EXHIBIT 10.1
MARINE FUEL AGREEMENT
AGREEMENT, dated as of the 6th day of May, 1993 (the
"Agreement"), by and between Statia Terminals N.V., a corporation duly
incorporated in the Netherlands Antilles, with offices on the island of St.
Eustatius, Netherlands Antilles, ("Statia") and ********** a corporation duly
incorporated in **********.
RECITALS
A. WHEREAS ********** and Statia (hereinafter collectively referred to as
the "Parties" and individually as a "Party" have entered into a certain
Storage and Throughput Agreement (the "Storage Agreement"), pursuant to
which ********** will store and throughput certain petroleum products
described in Section 2 hereof, in and through certain storage
facilities leased from Statia at the St. Eustatius, Netherlands
Antilles, terminal of Statia (the "Terminal"); and
B. WHEREAS in connection with the Storage Agreement, Statia desires to
purchase from ********** certain petroleum products under the terms and
conditions set forth in this Agreement.
THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1. Term of Agreement. Subject to the provisions of Section 10 hereof, this
Agreement shall commence on May 6, 1993 (the "Term") and shall end at
midnight on December 31, 1995.
If either Party hereto is interested in extending this Agreement, such
Party shall so notify the other Party in writing no less than forty
five (45) days in advance of the date of termination hereof; in such
case, the Parties shall consult promptly with each other to consider
the possibility of extending this Agreement.
* Asterisks indicate redacted language that has been granted confidential
treatment pursuant to Section 552(b)(4) of the Freedom of Information
Act. 5 U.S.C. ss. 552(b)(4) (1996); See 17 C.F.R. ss. 200.80(b)(4)
(1996).
2. ********** Responsibility.
a. ********** will supply to Statia, at Statia's Facility and
into **********'s Segregated Storage, ********** (the
"Commodity" or "Commodities") as may be agreed to between
********** and Statia in accordance with this Agreement to
support certain marketing activities performed by Statia as
later described under Section 4 of this Agreement.
The Commodities shall comply with the specifications set forth
in Attachment A hereto. In the event the Commodities do not
comply with said specifications, the Parties shall mutually
determine the conditions for disposal of said Commodities.
b. ********** shall, at its sole expense, be responsible for
arranging any inspection services or laboratory testing which
may be performed in connection with the delivery of the
Commodities to Statia as provided for under Section 2.a above.
3. ********** Representative.
********** may designate, in writing, a representative (the
"Representative") who shall consult on behalf of ********** on matters
relative to this Agreement.
4. Activities to be Performed by Statia.
x. Xxxxxx shall blend, market and sell, for its own account and
risks, the Commodities received from ********** under this
Agreement as bunker fuel (the "Bunker Commodities"), and
deliver them to its customers (the "Statia Customers") as
Bunker Commodities.
x. Xxxxxx shall provide the required pro forma lab analysis of
the Bunker Commodities in order to satisfy the quality
requirements of the Statia Customers. All inspection fees
associated with the verification of the lab analysis will be
for Statia's account.
x. Xxxxxx shall provide insurance coverage of the Equipment (as
defined under Section 7.b hereto) and shall contract for
Protection and Indemnity (P&I) liability insurance for the
Terminal and the Facilities (as defined under the Storage
Agreement).
5. Purchase Price and Payment Terms.
a. For the purchase of Commodities made by Statia from **********
under this Agreement, Statia shall pay ********** the price
set forth under the Commodity Sale Agreement as defined under
Section 8.b hereof (the "Purchase Price"), within **********
from the date of actual delivery of and transfer of title to
the, Commodities from ********** to Statia. Said Purchase
Price shall be equal to the ********** both as defined under
Section 7 hereof, and, if applicable, plus or minus, as
appropriate, ********** accordance to Section 6.c hereof.
b. In the event a Statia Customer does not make payment to Statia
within the aforementioned ********** period, then Statia shall
have an additional ********** to pay any amounts owed to
**********. During this additional period, Statia shall pay to
********** interest on the outstanding amounts at a rate per
annum equal to ********** on the due date of payment,
**********. For purposes of this Agreement, the term
**********.
c. In addition to any other rights which ********** may have
under the law or this Agreement, if Statia fails to make
timely payment for Commodities sold and delivered, or if
Statia's financial capability becomes impaired or
unsatisfactory to **********, a guarantee judged satisfactory
to ********** shall be delivered by Statia upon demand by
**********, who will have the right to suspend deliveries of
Commodities hereunder until such payment or guarantee is
received.
