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EXHIBIT 10.13
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CHLORINE AND CAUSTIC SODA SALES AGREEMENT
between
PIONEER CHLOR ALKALI COMPANY, INC.
and
OCCIDENTAL CHEMICAL CORPORATION
Dated as of June 17, 1997
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TABLE OF CONTENTS
PARTIES AND RECITALS PAGE NUMBER
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions................................................1
ARTICLE II
COMMITMENTS OF PURCHASE AND SALE
SECTION 2.1 Purchase Commitment........................................3
SECTION 2.2 Sales Commitment...........................................4
ARTICLE III
QUANTITY
SECTION 3.1 National Accounts Contracts Requirements...................4
SECTION 3.2 Notification of Annual Requirements........................5
SECTION 3.3 Priority of Obligations to OxyChem.........................5
ARTICLE IV
TERM
SECTION 4.1 Term of This Agreement.....................................6
SECTION 4.2 Effect of Modifications of National Account Contracts......6
ARTICLE V
PRICE
SECTION 5.1 Prices of Chlorine and Caustic Soda........................6
SECTION 5.2 Notification of Price; OxyChem's Payment...................6
SECTION 5.3 Pioneer's Right to Audit...................................8
ARTICLE VI
DELIVERY
SECTION 6.1 Shipping Instructions......................................8
SECTION 6.2 Title and Risk of Loss.....................................9
SECTION 6.3 Transportation Costs.......................................9
SECTION 6.4 OxyChem's Right to Audit Certain Transportation Charge.....9
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PAGE NUMBER
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ARTICLE VII
MEASUREMENT
SECTION 7.1 Rail Car Delivery..........................................10
SECTION 7.2 Calibration of Measuring Devices...........................10
ARTICLE VIII
WARRANTIES; LIMITATIONS OF CLAIMS
SECTION 8.1 Pioneer's Warranty.........................................11
SECTION 8.2 Patents....................................................11
SECTION 8.3 Packaging, Uses and Safe Handling..........................11
SECTION 8.4 Emergency Response.........................................11
SECTION 8.5 Quality Claims; Liability..................................11
ARTICLE IX
TAXES
SECTION 9.1 Responsibility for Taxes...................................12
ARTICLE X
LIABILITY AND RESPONSIBILITY
SECTION 10.1 Allocation of Liability....................................12
SECTION 10.2 Procedures for Indemnification.............................13
ARTICLE XI
EXCUSE OF PERFORMANCE
SECTION 11.1 Excuse of Performance......................................14
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 Default and Remedies.......................................15
SECTION 12.2 Certain Damages Excluded...................................16
SECTION 12.3 Duty to Mitigate...........................................16
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Successors and Assigns.....................................16
SECTION 13.2 Entire Agreement; Amendment................................17
SECTION 13.3 Governing Law..............................................17
SECTION 13.4 Notices....................................................18
SECTION 13.5 Competition; Access to National Account Contracts..........19
SECTION 13.6 Severability...............................................19
SECTION 13.7 Headings...................................................19
SECTION 13.8 Counterparts...............................................19
SECTION 13.9 Construction...............................................19
SECTION 13.10 Third Party Beneficiaries..................................19
SECTION 13.11 Payments...................................................19
SECTION 13.12 Incorporation of Appendices................................19
Appendices
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LIST OF APPENDICES
Appendix Description
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Appendix A Caustic Soda Specifications
Appendix B Chlorine Specifications
Appendix C National Accounts
Appendix D National Account Contracts
Appendix E Expiration Dates of National Account Contracts
Appendix F Chlorine and Caustic Soda Estimates
Appendix G Pioneer's Standard Terms and Conditions
Appendix H Initial Month Quantities and Shipping Details
Appendix I Delivery Performance Standards
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CHLORINE AND CAUSTIC SODA SALES AGREEMENT
THIS CHLORINE AND CAUSTIC SODA SALES AGREEMENT, dated as of the 17th
day of June, 1997, is between OCCIDENTAL CHEMICAL CORPORATION, a New York
corporation, and PIONEER CHLOR ALKALI COMPANY, INC., a Delaware corporation.
WHEREAS, pursuant to the Asset Purchase Agreement (as such term and
certain other terms used in this Agreement with initial capital letters are
defined or incorporated by reference in Article I), the Parties have provided
for the sale by OCC Tacoma, a wholly owned subsidiary of OxyChem, and the
purchase by Pioneer, of OCC Tacoma's chloralkali manufacturing facility located
at Tacoma, Washington; and
WHEREAS, after the sale of the Tacoma Plant to Pioneer, OxyChem will
retain a significant national chloralkali manufacturing business, including,
without limitation, the right, title and interest of OxyChem in the National
Account Contracts in the course of the performance of which OxyChem has
utilized chlorine and caustic soda manufactured at the Tacoma Plant; and
WHEREAS, after the sale of the Tacoma Plant to Pioneer, OxyChem desires
to continue to discharge certain of its obligations pursuant to the National
Account Contracts by purchasing certain quantities of chlorine and caustic soda
from Pioneer; and
WHEREAS, after the sale of the Tacoma Plant to Pioneer, Pioneer desires
to deliver and sell, and OxyChem desires to take and pay for, certain
quantities of chlorine and caustic soda in order to permit OxyChem to continue
to discharge such obligations until the expiration or other termination of the
National Account Contracts, as such National Account Contracts are in effect as
of the date of this Agreement; and
WHEREAS, the Parties are entering into this Agreement in accordance
with the provisions of the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
benefits and agreements hereinafter set forth, the Parties do hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated below (such meanings to be equally applicable to both the singular
and the plural forms of the terms defined). Capitalized
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terms not otherwise specifically defined herein shall have the meanings
assigned to them in the Asset Purchase Agreement.
"Affiliate" means any Person that is an "affiliate" within the meaning
of the regulations promulgated under the Securities Act of 1933, as amended, as
such regulations and Act shall be amended and in effect on the date of this
Agreement.
"Agreement" means this Chlorine and Caustic Soda Sales Agreement, as
the same may be amended pursuant to the provisions hereof.
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated as
of May 14, 1997, between OCC Tacoma and Pioneer.
