Exhibit 10.4
STORAGE AND THRUPUT AGREEMENT
This Storage and Thruput Agreement ("AGREEMENT") is made effective
the 1st day of November, 2006 (the "EFFECTIVE DATE") between Center Point
Terminal Company, a Delaware corporation ("TERMINAL"), and FutureFuel
Chemical Company, a Delaware corporation formerly known as Eastman SE, Inc.
("CUSTOMER").
RECITALS
A. Terminal is the owner of storage facilities located at Little
Rock, Arkansas, Memphis, Tennessee and Port Allen, Louisiana (each a
"TERMINAL FACILITY" and collectively the "TERMINAL FACILITIES").
B. Customer and Terminal desire to enter into this Agreement to
provide for the storage and handling of biodiesel (the "PRODUCT") at the
Terminal Facilities.
AGREEMENT
In consideration of the foregoing, the mutual covenants herein
contained and other good and valuable consideration (the receipt, adequacy
and sufficiency of which are hereby acknowledged by the parties by their
execution hereof), the parties agree as follows.
1. FACILITY. Terminal agrees to provide a safe area for the purpose of
loading or unloading storage tanks at the Terminal Facilities ("TANKS")
suitable for storage of biodiesel, biodiesel/petrodiesel blends, palm oil,
methanol and other biodiesel feedstocks ("PRODUCTS") in Terminal's
above-ground tankage at the Terminal Facilities. Terminal and Customer will
determine from time to time in accordance with Exhibit A the amount of
storage capacity required by Customer at each Terminal and the allocation of
such Tanks to Customer's Products, provided that the total capacity will not
exceed 250,000 barrels. Terminal further agrees to provide all suitable
terminal and related facilities required to safely perform all operations
contemplated to be performed by Terminal herein. All such facilities are to
be maintained in good working order by Terminal at its own cost and expense
at all times during the term of this Agreement.
2. OPERATIONS. Customer will deliver its Products to the Terminal Facilities
in bulk by tanker truck or barge or, in the case of the Port Allen Terminal
Facility, ship. Terminal will, in compliance with all applicable state,
federal and local laws and regulations, receive, store, handle and reship
such Products in accordance with Customer's reasonable requirements
submitted to Terminal by Customer in writing, and will tender such Products
to carriers for shipment as directed by Customer in writing. The receipt,
formulating, storage, handling, reshipment and related operations
contemplated hereunder will be conducted by or on behalf of Terminal in
accordance with generally accepted terminalling practices. Receipts will be
issued by Terminal to Customer for all Products delivered to Terminal by or
for Customer. All marine movements will be verified by a suitable
Independent Inspection Agency selected by Terminal and reasonably
satisfactory to Customer; the cost of such Agency will be borne by Customer.
3. TERM. The term of this Agreement runs for a period of two years
commencing with the Effective Date and expiring on October 31, 2008 (the
"INITIAL TERM"). This Agreement automatically renews itself after the end of
the Initial Term for successive one-year periods (the "RENEWAL TERMS")
unless either party hereto notifies the other party hereto in writing at
least 90 days prior to expiration of the Initial Term or the then current
Renewal Term, as applicable, of its intent to cancel this Agreement, in
which event this Agreement terminates at the end of the Initial Term or such
Renewal Term, as applicable.
4. CHARGES. In consideration of the Tanks, other facilities and services to
be provided by Terminal to Customer hereunder, Customer agrees to pay
Terminal: (i) a monthly fee equal to $0.35 of shell capacity available for
Product thruput at each Terminal each month as determined in accordance with
Exhibit A; and (ii) fees for heating as generally charged by Terminal at
each of the Facilities; and (iii) fees for such other services as are
provided by Terminal to Customer and customarily charged to Terminal's other
customers at the Terminal Facilities.
5. TITLE. Title to all Products delivered by or for Customer to Terminal
remains in Customer's name.
6. INDEPENDENT CONTRACTOR. It is understood and agreed by the parties hereto
that Terminal, in performing the services hereunder, is acting as an
independent contractor and not as an agent of Customer.