In the event ********** demands a guarantee in the terms
described above, and within ********** from the date of said
request, Statia does not provide said guarantee or Statia and
********** are unable to agree upon a mutually satisfactory
financial arrangement, ********** shall have the right to
terminate this Agreement in accordance with the provisions of
Section 10.a hereof.
6. ********** Price.
a. The term "********** Price" shall mean a price as defined by
the formula set forth below (the "********** Price Formula"'):
************
********** Price for intermediate grades ********** shall be
determined pursuant to Attachment C hereto.
In the event a price is not published for any ********** Price
shall be mutually determined between the Parties by using the
**********.
b. During the Term of this Agreement, the ********** Price for
each Commodity shall be recalculated I and implemented every
********** In the event any such ********** is a holiday, the
********** Price shall be recalculated and implemented on the
next succeeding business day.
c. In the event Xxxxxx xxxxx a Commodity at a price (the "Sale
Price") other than the
**********
Each Sale Price shall be fixed on the date of Statia's sale of
the Commodities to the Statia Customers and shall not be
subject to change thereafter.
d. Unless otherwise mutually agreed between the Parties, the
********** Price Formula shall apply for an initial period of
********** (the "Pricing Period"), commencing on May 6, 1993,
which Pricing Period shall be automatically renewed for
additional ********** periods, unless either party gives
written notice to the other requesting a modification of the
********** Price Formula. Said modification notice shall be
given no later than ********** in advance of the expiration of
the respective Pricing Period.
In the event the Parties do not reach a mutually acceptable
modification of the ********** Price Formula, either party
shall have the right to terminate this Agreement in accordance
to the provisions of Section 10.a hereof.
7. **********.
a. For the calculation of the ********** Price of the Commodities
sold by ********** to Statia under this Agreement, the Parties
have established the following **********
**********
The ********** are identified in Attachment D hereto
incorporated herein by this reference.
b. As an element of the **********, Statia has included the
********** incurred for the operation of certain marine
equipment for the delivery of the Bunker commodities at the
Terminal (the "Equipment"), a description of which is set
forth under Attachment B hereto. In the event Statia adds
marine equipment to the Equipment, or temporarily substitutes
or permanently replaces the Equipment, or a portion thereof,
with other comparable equipment, or modified the terms of the
charter parties entered into regarding the Equipment, or a
portion thereof, in particular, with respect to the fees to be
paid by Statia under said charterparties, the Parties shall
meet to determine whether as a consequence of the above
mentioned changes the respective ********** must be adjusted.
c. The ********** are based on a minimum sales volume of
********** metric tons of bunker fuel per month at the
Terminal. In the event the actual sales volume exceeds
********** tons of bunker fuel **********, averaged over
**********, or the actual commission paid to bunker brokers is
other than the estimated commission costs set forth in
Attachment D, the ********** set forth in said Attachment D
shall be adjusted at the end of **********. For differences in
actual sales volume, the Parties shall use the formula
illustrated in Attachment E hereto. For the above mentioned
purposes, an ********** reconciliation and, if necessary, an
adjustment shall be made to reflect actual sales volume and
broker commissions.
d. Unless otherwise mutually agreed between the Parties, the
********** shall apply for an initial period of May 6, 1993
through December 31, 1993 (the **********) and shall be
automatically renewed for additional ********** periods,
unless either Party gives written notice to the other
requesting a modification of the **********. Said modification
notice shall be given no later than ********** in advance of
the expiration of the respective **********.
In the event the Parties do not reach a mutually acceptable
modification to the **********, either Party shall have the
right to terminate this Agreement in accordance to the
provisions of Section 10.a hereof.
8. Procedures.
The following procedures shall apply to all sales of Commodities:
a. When a sale of Commodities is made by Statia to anyone of the
Statia Customers, Statia shall place a purchase order with
********** (the "Purchase Order"), in which Purchase Order
Statia shall set forth the composition and volume of the
Commodities it wants to purchase from, and have delivered by
********** at the Terminal from **********'s Segregated
Storage (as defined under the Storage Agreement).
b. In the even ********** accepts the sale of the Commodities
proposed by Statia, then, upon receipt of the Purchase Order,
********** will issue a confirmation (the
"Confirmation/Release"), in which it will declare its
acceptance of the sale and authorize Statia to remove from
**********'s Segregated Storage located at the Terminal, the
composition and volume of the Commodities requested by Statia.