"caustic soda" means sodium hydroxide (NaOH) having the specifications
set forth in Appendix A to this Agreement and measured in units of dry short
tons.
"chlorine" means liquid chlorine having the specifications set forth in
Appendix B to this Agreement. All references to quantities of chlorine in this
Agreement shall be in units of short tons.
"Claim" has the meaning specified in Section 10.1.
"dry short ton" means 2000 pounds of 50% liquid caustic soda, basis
76% Na(2)O.
"Indemnified Party" has the meaning specified in Section 10.2.
"Indemnifying Party" has the meaning specified in Section 10.2.
"Initial Year" means the period of time from the date of this Agreement
until December 31, 1997.
"Losses" has the meaning specified in Section 10.1.
"month" means a calendar month.
"National Accounts" means the companies listed in Appendix C to this
Agreement.
"National Account Contracts" means the contracts listed in Appendix D
to this Agreement.
"OCC Tacoma" means OCC Tacoma, Inc., a Delaware corporation.
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"Oxy Accountant" means Arthur Andersen LLP or such other nationally
recognized accounting firm as shall be selected by OxyChem.
"OxyChem" means Occidental Chemical Corporation, a New York corporation.
"Party" means Pioneer or OxyChem, as applicable, and "Parties" means
Pioneer and OxyChem.
"Person" means any natural person, corporation, limited liability
company, partnership, group, joint venture, trust, association or other
business enterprise or organization or any government or agency or political
subdivision thereof or any other entity.
"Pioneer" means Pioneer Chlor Alkali Company, Inc., a Delaware
corporation.
"Pioneer Accountant" means Deloitte & Touche LLP or such other
nationally recognized accounting firm as shall be selected by Pioneer.
"Price" means, with respect to each of chlorine and caustic soda, the
price thereof determined in accordance with the provisions of Article V.
"short ton" means two thousand (2000) pounds.
"Superfund Assessment" means the assessment on the production and sale
of chlorine or caustic soda imposed pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, as the same may be from time to time
amended or reauthorized and in effect.
"Tacoma Plant" means the chlor alkali manufacturing facility acquired by
Pioneer pursuant to the Asset Purchase Agreement and located at 605 Alexander
Avenue, Tacoma, Washington.
"Term" has the meaning specified in Section 4.1.
"year" or "yearly" means the Initial Year and any calendar year
occurring thereafter.
ARTICLE II
COMMITMENTS OF PURCHASE AND SALE
SECTION 2.1 Purchase Commitment. Upon the terms and subject to the
conditions set forth in this Agreement, Oxychem agrees to take and purchase
from Pioneer, during the Term, the quantities of chlorine and caustic soda as
hereinafter described and at the Prices as hereinafter set forth. In the case
of the Initial Year or, if the expiration or other termination of any National
Account Contract occurs on a date other than the first or last day of a year,
then each relevant quantity commitment shall be prorated, as of any date of
determination, by multiplying the amount
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of such commitment by a fraction the numerator of which shall be the number of
days from such date of determination to (and including) such last day and the
denominator of which shall be 365.
SECTION 2.2 Sales Commitment. Upon the terms and subject to the
conditions set forth in this Agreement, Pioneer agrees to deliver and sell to
OxyChem, during the Term, the quantities of chlorine and caustic soda as
hereinafter described and at the Prices as hereinafter set forth. In the case
of the Initial Year or, if the expiration or other termination of any National
Account Contract occurs on a date other than the first or last day of a year,
then each relevant quantity commitment shall be prorated, as of any date of
determination, by multiplying the amount of such commitment by a fraction the
numerator of which shall be the number of days from such date of determination
to (and including) such last day and the denominator of which shall be 365.
ARTICLE III
QUANTITY
SECTION 3.1 National Account Contracts Requirements.
(a) Subject to the provisions of Sections 3.2 and 3.3, OxyChem shall
take and purchase from Pioneer, and Pioneer shall deliver and sell to OxyChem,
each year during the Term the quantities of chlorine and caustic soda that are
required in order for OxyChem to exercise its rights and to discharge its
obligations to each of the National Accounts pursuant to the provisions of the
National Account Contracts as in effect, and for the term of such National
Account Contract remaining, on the date of this Agreement, and which, but for
the sale of the Tacoma Plant to Pioneer, OxyChem would have supplied directly
from production at the Tacoma Plant (determined consistently with OxyChem's
documented historical manner of discharging its supply obligation in respect of
such National Account Contract).
(b) Subject to the provisions of Sections 3.2 and 3.3, the quantities
of chlorine and caustic soda that OxyChem may also take and purchase from
Pioneer, and that Pioneer may also deliver and sell to OxyChem, shall include,
in addition to the quantities described in paragraph (a) of this Section 3.1,
any additional quantities of chlorine and caustic soda which any National
Account may have an option to call from OxyChem pursuant to the provisions of
the relevant National Account Contract and which, but for the sale of the Tacoma
Plant to Pioneer, OxyChem would have supplied directly from production at the
Tacoma Plant (determined consistently with OxyChem's documented historical
manner of discharging its supply obligation in respect of such National Account
Contract). OxyChem will notify Pioneer of any volumes which will be requested
pursuant to this paragraph (b) not less than fifteen (15) days prior to the
requested date of shipment.
(c) Upon the date specified in Appendix E for each National Account
Contract or the earlier termination of a National Account Contract, Pioneer
shall have no further obligation to supply any amounts of chlorine or caustic
soda to OxyChem attributable to such National
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Account Contract. The dates specified in Appendix E are the current expiration
dates for each National Account Contract listed.
SECTION 3.2 Notification of Annual Requirements.
(a) Not less than one hundred eighty (180) days prior to the end
of each year during the Term (other than the Initial Year), OxyChem shall
submit to Pioneer, in writing, a non-binding forecast of that portion of
OxyChem's requirements for chlorine and caustic soda required pursuant to the
provisions of the National Account Contracts for the following year to be
supplied hereunder. Such forecast shall represent OxyChem's best effort to
accurately predict chlorine and caustic soda sales pursuant to the terms of the
National Account Contracts.
