete Agreement. The terms of this Agreement express and constitute
the full agreement between the Parties with respect to the subject matter
thereof, and there are no warranties, covenants, stipulations, or conditions
existing apart from the terms of this Agreement.
14.3 Binding Nature. This Agreement shall be binding upon and inure to the
22
benefit of the Parties, their successors and assigns.
14.4 Assignment. This Agreement shall not be assignable by any Party
without the prior consent of the other Parties given in accordance with Section
15.1, which assignment shall not be unreasonably withheld
14.5 Prior Agreement. The Contract for Sale and Purchase of Liquid Helium
between Buyer and Seller dated 1 November, 1993, as amended, is terminated as of
1 January 1999. Provided however, Buyer and Seller remain obligated for
performance, payments and accounting adjustments attributable to the period
prior to 1 January 1999.
ARTICLE XV
NOTICES
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15.1 Manner of Giving Notice. All notices and other writings expressly
required to be given in accordance with this Section 15.1 shall be in writing
and shall be sent by registered or certified United States Mail (return receipt
requested), as follows:
SELLER:
Xxxxx Helium Company, LLC
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
BUYER:
Air Products Helium, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Secretary
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Notices and other writings given under this Section 15.1 shall be deemed given
effective the third business day following the date of deposit thereof in the
United States Mail or with a recognized overnight courier.
15.2 Other Communications. All communications given under this Agreement
other than those Notices governed by Section 15.1 shall be given in a manner
such that the communication is likely to be received in a timely manner by a
responsible representative of the receiving Party.
15.3 Change in Address. Either Party shall have the right at any time to
Notify the other in writing of a different address to which Notices are to be
sent under Section 15.1.
15.4 Statements and Xxxxxxxx. All statements and xxxxxxxx to be given under
this Agreement shall be in writing and shall be delivered or sent to the Parties
at the above- stated addresses by regular U.S. Mail, postage prepaid or as
otherwise agreed by the Parties.
15.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall have full force and effect and shall be
equally binding on the Parties.
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ARTICLE XVI
GOVERNING LAW
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This Agreement, both as to interpretation and performance, shall be
governed by the laws of the State of Colorado, without giving effect to its
conflict of laws provisions.
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this Agreement in duplicate copies, each an original
for all purposes, as of the date and year first above written.
XXXXX XXXXX COMPANY, LLC AIR PRODUCTS HELIUM, INC.
By: /s/ Xxxxxx X. Xxxxx By: [Signature Illegible ]
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Xxxxxx X. Xxxxx Name: ________________
Chair, Managers' Committee Title: __________________
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