The Purchase Order and the Confirmation/Release shall become a
Commodity Sale Agreement, which agreement shall regulate the
transfer of property and title over the Commodities made by
********** to Statia under this Agreement. A model
Confirmation/Release and General Conditions for Commodity Sale
Agreement are incorporated herein as Exhibit F.
c. When actual delivery of the Bunker Commodities is made by
Statia to the Statia Customers, Statia shall issue the
corresponding bunker delivery receipt (the "Receipt") and
bunker invoice (the "Bunker Invoice"), based on the
composition and volume of the Bunker Commodities actually
delivered and the price to be paid by the Statia Customer for
such sale. Statia shall forward to ********** copies of the
Receipt and the Bunker Invoice.
d. Upon receipt of a copy of the Receipt, ********** shall issue
an invoice to Statia (the "Invoice"), setting forth the
amounts payable by Statia to **********, which amounts shall
be calculated in accordance to the provisions of Section 5.a
hereof.
e. A monthly reconciliation of Statia's records of **********'s
inventory as well as a recapitulation of all monthly activity
will be prepared by Statia for ********** (the
"Reconciliation"). Annually during the Term of this Agreement,
the inventory as reflected on Statia's records will be
confirmed by a physical inventory (the "Inventory
Confirmation"), and, if necessary, an appropriate adjustment
will be made. Both the Reconciliation and Inventory
Confirmation shall be based on a report made by an independent
inspection company, which report shall be obtained at Statia's
sole expense. The first Inventory Confirmation shall be made
twelve (12) calendar months after the starting date of this
Agreement unless in the event of an Advance
Termination as provided for under Section 10.a hereto, in
which event, the appropriate adjustment will be made within
thirty (30) days after such termination.
Notwithstanding the above, ********** shall have the right to
request from Statia information regarding inventories of the
Commodities.
It is expressly understood between the Parties that this
Agreement, including the provisions of the Commodity Sale
Agreement referred to under Section 8-b hereof, regulates the
sale of Commodities by ********** to Statia, therefore,
********** assume no obligations or liabilities whatsoever
with respect to the sale of the Bunker Commodities made by
Statia to the Statia Customers. Any rights and obligations
arising from said sales are entirely independent from and,
except as specifically established under Section 5.b hereof,
shall not be affected by any sales of Commodities as Bunker
Commodities which may be made by Statia to Statia Customers
after having acquired title to the Commodities from
**********.
9. Taxes and Duties.
x. Xxxxxx shall pay directly to the appropriate Government or
other authorities in St. Eustatius or the Netherlands Antilles
any and all taxes, levies, imposts, duties, fees and/or
charges (hereinafter referred to as "taxes") which may be
imposed on ********** by the Island Government of St.
Eustatius or the Government of the Netherlands Antilles (the
"Governments") as a consequence of the performance by Statia
of the activities contemplated by this Agreement and any and
all liabilities for taxes with respect thereto. Statia shall
indemnify and hold ********** free and harmless from any
liability for taxes with respect to the delay or failure by
Statia to pay any such taxes, together with any interests,
penalties and expenses in connection therewith. Statia shall
have the right to contest these taxes, either before or after
payment, so long as Statia holds ********** harmless from any
penalties, interest and increased taxes that may result from
such a contest. Upon receipt of notice from ********** of any
asserted liability for taxes, Statia shall at its own cost
assume full responsibility for the defense against or
settlement of any such liability, and ********** shall
cooperate with Statia by providing such witnesses, documents
and other assistance as Statia may reasonably request.
b. If any taxes are required by law to be deducted or withheld
from any amount payable by Statia to ********** hereunder,
Statia will increase the
sum of any such amount payable to ********** to the extent
necessary in order that the net amount received by **********,
after deduction of all taxes required to be deducted or
withheld with respect to such payment and any other taxes
payable by ********** with respect to the amount of any such
increase, will equal the full amount due and payable to
**********.
c. In the event Statia pays any taxes as provided herein or makes
any deductions or withholdings from amounts paid hereunder,
Statia shall forward to ********** copies of official receipts
or other evidence acceptable to ********** establishing
payment of such amounts.