(b) The estimated quantities of chlorine and caustic soda to be
supplied by Pioneer for each of the National Accounts during the Initial Year
are specified in Appendix F to this Agreement. In addition, with respect to
each National Account Contract, Appendix F sets forth the (i) maximum and
minimum volumes, and (ii) volumes subject to be called by OxyChem. OxyChem
agrees that its requirements in any subsequent years shall not exceed one
hundred twenty-five percent (125%) of the volumes of each of the National
Account Contracts for such year, as shown on Appendix F. If in any year during
the term of this Agreement, OxyChem shall require a quantity of chlorine or
caustic soda in excess of the limitations provided for in this paragraph in
order to discharge its obligations under any National Account Contract, OxyChem
shall provide to Pioneer written notice of such excess requirement and, within
the time period specified by OxyChem in such notice, Pioneer may elect to
provide all of such additional quantities to OxyChem pursuant to the provisions
of this Agreement. OxyChem shall provide such notice as soon as commercially
practicable upon learning of such additional requirements, including a
statement of the date (which shall not be less than five (5) days after
Pioneer's receipt of such notice) by which Pioneer must notify OxyChem of its
determination to supply all of such additional quantities or its determination
to forego such additional sales. In the latter case, OxyChem shall have the
right to supply such additional quantities from any other source.
SECTION 3.3 Priority of Obligations to OxyChem. Pioneer's right and
obligation to deliver and sell chlorine and caustic soda to OxyChem pursuant to
the provisions of this Agreement, and OxyChem's right and obligation to take
and pay for chlorine and caustic soda from Pioneer pursuant to the provisions
of this Agreement, shall be subject to allocation by Pioneer in accordance with
Pioneer's customary practice as applied to Pioneer's like customers; provided,
however, that Pioneer's obligation to provide quantities of chlorine and
caustic soda to OxyChem pursuant to the provisions of this Agreement for the
Clorox Company National Account, and OxyChem's right to purchase quantities of
chlorine and caustic soda from Pioneer pursuant to the provisions of this
Agreement for the Clorox Company National Account, shall not be subject to
allocation by Pioneer among its other customers or its own internal
requirements.
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ARTICLE IV
TERM
SECTION 4.1 Term of this Agreement. The term (the "Term") of this
Agreement shall commence, and this Agreement shall become effective, on the
date hereof and shall continue thereafter until the latest date on Appendix E
or, if earlier, the date upon which the last of the National Account Contracts
shall be terminated.
SECTION 4.2 Effect of Modifications of National Account Contracts.
No extension, renewal, revision, modification or amendment of any of the
National Account Contracts shall have the effect of increasing the obligations
of Pioneer under this Agreement.
ARTICLE V
PRICE
SECTION 5.1 Prices of Chlorine and Caustic Soda.
(a) Each calendar quarter during the Term, the price, FOB Tacoma,
of chlorine sold by Pioneer to OxyChem hereunder, expressed in dollars per
short ton, shall be an amount equal to ninety-five percent (95%) of the
weighted average price, net of freight charges paid by OxyChem, at which
OxyChem sells chlorine to the National Accounts pursuant to the National
Account Contracts. The weighted average price calculation for each calendar
quarter will use the prices in effect pursuant to each of the National Account
Contracts during the immediately preceding calendar quarter. Upon the date
specified in Appendix E for each National Account Contract or the earlier
termination of a National Account Contract, the volume and price associated
with such National Account Contract will be excluded from the calculation of
the Price of chlorine.
(b) Each calendar quarter during the Term, the price, FOB Tacoma,
of caustic soda sold by pioneer to OxyChem hereunder, expressed in dollars per
dry short ton, shall be an amount equal to ninety-five percent (95%) of the
weighted average price, net of freight and throughput charges paid by OxyChem,
at which OxyChem sells caustic soda to the National Accounts pursuant to the
National Account Contracts. The weighted average price calculation for each
calendar quarter will use the prices in effect pursuant to each of the National
Account Contracts during the immediately preceding calendar quarter. Upon the
date specified in Appendix E for each National Account Contract or the earlier
termination of a National Account Contract, the volume and price associated with
such National Account Contract will be excluded from the calculation of the
Price of caustic soda.
SECTION 5.2 Notification of the Price; OxyChem's Payment.
(a) Not later than the twentieth (20th) day of the first month of
each calendar quarter during the Term (other than initial calendar quarter),
OxyChem shall provide to Pioneer in writing
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the Prices, calculated as provided in Section 5.1, which will be applicable to
chlorine and caustic soda to be delivered pursuant to the provisions of this
Agreement during such calendar quarter. At all times during the Term, Pioneer
shall take such measures, and implement and utilize such procedures, as will
ensure that access to the Prices applicable to chlorine and caustic soda sold
to OxyChem pursuant to this Agreement(i) will be limited to employees of
Pioneer who have a need to know such information for the purpose of discharging
Pioneer's financial and accounting obligations, and (ii) will not be provided
to (A) any personnel of Pioneer or any of its Affiliates who exercise any
pricing, sales or marketing responsibilities for, or on behalf of, Pioneer or
any such Affiliate, or (B) any director, officer or employee of Pioneer or any
such Affiliates who does not have a need to know such Prices for the purpose of
discharging Pioneer's financial and accounting obligations.
(b) The foregoing obligations of confidence, nondisclosure and non-use
shall not apply to any information that (i) was in the public domain at the
time of disclosure by OxyChem or any of its Affiliates to Pioneer; (ii) enters
the public domain through no fault of Pioneer; (iii) was communicated to
Pioneer by any other Person free of any obligation of confidence; or (iv) was
developed by officers, employees or agents of or consultants to Pioneer
independently of and without reference to the proprietary information of
OxyChem. Information, including, without limitation, the Price of chlorine and
caustic soda sold hereunder, shall not be deemed to be within the public domain,
or communicated free of any obligation of confidence, for purposes of the
provisions of this paragraph simply because it is known by one or more of the
National Accounts in the course of performing the National Account Contracts.
(c) The Price of chlorine which shall be in effect for the initial
calendar quarter, or portion thereof if this Agreement is not effective as of
the first day of the initial calendar quarter, shall be calculated as provided
in Section 5.1, using the prices in effect pursuant to the National Account
Contracts during the calendar quarter immediately preceding the calendar
quarter in which this Agreement shall become effective.
