FIRST AMENDMENT TO RESIN PURCHASE AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO RESIN PURCHASE AGREEMENT
THIS
FIRST AMENDMENT TO RESIN PURCHASE AGREEMENT (“First Amendment”) is made and
entered into as of the 17th
day of
August 2005, effective as of the 15th
day of
July 2005 (the “Effective Date”), by and between AOC,
LLC
(“Seller”) and INSITUFORM
TECHNOLOGIES, INC.
(“Buyer”).
Recitals
of Fact
Seller
and Buyer have entered into that certain Resin Purchase Agreement (the
“Agreement”), dated March 29, 2005, concerning the sale by Seller and the
purchase by Buyer of certain resins for use in Buyer’s manufacturing
process.
The
parties have agreed to modify the Agreement in certain respects, and the parties
desire to set forth such agreement in writing.
NOW,
THEREFORE, for good and valuable considerations, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereby agree as follows:
1.
As
of the
Effective Date, Section 2 of the Agreement is amended by adding the following
sentence to the end of Section 2.2:
Notwithstanding
the foregoing, Seller agrees to sell and deliver, and Buyer agrees to purchase
and accept, during each Contract Year of the term hereof, for internal
consumption and not for resale, one hundred percent (100%) of Products required
by Buyer and Third Party Designees to fulfill commercial Insituform product
installation work in [REDACTED] (each, a “Committed Location”).
2.
As
of the Effective Date, Section 6 of the Agreement is amended by adding the
following:
6.6 Freight
to Committed Locations.
Seller
and Buyer agree that the freight costs for the
shipment of Products required by Buyer and Third Party Designees to fulfill
commercial Insituform product installation work at the Committed Locations
shall
be calculated as follows:
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a.
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For
the period from July 15, 2005 through July 14, 2006, the freight
cost per
pound of Product to a Committed Location shall equal (A) the then
Current
Freight Cost (as hereinafter defined) per pound of Product to such
Committed Location using Traditional Routing (as hereinafter defined)
less (B)
twenty-five percent (25%) of the Freight Savings (as hereinafter
defined).
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b.
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For
the period from July 15, 2006 through July 14, 2007, the freight
cost per
pound of Product to a Committed Location shall equal (A) the then
Current
Freight Cost per pound of Product to such Committed Location using
Traditional Routing less (B)
fifty percent (50%) of the Freight
Savings.
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c.
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For
the period from July 15, 2007 through December 31, 2007, the freight
cost
per pound of Product to a Committed Location shall equal (A) the
then
Current Freight Cost per pound of Product to such Committed Location
using
Traditional Routing less (B)
seventy-five percent (75%) of the Freight
Savings.
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d.
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If
and in the event this Agreement remains in effect after December
31, 2007,
for the period from January 1, 2008 through July 14, 2008, the freight
cost per pound of Product to a Committed Location shall equal (A)
the then
Current Freight Cost per pound of Product to such Committed Location
using
Traditional Routing less (B)
seventy-five percent (75%) of the Freight Savings. For periods beginning
on or after July 15, 2008, the freight cost per pound of Product
to a
Committed Location shall equal the then Current Freight Cost per
pound of
Product from the Seller’s Collierville, Tennessee facility to a respective
Committed Location (or from such other Seller facility that may be
closer
to the Committed Location, whichever is less).
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For
purposes of this Section 6.6, Freight Savings shall mean and be equal to (A)
the
then Current Freight Cost per pound of Product to a Committed Location from
Seller’s facility using Traditional Routing less
(B) the
then Current Freight Cost per pound of Product to the same Committed Location
from the Seller’s Collierville, Tennessee facility; provided,
however,
in the
event the Freight Savings calculated in accordance with this sentence is an
amount less than zero, the Freight Savings shall be zero.
Current
Freight Cost shall mean the then current freight cost per pound of Product
to
ship the purchased Product from the Seller’s designated facility using
Traditional Routing or from Seller’s Collierville, Tennessee facility, as the
case may be, to the Committed Location, such freight cost as determined by
the
most recent quarterly price quote received from Seller’s then current carrier,
said quote being updated each quarter.
Traditional
Routing shall be defined as follows:
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a.
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For
[REDACTED] the traditional route is from (1) Seller’s Lakeland, Florida
facility to (2) the respective Committed
Location.
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b.
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For
[REDACTED] the traditional route is from (1) Seller’s Collierville,
Tennessee facility to (2) Seller’s chill and fill subcontractor in Saint
Louis, Missouri to (3) [REDACTED].
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3.
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[REDACTED].
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4. Except
as
modified and amended hereby, the Agreement shall remain in full force and
effect.
5. This
First Amendment may be executed in a number of identical counterparts which,
taken together, shall constitute collectively one (1) agreement.
[SIGNATURE
PAGE FOLLOWS]
SIGNATURE
PAGE
TO
FIRST
AMENDMENT TO RESIN PURCHASE AGREEMENT
IN
WITNESS WHEREOF, the parties have caused this First Amendment to be executed
by
their duly authorized representatives as of the day and year first above
written.
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INSITUFORM
TECHNOLOGIES, INC.
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By:
/s/ Xxxxx X.
Xxxxxx
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Title:
Vice
President
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Name:
Xxxxx X.
Xxxxxx
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AOC,
LLC
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By:
/s/ Xxxx X.
Xxxxxx
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Title:
Vice
President
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Name:
Xxxx X.
Xxxxxx
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