d. Notwithstanding any other provision of this Agreement, any
Commodity Sale Agreement, or the Storage Agreement, including,
but not limited to Sections 9.a, 9.b or 9.c hereof, in no
event shall Statia be liable to pay:
1. any taxes, including income taxes, which may be
imposed on ********** by virtue of any trading
activities which are not covered by the terms of this
Agreement, whether or not such trading results from
the use of the Terminal as provided under the Storage
Agreement;
2. any income taxes which may be imposed on **********
by any governmental or other authorities, including,
but not limited to, the Governments; or
3. any applicable port fees, fees for berthing services,
anchorage and waterway usage fees and dock charges
(the "Fees") incurred for delivery of the Commodities
at the Terminal. In the event the delivery of the
Commodities is performed by vessels other than
vessels owned or operated by ********** payment of
the applicable Fees shall be paid by the agent or
owner of the respective vessel.
e. Notwithstanding any other provision of this Section 9, in the
event either Party become liable for payment of any one of the
taxes referred to under this Section (excluding the taxes
referred to under this Section 9.d.1 and 9.d.3 hereof), upon
written notice from the affected Party, the Parties shall meet
to determine whether the economic terms of this Agreement are
to be amended. In the event the Parties do not reach an
agreement concerning the necessity of any such amendment,
either Party shall have the right to terminate this Agreement
in accordance with Section 10.a hereof.
10. Termination
a. Advance Termination. In the event of the existence of any
conditions specified in any one of Sections 5.c, 6.d, 7.d, or
9.e hereof, this Agreement shall terminate in the following
manner:
1. With regard to disagreements related to Sections 6.d
or 7.d (except with regard to changes to the
Equipment pursuant to Section 7.b), upon the
expiration of the respective Pricing Period
2. With regard to disagreements related to Section 7.d
(but only with regard to changes to the Equipment
pursuant to Section 7.b), or 9.e, sixty (60) days
after notice of Advance Termination given by either
Party to the other.
3. In the event of Statia's failure to provide
********** with the guarantee requested pursuant to
Section 5.c hereof or disagreement between the
Parties concerning a mutually satisfactory financial
arrangement as provided for in said section, the
Agreement shall terminate immediately upon notice of
Advance Termination given to Statia by **********.
b. This Agreement shall also terminate immediately upon the
termination of the Storage Agreement.
c. Upon expiration of the term of this Agreement or upon any
Advance Termination, this Agreement shall be of no further
force and effect, except for the rights and obligations which
became vested prior to such termination, including
**********'s right to demand and obtain payment of any amounts
outstanding owed by Statia for Commodities delivered by
********** prior to the termination of this Agreement.
In any event, the Parties shall agree to the disposition of
the Commodities remaining at the Terminal as of the date of
termination of this Agreement.
11. Force Majeure
a. Neither ********** nor Statia shall be liable for failure to
perform any or all of the provisions of this Agreement if
performance has been delayed, hindered or prevented by reason
of any cause beyond the reasonable control of ********** or
Statia, as the case may be, even though the affected Party
exercised due diligence. The expression "cause beyond the
reasonable control of ********** or Statia" shall be deemed to
include, for example: wars, hostilities, public enemy or
belligerent's actions, sabotage, blockade, revolutions,
insurrections, riots or commotions; acts of God: fires, frost
or ice, earthquakes, storms, lightning, tidal wave or perils
of the sea; navigational accidents, vessel damages or
breakdowns, loss of tanker due to sinking, by belligerent's or
governmental confiscations, with or without formal
requisition; accidents or closing of ports, docks, dams,
channels, river beds; strikes or agreements among workers,
lockouts or other labor disturbances; explosions or accidents
caused by fires or other causes to: xxxxx, pipelines, storage
deposits, refinery facilities, machinery or other facilities,
and also included are faults or omissions caused or due to:
expropriation, requisition, confiscation or nationalization;
embargoes; export or import restrictions, or restrictions of
production, rationing or allocation of same, whether imposed
by law, decree or regulation by insistence, request or
instructions of any governmental authority or organization
owned or controlled by any government, or by any person
purporting to represent a government, to the interference,
restriction or onerous regulations imposed by any governmental
authority to whose jurisdiction any of the Parties is subject
to, whether civil or military, legal or de facto, or which
purports to act under any Constitution, Decree, Act or
otherwise. Notwithstanding the above, Statia shall not be
released from its obligation to make payments for Commodities
purchased from ********** under this Agreement.
b. Any of the Parties may terminate this Agreement by written
notice to the other, if an of the aforementioned circumstances
persists during ninety (90) consecutive days. Said notice must
be given to the other Party at least thirty (30) days before
the effective date of termination.