(d) The Price of caustic soda which shall be in effect for the initial
calendar quarter, or portion thereof if this Agreement is not effective as of
the first day of the initial calendar quarter, shall be calculated as provided
in Section 5.1, using the prices in effect pursuant to the National Account
Contracts during the calendar quarter immediately preceding the calendar quarter
in which this Agreement shall become effective.
(e) Pioneer shall invoice OxyChem for each shipment of chlorine and
caustic soda delivered. The prices reflected in the invoice shall be
determined as of the date of shipment and shall be the Prices for chlorine and
caustic soda designated by OxyChem for the then current calendar quarter.
Payment terms for Pioneer's invoice shall be net thirty (30) days from the date
of the applicable invoice with OxyChem to pay interest (not to exceed the
maximum lawful rate) on any amounts past due in accordance with Pioneer's
standard terms and conditions for like customers, a copy of which is attached
as Appendix G to this Agreement. Shipments made in a calendar quarter prior to
OxyChem's notification of Price pursuant to Section 5.2(a) shall be
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invoiced at the price applicable to shipments during the prior calendar
quarter. Within five (5) days after receipt of such notice from OxyChem, Pioneer
shall send a statement to OxyChem reflecting any adjustments to invoices which
are necessary to conform to the Price for the then current quarter. All amounts
due as shown by such statement shall be reflected in Pioneer's invoices for
next succeeding shipments hereunder. In the case of the invoice for the last
month of this Agreement, the obligations of the Parties to make the adjustments
required by the provisions of this paragraph shall survive the expiration or
other termination of this Agreement and such adjustments, if any, to the
invoice for the last month of this Agreement shall be paid by either Party, as
the case may be, within twenty (20) days of the issuance of Pioneer's statement.
SECTION 5.3 Pioneer's Right to Audit. Within sixty (60) days following
any quarterly notification by OxyChem of the Price pursuant to the provisions
of Section 5.2, or otherwise in connection with any question or dispute
concerning (i) any quantities of chlorine or caustic soda to be supplied by
Pioneer pursuant to the provisions of this Agreement, or (ii) any of the terms
of any of the National Account Contracts, and, upon not less than fifteen (15)
days notice in advance by Pioneer, OxyChem shall permit the Oxy Accountant to
have access to and examine OxyChem's books and records sufficient to permit the
verification of the weighted average price calculation in effect during such
calendar quarter, the quantities of chlorine or caustic soda to be supplied by
Pioneer pursuant to the provisions of this Agreement, or the applicable terms
of any such National Account Contract, as the case may be. The Oxy Accountant
shall report to Pioneer its conclusion concerning the accuracy of OxyChem's
calculation of the foregoing items, and, if inaccurate, what the Oxy Accountant
considers to be a correct adjustment. OxyChem shall instruct the Oxy Accountant
not to disclose any additional information to Pioneer. The reasonable cost of
such audit shall be borne by Pioneer, provided, however, that, if any such audit
results in a finding that an adjustment of more than one percent (1%) to the
Price of chlorine or caustic soda or to the quantities of chlorine or caustic
soda to be so supplied by Pioneer is required to comply with the provisions of
this Agreement, then the cost of such audit shall be borne by OxyChem.
ARTICLE VI
DELIVERY
SECTION 6.1 Shipping Instructions.
(a) Fifteen (15) days prior to the first day of each month (other
than the initial month of the Term), OxyChem shall furnish to Pioneer, in
writing, non-binding shipping instructions for each National Account which
shall include an estimate of the quantities of chlorine and caustic soda
required for (including a separate line item for any amounts subject to change
under the relevant National Account Contract), and the delivery point and,
pursuant to Section 6.3, the freight arrangements for shipments from the Tacoma
Plant, or such other shipping point as the Parties may agree, to, each National
Account during each of the next three months. Such instructions and estimates
for the month immediately following such notice shall be considered final
unless revised by OxyChem during the fifteen day period as well as during the
delivery month
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and resulting from changes in the requirements of a National Account permitted
under the terms of the relevant National Account Contract and this Agreement, in
which case such revised quantities shall be final.
(b) The quantifies of chlorine and caustic soda required for, and the
delivery points and, pursuant to Section 6.3, the freight arrangements for
shipments to, each of the National Accounts for the initial month of the Term
are specified in Appendix H to this Agreement.
(c) In connection with shipments to each of the National Accounts,
Pioneer shall comply with the delivery performance standards specified for such
National Account in Appendix I to this Agreement.
SECTION 6.2 Title and Risk of Loss. Title and risk of loss of
chlorine and caustic soda delivered to the National Accounts shall pass from
Pioneer to the relevant National Account as provided in the relevant National
Account Contract.
SECTION 6.3 Transportation Costs. For chlorine and caustic soda
shipped by Pioneer from the Tacoma Plant, or any other shipping point as the
Parties may agree, to the National Account delivery locations, in addition to
the Price for such chlorine and caustic soda, OxyChem shall be responsible for
the actual freight from the shipping point for such chlorine and caustic soda
to the National Account delivery location and any agreed upon throughput cost
incurred in shipping such caustic soda, if any. OxyChem may, at its sole
option, and upon five (5) business days' prior notice, elect (a) to require
Pioneer to ship chlorine or caustic soda on a freight prepaid and collect
basis, or (b) to arrange directly with the provider of transportation services
for the shipment of such chlorine or caustic soda. In the case of clause (a)
above, the freight costs shall be added to Pioneer's invoice for chlorine and
caustic soda and such invoice shall be paid by OxyChem as provided in Section
5.2. In the case of clause (b) above, OxyChem shall be responsible to pay the
applicable transportation charges directly to the transportation service
provider and Pioneer shall have no liability for such costs. Pioneer and
OxyChem shall cooperate in exercising reasonable commercial efforts to reduce
net transportation costs.
SECTION 6.4 OxyChem's Right to Audit Certain Transportation Charges.
