CALCINED COKE SUPPLY AGREEMENT
This Agreement is made as of the 1st day of January 2002 by and between GREAT
LAKES CARBON CORPORATION, a Delaware corporation ("GLC"), and ALCOA INC., a
Delaware corporation ("Alcoa").
W I T N E S S E T H
WHEREAS, Alcoa desires to arrange for the procurement of calcined petroleum
coke as hereinafter set forth, and
WHEREAS, GLC is willing to supply Alcoa with calcined petroleum coke in
accordance with the provisions of this Agreement,
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree
as follows:
1. DEFINITION
In addition to the terms defined above, the following terms shall have the
following meanings:
"Calcined Coke" shall mean delayed petroleum coke which has been produced
through the process of calcination at one of the coke facilities and which
meets the specifications set forth in Appendices C, D, and E to this
Agreement.
"Coke Facility" shall mean the calcined petroleum coke facility located at Enid,
Oklahoma, which is owned and operated by GLC.
"Delivered Cost" shall mean the cost of the component green cokes, plus all
costs of delivery of such green cokes to the Coke Facilities, whether by rail,
barge, truck, or vessel.
"Green Coke" shall mean petroleum coke to be acquired and calcined by GLC in
accordance with the terms of this Agreement.
"Metric Ton" shall mean a metric ton of one thousand kilograms (2,204.6 pounds
avoirdupois).
2. TERM
This Agreement shall commence January 1, 2002, and terminate on [CONFIDENTIAL],
and continue for additional terms of one (1) year each provided that
either party may terminate this Agreement at the end of the initial term or any
subsequent one (1) year term by giving not less than one hundred eighty (180)
days written notice to the other party. It is hereby agreed that upon
execution of this Agreement, the agreement between GLC and Aluminum Company of
America effective May 1, 1998, titled "Calcined Coke Supply Agreement", along
with any operative amendments or letter agreements relating thereto, shall be
terminated effective December 31, 2001, in all respects except for any payments
that may be due from Alcoa to GLC and for any payments due from GLC to Alcoa.
3. QUANTITY
Alcoa agrees to purchase and accept delivery from GLC, and GLC agrees to sell
and deliver to Alcoa during each calendar year of this Agreement, the total
actual Calcined Coke requirements of Alcoa's Xxxxxxx, Indiana, plant, Alcoa,
Tennessee, plant, and Rockdale, Texas, plant. On or prior to November 1st of
each year, Alcoa shall provide GLC with an estimated shipping schedule for the
plant for the following calendar year. Such estimated schedule shall be
subject to change up to thirty (30) days prior to the month of delivery to
accommodate reasonable changes in requirements, inventory adjustment, and the
like. [CONFIDENTIAL]
Alcoa may purchase dust collector fines or other substitute material(s) from a
third party(ies) for the duration of this agreement.
4. PRICE
Alcoa shall pay to GLC per metric ton of Calcined Coke FOB Enid, Oklahoma,
purchased from GLC pursuant to this Agreement (the "Calcined Coke Price"),
[CONFIDENTIAL]
[CONFIDENTIAL]
5. GREEN COKE SELECTION
[CONFIDENTIAL]
6. QUALITY
GLC warrants that the Calcined Coke to be sold by GLC to Alcoa hereunder shall
conform to and meet the specifications (within normal statistical variation) set
forth in Appendices C, D, and E, respectively, that GLC has good title to the
Calcined Coke delivered under this Agreement, and that the Calcined Coke shall
be delivered free from all security interests, liens, or encumbrances. Alcoa
shall not be obligated to unload or to accept or reject any Calcined Coke
until Alcoa's receipt of GLC's Certificate of Chemical and Physical Analysis of
such Calcined Coke, and any demurrage resulting from delay shall be for the
account of GLC. Any quantities of Calcined Coke which fail to meet the
specifications contained in Appendices C, D, and E, respectively, may be
rejected by Alcoa, and the quantity thereof shall be deducted from the total
quantity to be purchased annually hereunder. GLC shall, at Alcoa's option,
either refund to Alcoa the price paid by Alcoa for the rejected Calcined Coke
and the transportation costs incurred by Alcoa in transporting the rejected
Calcined Coke to Alcoa's plant (or at Alcoa's request, credit to Alcoa's account
the amount of said price and the transportation costs incurred by Alcoa in
transporting the rejected Calcined Coke to Alcoa's plant) or replace the non-
conforming Calcined Coke with conforming Calcined Coke FOB Alcoa's plant, and,
in either case, pay all costs incurred by Alcoa in removing and returning,
including transportation costs,the rejected Calcined Coke to GLC.
Measurement of all specifications to determine compliance shall be calculated
according to GLC's test procedures as set forth in Appendices C, D, and E,
respectively; however, if either party develops a more accurate test for any
specification, then upon agreement of the other party, such more accurate test
procedure shall then apply.