7. INDEMNIFICATION.
7.1. BY TERMINAL. Subject to Sections 7.3, 8, 9 and 11, and except as
otherwise provided in Section 12, Terminal hereby unconditionally,
irrevocably and absolutely agrees to protect, defend, indemnify and hold
harmless Customer and Customer's past, present and future officers,
directors, employees, agents, attorneys and representatives, and each of the
foregoing's successors and assigns (collectively the "CUSTOMER
INDEMNITEES"), from any and all manner of actions, suits, debts, sums of
money, interest owed, accounts, controversies, agreements, guaranties,
promises, undertakings, charges, damages, judgments, executions, obligations
and reasonably incurred costs, expenses and fees (including reasonable
attorneys' fees and court costs), counterclaims, claims, demands, causes of
action, liabilities, losses and amounts paid in settlement (collectively
"ADVERSE CONSEQUENCES") incurred, paid or sustained by any of the Customer
Indemnitees, in each case in connection with, arising out of, based upon,
relating to or otherwise involving the negligent or willful acts or
omissions on the part of Terminal, its employees, agents or contractors in
the performance of this Agreement.
7.2. BY CUSTOMER. Subject to Sections 7.3, 9 and 11, and except as
otherwise provided in Section 12, Customer hereby unconditionally,
irrevocably and absolutely agrees to protect, defend, indemnify and hold
harmless Terminal and Terminal's past, present and future officers,
directors, employees, agents, attorneys and representatives, and each of the
foregoing's successors and assigns (collectively the "TERMINAL
INDEMNITEES"), from any and all Adverse Consequences incurred, paid or
sustained by any of the Terminal Indemnitees, in each case in connection
with, arising out of, based upon, relating to or otherwise involving: (i)
the negligent or willful acts or omissions on the part of Customer, its
employees, agents, or contractors (including any contractors transporting
Products to or from a Terminal Facility unless under the employ or under
contract to Terminal) in the performance of this Agreement; and (ii) the
receipt, formulating, storage, handling or reshipment of Customer's Products
pursuant to this Agreement.
7.3. CONCURRENT FAULT. In the event that any Adverse Consequences are
caused in whole or in part by the concurrent negligent or willful acts or
omissions of Terminal, its employees, agents or contractors, on the one
hand, and Customer, its employees, agents or contractors, on the other hand,
then the obligation of the parties to indemnify under this Section 7 will be
comparative and each party will indemnify the other to the extent that such
party's act or omission (or the acts or omissions of such party's employees,
agents or contractors) was the cause of such injury, damage or death.
7.4. CONTROL OF CLAIM. If any such action, suit or proceeding is
commenced against, or any such claim, demand or amount is assessed against,
any person in respect of which such person proposes to demand
indemnification hereunder (the "INDEMNITEE"), the person from whom the
Indemnitee is seeking indemnification hereunder (the "INDEMNITOR") is to be
notified to that effect with reasonable promptness.
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The Indemnitee is to control the defense of any such action, and may employ
counsel in defense thereof, all at Indemnitor's expense, unless and until
Indemnitor satisfies or otherwise settles such action and obtains a release
of the Indemnitee from the third party bringing such action, in a form
acceptable to the Indemnitee and his counsel.