Within sixty (60) days following the receipt of any invoice from Pioneer which
includes transportation charges to be reimbursed by OxyChem pursuant to Section
6.3(a), and upon not less than fifteen (15) days' prior notice by OxyChem,
Pioneer shall permit the Pioneer Accountant to have access to and examine
Pioneer's books and records sufficient to permit the verification of the
transportation charges reflected on such invoice. The Pioneer Accountant shall
report to OxyChem its conclusion concerning the accuracy of Pioneer's invoice
in respect of such transportation charges, and, if inaccurate, what the
Accountant considers to be a correct adjustment. Pioneer shall instruct the
Pioneer Accountant not to disclose any additional information to OxyChem. The
reasonable cost of such audit shall be borne by OxyChem, provided, however,
that, if any such audit results in a finding that an adjustment of more than
one percent (1%) to the invoice in
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respect of such transportation charges is required to comply with the
provisions of Section 6.3, then the cost of such audit shall be borne by
Pioneer.
ARTICLE VII
MEASUREMENT
SECTION 7.1 Rail Car Delivery.
(a) If chlorine and caustic soda is delivered in rail tank cars
loaded at the Tacoma Plant, the quantity of chlorine and caustic soda shall be
determined by rail tank car weigh scales or other mutually agreed measuring
device which shall be operated, maintained and regularly calibrated by Pioneer
in accordance with accepted industry practice. Pioneer's weights and measures
shall govern except in case of demonstrated error.
(b) If chlorine and caustic soda is delivered in rail tank cars
loaded by a third party, the quantity of chlorine and caustic soda so delivered
shall be determined by rail tank car weigh scales or other measuring device
employed in connection with the loading of such rail cars in accordance with
accepted industry practice. Third party weights and measures shall govern
except in case of demonstrated error.
SECTION 7.2 Calibration of Measuring Devices.
(a) In respect of any chlorine and caustic soda delivered
hereunder the quantity of which is measured by devices operated by Pioneer,
Pioneer shall give OxyChem at least three (3) days' prior notice of any
calibration test to be performed on any such device, and OxyChem may elect to
have a representative present at any such test. If a level of inaccuracy is
determined by such test at plus or minus one percent (1%) or more of full
scale, Pioneer shall restore the measuring device to a condition of accuracy,
and billings shall be corrected for any shipment(s) known to be affected by
such inaccuracy.
(b) In respect of any chlorine and caustic soda delivered
hereunder the quantity of which is measured by devices operated by a third
party, Pioneer shall exercise reasonable commercial efforts to afford to
OxyChem (i) at least (3) days' prior notice of any calibration test (of which
Pioneer has advance knowledge) to be performed on any such device, and (ii) an
opportunity for OxyChem to have a representative present at any such test. If a
level of inaccuracy is determined by such test at plus or minus one percent
(1%) or more of full scale, Pioneer's billings to OxyChem shall be corrected
for any shipment(s) known to be affected by such inaccuracy.
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ARTICLE VIII
WARRANTIES; LIMITATIONS OF CLAIMS
SECTION 8.1 Pioneer's Warranty. PIONEER'S SOLE AND EXCLUSIVE
WARRANTY IS THAT THE CHLORINE AND CAUSTIC SODA COMPLIES WITH THE PHYSICAL AND
CHEMICAL SPECIFICATIONS SET FORTH IN APPENDIX A AND APPENDIX B TO THIS
AGREEMENT. PIONEER MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
WHETHER WITH RESPECT TO ITS RECOMMENDATIONS, INSTRUCTIONS, PRODUCT APPARATUS,
PROCESS OR OTHERWISE AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, WHETHER
OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
SECTION 8.2 Patents. Pioneer's recommendations or instructions
pursuant to this Agreement are not intended to suggest operations which would
infringe any patents, and Pioneer assumes no liability to OxyChem of any kind
or responsibility for any such infringement pursuant to this Agreement.
SECTION 8.3 Packaging, Uses and Safe Handling. Pioneer shall
properly package and label chlorine and caustic soda for shipment pursuant to
applicable statutes, rules and regulations,
SECTION 8.4 Emergency Response. During the Term of this Agreement,
Pioneer shall maintain and implement emergency response procedures which are in
accordance with the requirements of applicable statutes, rules and regulations
governing the transportation and unloading of chlorine and caustic soda or, if
more stringent, standards representing current prudent industry practice for
the transportation and unloading of chlorine and caustic soda, in order to
respond to (a) a release or threatened release of chlorine or caustic soda
en route to the National Account delivery locations pursuant to this Agreement,
and (b) a release or threatened release of chlorine or caustic soda occurring
during the process of unloading chlorine or caustic soda at the National
Account delivery locations pursuant to this Agreement (other than any delivery
point owned or operated by OxyChem or its Affiliates) and which is attributable
to any defect in the vehicle or vessel used to deliver such chlorine or caustic
soda.
SECTION 8.5 Quality Claims; Liability. OxyChem shall be deemed to
have waived all claims with respect to the quality of any chlorine and caustic
soda sold hereunder for which OxyChem's notice of insufficient quality has not
been given to Pioneer in writing within forty-five (45) days of the receipt of
such chlorine or caustic soda at the National Account delivery location. As to
any claim of any nature with respect to the quality of chlorine or caustic soda
sold under this Agreement, whether in contract, tort, strict liability or
otherwise, the liability of Pioneer and its affiliates shall not exceed the
Price of the portion of the chlorine and caustic soda in respect of which such
claim is made plus any transportation charges thereon paid by OxyChem.
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ARTICLE IX
TAXES
SECTION 9.1 Responsibility for Taxes. In addition to the Price and any
transportation costs OxyChem is required to pay to Pioneer hereunder, OxyChem
shall pay to Pioneer the amount of all governmental taxes, excises, duties,
and/or other charges (including, without limitation, Superfund Assessments, and
excepting (i) taxes (and any interest, additions to tax or penalties imposed in
connection therewith) on or measured by Pioneer's net income, gross receipts,
profits, net worth, shareholder's capital, net taxable capital, net taxable
earned surplus, or asset value, and (ii) any taxes (and any interest, additions
to tax or penalties imposed in connection therewith) imposed on or in respect
of equipment used to produce or transport chlorine or caustic soda) that
Pioneer may be required to pay with respect to the sale or transportation of
the quantities of chlorine and caustic soda sold and delivered hereunder and
which are standard in the industry and generally applicable to other purchasers
of chlorine and caustic soda. Such charges shall be added to Pioneer's invoice
as a separate line item and shall be paid by OxyChem pursuant to Section 5.2,
provided that Pioneer furnishes to OxyChem satisfactory evidence of the amount
and timely payment of any such charges. Pioneer and OxyChem will cooperate so
as to minimize any sales and use taxes imposed by any state or local
governmental authority including, without limitation, the prompt execution and
delivery of any necessary exemption certificates required to reduce or claim
complete exemption from any tax.