7. PAYMENT
GLC shall invoice Alcoa on the last day of the month for all Calcined Coke
shipped during the month. Payment shall be made, without discount, by wire
transfer in lawful money of the United States within thirty (30) days from date
of GLC's invoice.
8. DELIVERY
Deliveries of Calcined Coke hereunder shall be made FOB GLC's Coke Facility to
Alcoa in covered xxxxxx rail cars arranged for by GLC for Alcoa's account or
barge arranged by GLC for Alcoa's account or trucks arranged for by either
party. Alcoa shall have the right to designate the carrier and routing. GLC
shall exercise reasonable care in inspecting each rail car, barge, or truck
prior to the commencement of loading and shall refuse to accept for loading any
rail car, barge, or truck which is not suitable for the receipt and transporta-
tion of Calcined Coke. Title to all Calcined Coke sold hereunder shall pass to
Alcoa upon acceptance of loaded rail cars, barges, or trucks at GLC's Coke
Facility by carrier. GLC shall promptly send a written report to Alcoa
indicating the actual weight of Calcined Coke in each rail car, barge, or truck
shipped. Alcoa shall have the right to weigh the Calcined Coke upon receipt by
Alcoa at its final destination, and Alcoa shall notify GLC of any difference in
the weight of the Calcined Coke as determined above. The parties shall promptly
resolve any differences in the weight of the Calcined Coke.
9. FORCE MAJEURE
The obligation of the parties to deliver and receive Coke hereunder (but not the
obligations to pay for Coke previously delivered and accepted) shall be
suspended and excused to the extent that either party is prevented from or
delayed in producing, manufacturing, transporting, delivering, receiving, or
using in its normal manner any Coke because of acts of God, earthquakes, fire,
or flood of the elements; malicious mischief, riots, strikes, lockouts,
boycotts, picketing, labor disturbances, or war; compliance with any directive,
order, or regulation of any governmental authority or representative thereof
acting under claim or color of authority; shortages of or inability to obtain
fuel, electric power, raw material, or manufactured products; total or partial
failure of any part of GLC's or Alcoa's relevant manufacturing facilities,
unavailability of Green Coke from GLC's suppliers, customary transportation, or
delivery facilities; or due to any cause beyond either party's reasonable
control, whether or not similar to the foregoing. The party invoking this
Section shall give notice to the other party within ten (10) days after the
occurrence of the cause of the nature described above stating insofar as known
the probable extent to which it will be unable to perform or be delayed in
performing its obligation hereunder. If either party hereto invokes this
Section, the quantity of Coke shall be reduced by the amount excused pursuant
to the provisions of this Section. The term of this Agreement shall not be
extended as a result of either party invoking this Section.
10. PRORATION OF QUANTITIES
In the event that GLC's ability to comply with its obligations hereunder is
subject to an event of Force Majeure as provided for in Paragraph 9 hereof, GLC,
except as otherwise limited by applicable law, shall allocate the Coke available
among all of its customers with multi-year contracts, including Alcoa, in
proportion to the amounts under contract to all such customers at the time of
occurrence of such an event of Force Majeure. In the event of any curtailment
of any particular Alcoa facility purchasing under this Agreement as a result of
an event of Force Majeure, it is agreed that shipments hereunder shall not be
reduced by a greater percentage than the percentage of reduction of Alcoa's
production.
11. TAXES
GLC shall bear and pay all federal, state, and local taxes based upon or
measured by its gross or net income, all franchise taxes based upon its
corporate existence or its general right to transact business, and any state or
municipal business or occupational taxes.
Alcoa shall pay all sales and use taxes imposed on the sale or use of Calcined
Coke extant on the date of this Agreement.
12. ENTIRE AGREEMENT
This Agreement covers the entire Agreement of the parties in respect to the
subject matter hereof. No statement or agreement, oral or written, made prior
to or at the signing hereof, shall vary or modify the written terms hereof, and
neither party shall claim any amendment, modification, or release from any
provisions hereof by mutual agreement, unless such agreement is in writing
signed by the other party and specifically states that it is an amendment to
this Agreement. For convenience, the parties may use their standard forms,
including purchase order and acknowledgment forms, in performance hereunder, but
such forms may not change this Agreement in any respect.
13. MUTUAL FAIRNESS
It is understood between the parties that before making a decision to reject a
shipment of Coke as provided for in Section 6 of this Agreement, Alcoa shall
give due consideration to the continuing commercial circumstances and
constraints of their respective business and the mutual intent to act in good
faith and shall make every endeavor to discuss with GLC the grounds for
rejecting a shipment, provided, however, that this understanding shall in no way
limit the rights of Alcoa under Section 6.