8. LIMITATION ON LIABILITY. If loss or damage to any of Customer's Products
arises from any cause (including improper loading and unloading of
Customer's Products or actions not conforming to Customer's orders on the
part of Terminal, its employees, agents, or contractors), Terminal will not
be liable to Customer for more than the actual cost to Customer of any lost
or damaged Product, less salvage value. Terminal will not be responsible for
Adverse Consequences resulting from the loss or destruction of any of
Customer's Products except and to the extent that such loss or destruction
is caused by the negligence of Terminal, its employees, agents or invitees
(other than Customer or Customer's employees, agents or invitees). Terminal
will not be responsible for chemical deterioration of any of Customer's
Products resulting from the ordinary storage of Customer's Products at a
Terminal Facility. Terminal will have no liability to a Customer Indemnitee
unless a written claim is delivered to Terminal by the Customer Indemnitee
within four months after Terminal reports the alleged loss to the Customer
or the Customer discovers the alleged loss, whichever is earlier. Customer
may not make any deductions from any invoice presented by Terminal pending
the resolution of any claim. EXCEPT AS EXPRESSLY HEREIN PROVIDED, THERE ARE
NO GUARANTEES OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER
ARISING BY OPERATION OF LAW OR OTHERWISE. Notwithstanding anything to the
contrary contained in this Agreement, Terminal will not have liability for
any reason whatsoever to Customer for evaporation, shrinkage or other loss
of Product in an amount equal to or less than .5% (one-half of one percent)
of the average volume of Customer's Products stored at the Terminal
Facilities for the relevant period of time.
9. INSURANCE.
9.1. TERMINAL. Terminal agrees to provide and carry (or cause to be
provided and carried) the following insurance during the term of this
Agreement, at its expense and in forms and with insurance companies
reasonably acceptable to Customer:
(i) Statutory Workmen's Compensation and Employer's Liability
Insurance with a minimum limit of the greater of $1,000,000
per occurrence or the applicable amount required by state or
federal laws;
(ii) Comprehensive General Liability Insurance as follows:
(a) Bodily Injury Liability in an amount of not less than
$1,000,000 for injuries, including death, to any one
person in any one occurrence, and in an amount of not less
than $2,000,000.00 covering injuries, including death, to
more than one person in any one occurrence; and
(b) Property Damage Liability in an amount of not less than
$1,000,000 covering damage to or destruction of property
in any one occurrence; and
(iii) Fire and Extended Coverage to cover replacement value of the
Terminal Facilities.
Terminal has no obligation under this Agreement to insure Customer's Product
and property or property of others.
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9.2. CUSTOMER. Customer agrees to provide and carry (or cause to be
provided and carried) the following insurance during the term of this
Agreement (for itself and its subcontractors and third party carriers), at
its expense and in forms and with insurance companies reasonably acceptable
to Terminal:
(i) Statutory Workmen's Compensation and Employer's Liability
Insurance with a minimum limit of the greater of $1,000,000
per occurrence or the applicable amount required by state or
federal laws;
(ii) Comprehensive General Liability Insurance as follows:
(a) Bodily Injury Liability in an amount of not less than
$1,000,000 for injuries, including death, to any one
person in any one occurrence, and in an amount of not less
than $2,000,000.00 covering injuries, including death, to
more than one person in any one occurrence; and
(b) Property Damage Liability in an amount of not less than
$1,000,000 covering damage to or destruction of property
in any one occurrence; and
(iii) Comprehensive Automobile Liability Insurance with liability
limits of $2,000,000 per occurrence for bodily injury and
property damage.
The Commercial/Comprehensive General Liability insurance coverage required
to be carried by or on behalf of Customer must include Terminal as an
additional insured as its interest may appear. Other insurance, if desired
by Customer or Customer's contractors, must be carried by Customer or its
contractors at their own expense. If Customer carries any insurance on
Customer's Product or Customer's property, Customer must cause its insurance
carrier to endorse the policies to waive subrogation against Terminal. If
Customer is self-insured for losses to Customer's Product or Customer's
property, Customer hereby waives subrogation against Terminal. Copies of any
and all of the foregoing insurance policies and endorsements must be
furnished to Terminal upon request.
10. DEFAULT. If a party (the "DEFAULTING PARTY") fails to perform any of the
covenants or obligations of performance or payment imposed upon it under and
by virtue of this Agreement (except where such failure is excused under
other applicable provisions hereof), then in such event the other party (the
"NON-DEFAULTING PARTY") must give the Defaulting Party written notice
thereof, stating specifically the cause for which such notice of default is
given. The Non-Defaulting Party may cancel this Agreement (by written notice
to the Defaulting Party) without any further obligation and has the right to
collect any amount due it hereunder for any Adverse Consequences suffered by
it if: (i) the Defaulting Party fails to make payment within ten days after
receipt of notice of default in payment for charges; or (ii) within a period
of 30 days after receipt of notice of any other default hereunder the
Defaulting Party does not commence with diligence to remove and remedy the
default, fully indemnify the Non-Defaulting Party from any and all Adverse
Consequences resulting from such default and thereafter pursue and complete
removal of such default with diligence.