ARTICLE X
LIABILITY AND RESPONSIBILITY
SECTION 10.1 Allocation of Liability.
(a) Except to the extent caused by any breach of OxyChem's
obligations hereunder, any act or omission of OxyChem, its agents or
contractors, or any condition, event or action occurring after the time title
and risk of loss passes pursuant to the provisions of Section 6.2 which is
caused by any Person other than Pioneer, Pioneer assumes full responsibility
for any liability arising out of or in connection with chlorine and caustic
soda sold hereunder and compliance or non-compliance with any law or
regulations relating thereto, including, without limitation, laws or
regulations with respect to the protection of health, safety and the
environment, including, but not limited to, liability attributable to any
defect in the vehicle or vessel used to deliver such chlorine or caustic soda.
With respect to matters for which Pioneer is liable under the preceding
sentence, Pioneer shall defend, indemnify and hold harmless OxyChem, its
Affiliates and their respective officers, directors, representatives and
employees from and against all losses, liabilities, damages, costs and expenses
("Losses") made against or incurred by OxyChem, its Affiliates or their
respective officers, directors, representatives and employees arising out of
any claim, suit or proceeding ("Claim") by any governmental agency or any third
party which alleges death, personal or economic injury, or damages to, or
spills or releases on or into, any private or public property, resources or the
environment, to the extent caused or contributed to by chlorine or caustic soda
sold hereunder.
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(b) Except to the extent caused by any breach of Pioneer's
obligations hereunder, any act or omission of Pioneer, its agents or
contractors, or any condition, event or action occurring prior to the time
title and risk of loss passes pursuant to Section 6.2 which is caused by any
Person other than OxyChem, OxyChem assumes full responsibility for any
liability arising out of or in connection with chlorine and caustic soda sold
hereunder and compliance or non-compliance with any law or regulations relating
thereto, including, without limitation, laws or regulations with respect to the
protection of health, safety and the environment, provided, however, that
OxyChem shall have no responsibility for any liability in connection with the
unloading of any chlorine or caustic soda sold hereunder which is attributable
to any defect in the vehicle or vessel used to deliver such chlorine. With
respect to matters for which OxyChem is liable under the preceding sentence,
OxyChem shall defend, indemnify and hold harmless Pioneer, its Affiliates and
their respective officers, directors, representatives and employees from and
against all Losses made against or incurred by Pioneer, its Affiliates or their
respective officers, directors, representatives and employees arising out of
any Claim by any governmental agency or any third party which alleges death,
personal or economic injury, or damages to, or spills or releases on or into,
any private or public property, resources or the environment, to the extent
caused or contributed to by chlorine or caustic soda sold hereunder.
(c) Nether Party shall be liable for claims of the employees,
contractors or agents of the other Party who are subject to workers'
compensation laws. Notwithstanding anything to the contrary herein, neither
Party shall be responsible for protection of the employees, agents or
contractors of the other Party or liable for any failure to provide such
protection, including, without limitation, compliance with occupational safety
laws, except that Pioneer shall comply with safety rules in effect at the
National Account delivery locations of which Pioneer has knowledge.
SECTION 10.2 Procedures for Indemnification.
(a) Promptly (and in any event within thirty (30) days) after a
Party or Parties to be indemnified (whether one or more, the "Indemnified
Party") receives notice of any Claim covered by Section 10.1, the Indemnified
Party shall, if a Claim in respect thereof is to be made pursuant to Section
10.1, notify the Party from whom indemnification is sought (the "Indemnifying
Party") of such Claim; provided, however, that the failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party pursuant to Section 10.1, except to
the extent of any material detriment suffered by the Indemnifying Party as a
result of such failure. The amount of each Claim for indemnity, together with
a list identifying each separate item of Loss to the extent known, shall be set
forth in the Claim notice delivered to the Indemnifying Party. In the event
that a Claim arises out of, or results from, Claims of third parties, the
Indemnifying Party may at its option undertake the defense thereof by counsel
or representatives chosen by it which are reasonably acceptable to the
Indemnified Party. The Indemnifying Party shall have the sole right to
compromise or settle any such Claim if (i) such settlement or disposition shall
impose no material obligation or burden
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whatsoever on the Indemnified Party which is not wholly discharged by the
Indemnifying Party and shall provide a full release to the Indemnified Party,
and (ii) the Indemnifying Party shall be fully capable of performing its
obligations pursuant to such settlement or disposition. Each of the
Indemnifying Party and the Indemnified Party shall be entitled to consult with
each other, to the extent it reasonably requests, in respect of the defense of
such Claim and shall cooperate in the defense of any such Claim, including
making its officers, directors, employees and books and records (other than any
National Account Contract) available for use in defending against such Claim,
and it shall take such commercially reasonable actions within its power which
are necessary to preserve any legal defenses to such matters.
(b) If the Indemnifying Party, within a reasonable time after
notice of any third party Claim, fails to undertake the defense of such Claim,
the Indemnified Party will, by notice to the Indemnifying Party of its intent to
do so, have the right to undertake the defense of such Claim with counsel or
representatives chosen by it which are reasonably acceptable to the
Indemnifying Party. The Losses of the Indemnified Party shall include the
reasonable costs and expenses incurred in any such defense of a third party's
Claim. Notwithstanding the foregoing, the Indemnified Party shall have no right
to settle or to compromise any such Claim without the prior written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld.
ARTICLE XI
EXCUSE OF PERFORMANCE
SECTION 11.1 Excuse of Performance.