14. DAMAGES
In no event shall Alcoa or GLC be liable, one to the other, for special,
indirect, or consequential damages.
15. NOTICES
Any notice required to be given hereunder by one party to the other shall be
sufficiently given when deposited in the United States Mail, postage prepaid,
properly addressed to the party to whom such notice is given. Any notice to be
given to GLC shall be addressed as follows:
Great Lakes Carbon Corporation
00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Vice President of Sales
Any notice to be given to Alcoa shall be addressed as follows:
Alcoa Inc.
1200 Riverview Tower
000 X. Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Vice President, Purchasing
16. SAFETY AND HEALTH INFORMATION
GLC shall comply with all applicable laws which require it to provide warnings
and safety and health information relating to Calcined Coke to be delivered
hereunder and shall furnish Alcoa all Material Safety Data sheets.
Alcoa shall comply with all applicable laws relating to the dissemination of the
information described above within its work place and to its employees, agents,
contractors, or customers.
17. ASSIGNMENT
This Agreement shall not be assignable, as to assignment of rights and/or
delegations of duties, in whole or in part by either party or by operations of
law in any manner whatsoever (including, but not limited to, voluntary or
involuntary bankruptcy, receivership, dissolution, liquidation, or death) with-
out the other party's prior written consent, but otherwise shall be binding upon
and shall inure to the benefit of the parties, their representatives, successors
and assigns; provided, however, that a party hereto may assign this Agreement to
a wholly-owned subsidiary without first obtaining the other party's written
consent.
18. HEADINGS
Section headings are for convenience of reference only and in no way shall
affect the interpretation of this Agreement.
19. APPLICABLE LAW
This Agreement is to be governed by and construed under the laws of the common-
wealth of Delaware.
20. CONFIDENTIALITY
GLC and Alcoa shall each hold in confidence and shall not disclose, directly or
indirectly, any information relating to the manner of calculating the price for
Calcined Coke, or the actual price paid by Alcoa to GLC, hereunder to a third
party without the prior written consent of Alcoa or GLC, as the case may be,
during the term hereof and for a period of one (1) year after termination of
this Agreement. Notwithstanding the foregoing, Alcoa may disclose the foregoing
information to a third party who is not a competitor of GLC or Alcoa, and GLC
may disclose the foregoing information to a third party who is not a competitor
of Alcoa or GLC, provided that, in either case, such third party shall agree in
writing to hold such information in confidence.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate as of
thedate first above written.
WITNESS: GREAT LAKES CARBON CORPORATION
___________________________________ By: __________________________________
Title: ________________________________
WITNESS: ALCOA INC.
___________________________________ By: __________________________________
Title: ________________________________
APPENDIX A
[CONFIDENTIAL]
APPENDIX B
Rockdale
4Q '2001
R-100 Pricing
01-Oct
[CONFIDENTIAL]
APPENDIX B - (cont.)
Tennessee
4Q '2001
T-100 Pricing
01-Oct
[CONFIDENTIAL]
APPENDIX B (cont.)
Xxxxxxx
4Q '2001
W-100 Pricing
01-Oct
[CONFIDENTIAL]
APPENDIX C
ROCKDALE OPERATIONS CPC SPECIFICATIONS
Level 1 - Composite of individual cars in a batch will exhibit control around
target and Cpk = 1.0, batch composite data required with each batch, statistical
data (control charts, histograms and calculation of capability) required
quarterly.
Characteristic Target Specification Limits Method
------------------------------------------------------------------------------
Vibrated Bulk Density [CONFIDENTIAL] GLC-XXX-144B
Real Density [CONFIDENTIAL] GLC-C-13C
+4 Mesh [CONFIDENTIAL] GLC-C-18
Sulphur [CONFIDENTIAL] GLC-C-21/22 (XRF)
Level 2 - Monthly composite of all cars in the period will meet specification
limits, composite data required monthly.
Characteristic Specification Limits Method
------------------------------------------------------------------------------
Vanadium [CONFIDENTIAL] GLC-C-21/22 (XRF)
Iron [CONFIDENTIAL] GLC-C-21/22 (XRF)
Silicon [CONFIDENTIAL] GLC-C-21/22 (XRF)
Nickel [CONFIDENTIAL] GLC-C-21/22 (XRF)
Sodium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Calcium [CONFIDENTIAL] GLC - XRF
-100 Mesh [CONFIDENTIAL] GLC-C-18
+1 inch [CONFIDENTIAL] GLC-C-18
Level 3 - Semi-annual composite of all cars in the period will meet
specification limits, composite data required semi-annually.