12. Entire Agreement
a. This Agreement and its respective Attachments, which are
incorporated herein by this reference set forth the entire
agreement and understanding between the Parties with respect
to the transactions contemplated hereby and supersedes all
prior agreements, arrangements and understandings relating the
subject matter hereto, including a certain Letter of Agreement
entered into on July 13, 1990.
13. Governing Law and Arbitration
a. This Agreement shall be governed by and construed in
accordance with the laws of the Netherlands Antilles.
b. Any dispute, controversy or claim arising out of or related to
this Agreement, or to the breach, termination of invalidity
thereof which cannot be amicably settled between the Parties,
shall be finally settled by arbitration in accordance with the
UNICITRAL Arbitration Rules in effect on the date of this
Agreement. The appointing authority shall be the American
Arbitration Association.
The arbitration case shall be administered by the American
Arbitration Association in accordance with its "Procedure for
Cases under the UNICITRAL Arbitration Rules." The arbitration
shall be conducted in the city of Xxx Xxxx, Xxxxx xx Xxx Xxxx,
Xxxxxx Xxxxxx of America, in the English language.
The award of the arbitrator(s) shall be final and binding on
the Parties. Judgment upon any award rendered may be entered
in any court having jurisdiction thereof or application may be
made to such court for judicial acceptance of the award and an
order of enforcement, as the case may be.
STATIA TERMINALS N.V. **********
By
------------------------
Title:
--------------------
ATTACHMENT A
Product Specifications
**********
ATTACHMENT B
DESCRIPTION OF MARINE EQUIPMENT
a. Barges
Barge "St. Xxxxxx" 28,620 bbls. fuel oil
4,380 bbls. gas oil
--------------------
33,000 bbls. Total
Barge "Statia Trader" 17,315 bbls. fuel oil
685 bbls. gas oil
--------------------
18,000 bbls. Total
The barges are both American flag, American Bureau of Shipping load
line, "ocean" certified and equipped with volumetric metering and
in-line blending capability.
b. Tug Boats. Statia has on charter two oceangoing tug boats, the "Xxxxxxx
X. Xxxxxxxxxx" and the "Xxxxxxxx X. Xxxxxxxxx" which are operated at
the Terminal with fuel provided by Statia.
ATTACHMENT C
**********
ATTACHMENT D
**********
ATTACHMENT E
**********
EXHIBIT F
PART 1
MODEL TELEX FOR SALES OF COMMODITIES TO
STATIA TERMINALS N.V.
CONFIRMATION/RELEASE COMMODITY SALE AGREEMENT
REFERENCE IS MADE TO PURCHASE ORDER NUMBER _____________ ISSUED ON
___________ BY YOUR GOODSELVES. PURSUANT TO SECTION 8.b OF THE MARINE FUEL
AGREEMENT ENTERED INTO AS OF MAY 6, 1993 BETWEEN OUR COMPANY AND YOUR
GOODSELVES, ********** IS HEREBY PLEASED TO CONFIRM OUR AGREEMENT FOR THE
PURCHASE/SALE OF COMMODITIES AND AUTHORIZES STATIA TERMINALS N.V. FOR THE
WITHDRAWAL FROM **********'S DEDICATED STORAGE CAPACITY AT THE ST. EUSTATIUS
TERMINAL OF STATIA TERMINALS N.V., THE VOLUME AND QUALITY OF COMMODITIES HEREIN
REFERRED TO, UNDER THE TERMS AND CONDITIONS SET FORTH BELOW:
1. SELLER: **********
ADDRESS OF SELLER:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
TELEX NUMBER:
------------------------------------
ATTN: NAME AND INDICATOR OF MANAGER
EXHIBIT F
Page 2
2. BUYER: STATIA TERMINALS, N.V.:
ADDRESS OF BUYER:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
TELEX NUMBER:
------------------------------------
ATTN: NAME AND CONTACT PERSON AT STATIA
3. DELIVERY PERIOD:
(INSERT DELIVERY WINDOW SET FORTH IN THE PURCHASE ORDER)
4. PRODUCT AND SPECIFICATIONS:
4.1 COMMERCIAL NAME OF THE COMMODITY (FOR FUEL OIL)
SPECS MIN-MAX UNIT METHOD
------- --------- ------ -------
4.2 COMMERCIAL NAME OF THE COMMODITY (FOR DILUENTS)
SPECS MIN-MAX UNIT METHOD
------- --------- ------ -------
5. QUANTITY:
5.1 COMMERCIAL NAME OF THE COMMODITY (FOR FUEL OIL)
DELIVERED QUANTITY:
5.2 COMMERCIAL NAME OF THE PRODUCT (FOR DILUENTS).
DELIVERED QUANTITY:
EXHIBIT F
Page 3
6. DESTINATION
6.1 COMMERCIAL NAME OF THE PRODUCT (FOR BOTH FUEL OIL &
DILUENTS)
END USE: MARINE BUNKERS
SELLER AGREES TO ENTER INTO THIS CONTRACT, BASED ON BUYER'S
EXPRESSLY UNDERTAKING TO DESTINE THE COMMODITIES TO THE END
USE PREVIOUSLY INDICATED.
BUYER MAY NOT MODIFY THE END USE STIPULATED ABOVE, UNLESS
SELLER'S WRITTEN CONSENT IS ISSUED NO LATER THAN SEVEN (7)
DAYS PRIOR TO DELIVERY OF THE COMMODITIES.
7. PRICE:
SET FORTH SALE PRICE OF THE COMMODITY AS PER SECTION 8.d OF THE MARINE
FUEL AGREEMENT.
8. PAYMENT TERMS:
SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE MARINE FUEL AGREEMENT,
PAYMENT SHALL BE EFFECTED INTO SELLER'S BANK ACCOUNT AS PER SELLER'S
TELEX INVOICE INSTRUCTIONS.
PAYMENT TO BE MADE IN (UNITED STATES DOLLARS) SAME DAY FUNDS WITHIN 30
DAYS FROM THE DATE OF DELIVERY OF THE COMMODITIES TO STATIA.
EXHIBIT F
Page 4
ONLY AT BUYER'S WRITTEN REQUEST SELLER SHALL GRANT AN ADDITIONAL 30
DAYS FOR PAYMENT SUBJECT TO INTEREST PAYMENT AS PER SECTION 5 OF THE
MARINE FUEL AGREEMENT IN WHICH CASE PAYMENT BY BUYER SHALL BE DUE
WITHIN 60 DAYS FROM THE DATE OF DELIVERY. IN THE EVENT OF FAILURE TO
PAY THE PURCHASE PRICE IN THE MANNER PROVIDED ABOVE, STATIA SHALL PAY
INTEREST FOR DELAYED PAYMENT IN ACCORDANCE TO THE PROVISIONS OF CLAUSE
4 OF THE GENERAL CONDITIONS OF THIS COMMODITY SALE AGREEMENT.
WHENEVER THE DUE DATE FOR PAYMENT FALLS ON SATURDAY, SUNDAY OR BANK
HOLIDAY IN THE CITY OF NEW YORK, U.S.A., PAYMENT SHALL BE EFFECTED ON
THE PRECEDING WORK DAY.
9. DELIVERY PORT(S):
XX. XXXXXXXXX XXXXXXXX XX XXXXXX XXXXXXXXX, X.X.
00. ALL OTHER TERMS AND CONDITIONS AS PER ********** GENERAL CONDITIONS FOR
SALES OF COMMODITIES, WHICH BUYER HAS RECEIVED AND DECLARES TO KNOW AND
ACCEPT.
11. NOTES & COMMENTS OF INTEREST (IF APPLICABLE)
EXHIBIT F
Page 5
PART 2
GENERAL CONDITIONS
COMMODITY SALE AGREEMENT
CLAUSE 1
RELATIONSHIP TO THE MARINE FUEL AGREEMENT
These General Conditions of Sale of Commodities, together with the
Confirmation/Release issued by Seller pursuant to Section 8.b of a certain
Marine Fuel Agreement entered into between Buyer and Seller as of May 6, 1993
(the "Marine Fuel Agreement"), are deemed to be part of said Marine Fuel
Agreement, and shall regulate the Sale of Commodities by Seller to Buyer under
said Agreement.
CLAUSE 2
QUANTITY AND QUALITY OF COMMODITIES
2.1 Seller agrees to deliver and sell to Buyer and Buyer agrees to receive
and purchase from Seller the Quantity and Quality of Commodities
referred to under the Confirmation/Release issued by Seller for each
particular parcel of commodities.