(a) Performance of any obligation under this Agreement may be
suspended by either Party without liability, to the extent that: an Act of God;
war; riot; fire; explosion; accident; flood; sabotage; mechanical breakdown;
involuntary plant shutdown; governmental laws, regulations or orders; or any
other cause (except financial) beyond the reasonable control of such Party,
including, without limitation, any refusal or inability of any National Account
to perform its obligations under any National Account Contract; or any labor
trouble, strike, walkout, lockout or injunction (whether or not such labor
event is within the reasonable control of such Party), delays, prevents,
restricts, or limits the performance of, this Agreement or the consumption,
sale or use of chlorine and caustic soda. The affected Party may invoke this
provision by promptly notifying the other party in writing of the nature and
estimated duration of the suspension period and shall exercise all reasonable
diligence in curing such condition.
(b) In the event that either Party exercises its right to suspend
performance hereunder, the Term of this Agreement and the obligations of the
Parties to purchase and sell chlorine and caustic soda hereunder allocable to
such period that performance is suspended shall be extended, to the extent
consistent with the National Account Contracts, one day for each day of such
suspension provided that the suspension shall not exceed 30 days. In the event
that such suspension is greater than 30 days but less than 180 days, this
Agreement shall remain in effect with the obligations of the Parties to
purchase and sell chlorine or caustic soda hereunder
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suspended and the amount of chlorine and caustic soda which otherwise would have
been delivered during the period of suspension deducted from the obligations
contained herein to purchase and sell. If any suspension lasts more than 180
days, either Party may terminate this Agreement by providing the other Party
written notice of its intent to terminate.
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 Default and Remedies.
(a) In the event that: (i) OxyChem shall fail to pay any invoice in
accordance with the terms of this Agreement, or (ii) any Party shall fail, in
any material respect, in the due performance or observance by it of any of the
terms, covenants or agreements contained in this Agreement, or (iii) any Party
shall become or be adjudicated insolvent, bankrupt, or if a receiver or trustee
shall be appointed for any Party or its property or a petition for
reorganization or arrangement under any bankruptcy or insolvency law shall be
approved, or an assignment shall be made for the benefit of creditors of any
Party, or any Party shall file a voluntary petition of bankruptcy or shall
consent to the appointment of a receiver or trustee, this Agreement shall, in
the case of a default under clause (iii), immediately terminate, and in the
case of a default under clause (i) or (ii), the non-defaulting Party shall have
the right, at its sole discretion, to terminate this Agreement if the
defaulting Party shall have failed to (A) cure the default within twenty (20)
days of written notice of default, or (B) except in the case of a default
under clause (i), diligently pursue the curing of the default, which
termination remedy shall be in addition to all of its remedies at law or in
equity, including, without limitation, those set forth in Section 12.1(c) to
recover damages by reason of such default. In the event of any such
termination, all sums owing or to become due and owing by any Party under this
Agreement shall become and be immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by the Parties.
(b) In the event that, with respect to any National Account
Contract, Pioneer shall fail, in any material respect, in the due performance
or observance by it of the performance standards specified in Section 6.1(c),
in addition to the remedies provided for in clause (a) above, OxyChem may, upon
notice to Pioneer and failure by Pioneer within thirty (30) days following such
notice to correct any deficiency or if the matter is not such that it can be
corrected in such period, to commence and diligently pursue thereafter steps
necessary to correct any deficiency as promptly as possible, remove such
National Account Contract from this Agreement, and, upon any such removal, such
National Account Contract shall no longer be a National Account Contract
subject to the provisions of this Agreement.
(c) The Parties agree that the convenants and obligations contained
in this Agreement relate to special, unique and extraordinary matters and that
a violation of any of the terms hereof would cause irreparable injury in an
amount which would be difficult or impossible to estimate or determine and for
which any remedy at law would be inadequate. As such, the parties agree that,
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if either Party fails or refuses to fulfill any of its obligations under this
Agreement or to make any payment hereunder, then the other Party shall have the
remedy of specific performance, which remedy shall be cumulative and
nonexclusive and shall be in addition to any other rights and remedies
otherwise available at law or in equity and to which such Party might be
entitled.
SECTION 12.2 Certain Damages Excluded. In no event shall either Party
to this Agreement, or its Affiliates, have any liability to the other Party, or
its Affiliates, for any (i) loss of business opportunities or for speculative
or prospective profits, or (ii) special, indirect, consequential, incidental
or punitive damages, provided, however, that in the event of any breach or
failure by OxyChem to take and purchase the quantities of chlorine and caustic
soda provided for hereunder, Pioneer shall be entitled to recover the
difference, if any, between amounts realized from any sale in mitigation of
damages resulting from such breach or failure in performance by OxyChem and the
amount that would have been realized by Pioneer but for such breach or failure
in performance by OxyChem, plus freight costs and throughput charges, if any,
actually incurred by Pioneer and which otherwise would have been payable by
OxyChem pursuant to the provisions of this Agreement.
SECTION 12.3 Duty to Mitigate. Each Party shall take all such
reasonable actions as may be necessary to mitigate damages for which such Party
may claim damages or indemnification under this Agreement, provided, however,
that in no event shall Pioneer be obligated to sell and deliver chlorine or
caustic soda committed for but not taken and purchased by OxyChem to other than
delivery points east of the Rocky Mountains.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, by operation of
law or otherwise (other than as a result of any merger or consolidation), by
any Party without the prior express written consent of the other Party;
provided, however, that, notwithstanding the foregoing, (i), in connection with
the sale of the Tacoma Plant as a whole, or any sale of the properties and
assets of any Party substantially as an entirety, to any Person, the Party
making such sale may assign this Agreement, or its rights hereunder, to such
Person, (ii) any Party may assign this Agreement, or its rights hereunder, to
any Affiliate of such Party, and (iii) Pioneer shall have the right to
collaterally assign its rights under this Agreement to any bank, financial
institution or other lender (or any such entity acting as an indenture trustee
on behalf of any Person) that provides financing in connection with (x) the
transactions contemplated by the Asset Purchase Agreement or any Related
Agreement (including any renewal, extension or rearrangement of such financing)
or (y) working capital financing for Facility Operations, provided, however,
that no such collateral assignment shall release, discharge or otherwise excuse
Pioneer from the performance of its obligations under this Agreement; provided,
further, that (A), in the case of any assignment referred to in clause (i) or
(ii) of this Section 13.1, prior to any such
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assignment, the Person to which such assignment shall be made shall expressly
assume, by an instrument in writing reasonably satisfactory to OxyChem or
Pioneer, as the case may be, executed and delivered to OxyChem or Pioneer, as
the case may be, the performance and observance of every obligation, covenant
and agreement in this Agreement on the part of the Party making such assignment
to be performed or observed, and (B) no such assignment shall have the effect
of releasing such Party or any other Person (including any such additional
Party) from its obligations, covenants or agreements under this Agreement.