Characteristic Specification Limits Method
------------------------------------------------------------------------------
Air Reactivity [CONFIDENTIAL] RDC-142
CO2 Reactivity (Loss) [CONFIDENTIAL] RDC-141
Phosphorous [CONFIDENTIAL] GLC-XXX-196(ICP)
Arsenic [CONFIDENTIAL] GLC-XXX-196 (ICP)
Beryllium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Cadmium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Chromium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Lead [CONFIDENTIAL] GLC-XXX-196 (ICP)
Mercury [CONFIDENTIAL] GLC-XXX-196 (ICP)
APPENDIX D
TENNESSEE OPERATIONS CPC SPECIFICATIONS
Level 1 - Composite of individual cars in a batch will exhibit control around
target and Cpk >/_ 1.0, batch composite data required with each batch,
statistical data (control charts, histograms and calculation of capability)
required quarterly.
Characteristic Target Specification Limits Method
------------------------------------------------------------------------------
Vibrated Bulk Density [CONFIDENTIAL] GLC-XXX-144B
Real Density [CONFIDENTIAL] GLC-C-13C
+4 Mesh [CONFIDENTIAL] GLC-C-18
Sulphur [CONFIDENTIAL] GLC-C-21/22(XRF)
Level 2 - Monthly composite of all cars in the period will meet specification
limits, composite data required monthly.
Characteristic Specification Limits Method
-----------------------------------------------------------------------------
Vanadium [CONFIDENTIAL] GLC-C-21/22 (XRF)
Iron [CONFIDENTIAL] GLC-C-21/22 (XRF)
Silicon [CONFIDENTIAL] GLC-C-21/22 (XRF)
Nickel [CONFIDENTIAL] GLC-C-21/22 (XRF)
Sodium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Calcium [CONFIDENTIAL] GLC - XRF
-100 Mesh [CONFIDENTIAL] GLC-C-18
+1 inch [CONFIDENTIAL] GLC-C-18
Level 3 - Semi-annual composite of all cars in the period will meet
specification limits, composite data required semi-annually.
Characteristic Specification Limits Method
-----------------------------------------------------------------------------
Air Reactivity [CONFIDENTIAL] RDC-142
CO2 Reactivity(Loss) [CONFIDENTIAL] RDC-141
Phosphorous [CONFIDENTIAL] GLC-XXX-196 (ICP)
Arsenic [CONFIDENTIAL] GLC-XXX-196 (ICP)
Beryllium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Cadmium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Chromium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Lead [CONFIDENTIAL] GLC-XXX-196 (ICP)
Mercury [CONFIDENTIAL] GLC-XXX-196 (ICP)
APPENDIX E
XXXXXXX OPERATIONS CPC SPECIFICATIONS
Level 1 - Composite of individual cars in a batch will exhibit control around
target and Cpk >/_ 1.0, batch composite data required with each batch,
statistical data (control charts, histograms and calculation of capability)
required quarterly.
Characteristic Target Specification Limits Method
-----------------------------------------------------------------------------
Vibrated Bulk Density [CONFIDENTIAL] GLC-XXX-144B
Real Density [CONFIDENTIAL] GLC-C-13C
+4 Mesh [CONFIDENTIAL] GLC-C-18
Sulphur [CONFIDENTIAL] GLC-C-21/22 (XRF)
Level 2 - Monthly composite of all cars in the period will meet specification
limits, composite data required monthly.
Characteristic Specification Limits Method
-----------------------------------------------------------------------------
Vanadium [CONFIDENTIAL] GLC-C-21/22 (XRF)
Iron [CONFIDENTIAL] GLC-C-21/22 (XRF)
Silicon [CONFIDENTIAL] GLC-C-21/22 (XRF)
Nickel [CONFIDENTIAL] GLC-C-21/22 (XRF)
Sodium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Calcium [CONFIDENTIAL] GLC - XRF
-100 Mesh [CONFIDENTIAL] GLC-C-18
+1 inch [CONFIDENTIAL] GLC-C-18
Level 3 - Semi-annual composite of all cars in the period will meet
specification limits, composite data required semi-annually.
Characteristic Specification Limits Method
-----------------------------------------------------------------------------
Air Reactivity [CONFIDENTIAL] RDC-142
CO2 Reactivity(Loss) [CONFIDENTIAL] RDC-141
Phosphorous [CONFIDENTIAL] GLC-XXX-196 (ICP)
Arsenic [CONFIDENTIAL] GLC-XXX-196 (ICP)
Beryllium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Cadmium [CONFIDENTIAL] GLC-XXX-196 (ICP
Chromium [CONFIDENTIAL] GLC-XXX-196 (ICP)
Lead [CONFIDENTIAL] GLC-XXX-196 (ICP)
Mercury [CONFIDENTIAL] GLC-XXX-196 (ICP)
s:\legal\alcoa-BR\road C Final Agreements\Agreements\alcoak0main.doc