2.2 Disclaimer of Warranties: THERE ARE NO GUARANTEES OR WARRANTIES
EXPRESSED OR IMPLIED OF MERCHANTABILITY, FITNESS OR SUITABILITY OF THE
COMMODITIES FOR ANY PARTICULAR PURPOSE OR USE OR OTHERWISE, WHICH
EXTEND BEYOND THE DESCRIPTION OF THE COMMODITIES CONTAINED IN THE
CONFIRMATION-RELEASE ISSUED BY SELLER FOR EACH PARTICULAR PARCEL OF
COMMODITIES.
EXHIBIT F
Page 6
CLAUSE 3
PRICE
3.1 BUYER shall pay SELLER the amount that results from applying the Price
specified in the Confirmation/Release as calculated under Section 5.a
of the Marine Fuel Agreement to the quantity of Commodities certified
as delivered in accordance with Section 8.c of the Marine Fuel
Agreement.
CLAUSE 4
PAYMENT
4.1 Unless otherwise agreed between BUYER and SELLER, payment shall be made
as specified in the Confirmation/Release in net cash without discount,
allowance, retention or reduction. SELLER's invoice to BUYER may be
sent by telegram, cable or telex.
4.2 In the event that SELLER, at any time, extends credit to BUYER, such
extension of credit shall be granted in writing, either in the
Confirmation/Release, or in a separate document. Said credit shall be
subject to the terms and conditions therein stated.
4.3 Any invoice for which payment is not received by SELLER, by the due
date thereof, shall bear interest at the rate of one percent (1%) per
month, plus 0.5% service charge per month; (however, such interest
and/or service charge(s) shall be adjusted in accordance with changes
established by Act(s), Decree(s) and/or Regulation(s) on the subject);
or the Prime Rate (as defined previously in 5.b of the Marine Fuel
Agreement) on the due date for payment, divided by 12, whichever is
EXHIBIT F
Page 7
the higher, calculated on a thirty (30) days per month basis from such
due date until payment is received. Nothing contained herein shall
limit any of SELLER's rights specified in Clause 8 hereof.
4.4 Payment for all commodities sold hereunder shall be made by BUYER to
SELLER in the currency and at the place or places established in the
Confirmation/Release or in accordance with SELLER's requirements. In
the event that SELLER requires payment in a currency other than that
established in said Confirmation/Release, the rate of exchange applied
shall be the buying rate in effect in the place of payment, on the due
date of such payment.
CLAUSE 5
DELIVERY - TITLE - RISK
5.1 Save and except for any agreement to the contrary between the Parties
deliveries of commodities pursuant to this Contract shall be made in
accordance to the provisions of the Confirmation/Release sent by SELLER
to BUYER.
5.2 Title to and risk on the Commodities shall pass from SELLER to BUYER:
a) If the Commodities are sold in bulk, as they pass the vessel's
or barge's permanent flange connection of the delivery hose at
the St. Eustatius port.
b) If the Commodities are sold by drum, as they pass the vessel's
rail at the St. Eustatius port.
EXHIBIT F
Page 8
CLAUSE 6
INTERPRETATION
6.1 Failure by either Party to take action against the other in case of the
other Party's noncompliance with obligations or conditions set forth in
this Contract, shall not be interpreted as a waiver to take action for
a subsequent noncompliance of the same or other obligations or
conditions.
6.2 In no case, shall claims between the Parties for indirect, incidental
or consequential damages be allowed.
CLAUSE 7
APPLICABLE LAW
All matters related to the validity, interpretation or compliance of
this Contract shall be governed by the laws of the Netherlands Antilles.
CLAUSE 8
BREACH
In case of failure of SELLER or BUYER to comply with any obligations
assumed under this Contract, the other Party may, without prejudice to any other
rights or recourse available to it, consider such failure as a breach of this
Contract and terminate same, or unilaterally suspend its performance until such
failure is corrected, and in both cases, may claim damages for the breach of
this Contract.
EXHIBIT F
Page 9
CLAUSE 9
MODIFICATION
This Contract may only be modified by a document duly executed by both
Parties.
The Present Contract is composed of the Purchase Order issued by BUYER,
Confirmation/Release issued by SELLER in response to said Purchase Order and by
these GENERAL CONDITIONS OF SALE OF COMMODITIES, and by the following
attachments:
This Contract is executed in ___________( ) identical originals, at
__________, on the ____ day of ____________, 19__.
-------------------------------- --------------------------------