SECTION 13.2 Entire Agreement; Amendment. This Agreement constitutes
the entire agreement of the Parties with respect to the subject matter hereof
and supersedes all prior understandings and agreements with respect thereto.
This Agreement may be amended, and any provision hereof waived, but only in
writing signed by the Party against whom such amendment or waiver is sought to
be enforced. No waiver by any Party of any default, misrepresentation or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by
virtue of any such occurrence. Neither the failure nor any delay by any Party in
exercising any right, power or privilege under this Agreement will operate as a
waiver of such right, power or privilege, and no single or partial exercise of
any such right, power or privilege will preclude any further or other exercise
of such right, power or privilege or the exercise of any other right, power or
privilege.
SECTION 13.3 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Sate of Washington, without
regard to principles of conflict of laws. The execution and delivery of this
Agreement shall be deemed to be the transaction of business within the State of
Washington for purposes of conferring jurisdiction upon courts located within
the State of Washington. The Parties agree that any court proceedings arising
out of this Agreement may be brought in the federal or state courts in the
State of Washington, and both Parties consent to the jurisdiction of such
courts. Each Party irrevocably waives (a) any objection which such Party may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of, or relating to, this Agreement brought in any such court, (b)
any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum, and (c) the right to object, with
respect to any such claim, suit, action or proceeding brought in any such
court, that such court does not have jurisdiction over such Party. In addition,
any such suit, action or proceeding may be brought in any court having
jurisdiction pursuant to applicable law.
SECTION 13.4 Notices. Any notice or communication required or permitted
to be given pursuant to this Agreement shall be writing and sent by (i)
personal delivery (including courier service), (ii) telecopier to the number
indicated below, or (iii) first class or registered or certified mail, postage
prepaid and addressed as follows (any such notice or communication being deemed
given upon receipt).
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If to OxyChem for matters concerning caustic soda:
Occidental Chemical Corporation
5005 LBJ Freeway
Dallas, Texas 75244
Attention: Vice President - Caustic Soda
Telephone: 972-404-3820
Facsimile: 972-404-
If to OxyChem for matters concerning chlorine:
Occidental Chemical Corporation
5005 LBJ Freeway
Dallas, Texas 75244
Attention: Vice President - Chlorine
Telephone: 972-404-4195
Facsimile: 972-404-3406
If to Pioneer for matters concerning caustic soda or chlorine:
Pioneer Chlor Alkali Company, Inc.
700 Louisiana Street, Suite 4200
Houston, Texas 77002
Attention: Vice President - Sales and Marketing
Telephone: (713) 225-3831
Facsimile: (713) 225-4426
If to Pioneer for matters concerning other matters hereunder:
Pioneer Companies, Inc.
700 Louisiana Street, Suite 4200
Houston, Texas 77002
Attention: Vice President and General Counsel
Telephone: (713) 225-3831
Facsimile: (713) 225-9202
SECTION 13.5 Competition; Access to National Account Contracts.
Nothing set forth in this Agreement shall prevent either Party or any of its
Affiliates from competing with the other Party or any of its Affiliates in the
sale of chlorine or caustic soda to any of the National Accounts or to any
other Person. Except as specifically set forth in this Agreement, OxyChem
shall under no circumstance be obligated to deliver to Pioneer or any of its
Affiliates, or to disclose to Pioneer or any such Affiliate, any of the
provisions of any of the National Account Contracts.
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SECTION 13.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any jurisdiction.
SECTION 13.7 Headings. The Table of Contents set forth in, and the
descriptive headings of the several Articles and Sections of, this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
SECTION 13.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which when so executed shall be deemed an original,
but all of which together shall constitute one and the same instrument.
SECTION 13.9 Construction. The Parties have participated jointly in
the negotiation and drafting of this Agreement. In the event that any
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the Parties, and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Personal pronouns, when
used in this Agreement, whether in the masculine, feminine or neutral gender,
shall include all other genders, and the singular shall include the plural and
vice versa.
SECTION 13.10 Third Party Beneficiaries. NOTHING EXPRESSED OR
IMPLIED IN THIS AGREEMENT IS INTENDED, OR SHALL BE CONSTRUED, TO CONFER UPON OR
GIVE ANY PERSON OTHER THAN THE PARTIES HERETO AND THEIR SUCCESSORS AND
PERMITTED ASSIGNEES, ANY RIGHTS, REMEDIES OR OBLIGATIONS UNDER, OR BY REASON
OF, THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
SECTION 13.11 Payments. Any payments by, or on behalf of, the
Parties pursuant to any provisions of this Agreement shall be made by wire
transfer of immediately available funds to a bank account of the Party
receiving such payment at the bank used by such Party and each Party hereto
shall furnish to the other the name of its bank and the number of the account
thereat to which payments shall be directed.
SECTION 13.12 Incorporation of Appendices. The Appendices
identified in this Agreement are incorporated herein by reference and made a
part hereof.
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IN WITNESS WHEREOF, the Parties have, by their duly authorized
representatives, signed this Chlorine and Caustic Soda Sales Agreement as of
the day and year first above written.
PIONEER CHLOR ALKALI COMPANY, INC.
By: /s/ PHILIP J. ABLOVE
--------------------------------
Name: Philip J. Ablove
Title: Vice President and Chief Financial Officer
OCCIDENTAL CHEMICAL CORPORATION
By: /s/ CHARLES L. MEARS
--------------------------------
Name: Charles L. Mears
Title: Executive Vice President
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