11. FORCE MAJEURE.
11.1. EFFECT OF FORCE MAJEURE. If either party is rendered unable by force
majeure to perform or comply fully or in part with any obligation or
condition of the Agreement (other than the payment of money), the affected
party must give written notice to the other party of such force majeure
event within 48 hours after receiving notice of the occurrence of force
majeure event relied upon. In such event, both parties will be relieved of
liability and will suffer no prejudice for failure to perform their
obligations hereunder during such period, except for the obligations to make
payment of any and all charges for services provided pursuant to this
Agreement prior to the occurrence of such force majeure event (and any
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indemnification obligations hereunder). In addition, Terminal will have the
right to curtail storage space or allocate its supply of storage in a manner
which, in its sole discretion, is fair and reasonable in the circumstances,
and will not be obligated to obtain or purchase other storage space for
Customer and Customer will not hold Terminal responsible in any manner for
any losses or damages which Customer may claim as a result of any such
failure, curtailment or allocation by Terminal. Terminal will not be
required to make up any storage space not available as a result of any force
majeure event. In the event that the period of suspension under this Section
11.1 continues in excess of 30 calendar days, this Agreement may be canceled
with respect to the applicable Terminal Facility at the option of either
party, without liability of either party.
11.2. DEFINITION. As used herein, the term "force majeure" includes, by
way of example and not in limitation, fire, acts of god, adverse weather,
navigational accidents, vessel damage or loss, accidents at or closing of a
navigational or transportation mechanism, strikes, grievances or actions by
or among workers, lock-outs or other labor disturbances, explosions or
accidents to wells, pipelines, storage depots, refinery facilities,
machinery and other facilities, actions of any government or by any person
purporting to represent a government, shortage, interruption or curtailment
of crude oil, acts of terrorists or other causes not reasonably within the
control of the affected party and which such party by the exercise of
reasonable diligence could not have prevented or overcome.
12. ENVIRONMENTAL MATTERS. In the event of any Product spill, discharge or
other casualty resulting in or having the potential to cause environmental
pollution in connection with the performance of this Agreement, Terminal
immediately may commence containment or clean-up operations as deemed
appropriate or necessary by Terminal or as required by any governmental
authority. Terminal will notify Customer immediately of the event and those
operations. Terminal will take commercially reasonable steps to keep
Customer advised of such plans and activities. Customer will have the right
to participate in the decisions and remedial activities being taken and, if
appropriate, promptly send response personnel to the site. If remedial
activities are required and the responsible party has not been identified,
the responsibilities for prompt payments for the remedial activities being
incurred, as well as initial response costs incurred by Terminal and
Customer will be shared equally between Customer and Terminal. The ultimate
apportionment between Customer and Terminal of all costs and other damages
occasioned by the occurrence will be determined in the following manner.
(i) If the occurrence was caused by the negligence of Terminal, its
agent, employees, contractors or customers, Terminal will
indemnify and hold Customer harmless as set forth in Section 7.1.
(ii) If the occurrence was caused by the negligence of Customer, its
agents, contractors, customers (including vessels tendered by
Customer and its customers), Customer will indemnify and hold
Terminal harmless as set forth in Section 7.2.
(iii) If the occurrence was caused by the negligence of both Terminal
and Customer or the parties associated with them as defined above,
the costs and damages will be shared ratably based upon the
percentage of negligence attributable to each party as set forth
in Section 7.3.
(iv) If the occurrence was caused by a third party either known or
unknown in conjunction with the loading or unloading of Product,
Customer and Terminal will cooperate and will equally share all
costs related to the occurrence and the cost of recovering the
damages from the third party or any available clean-up fund. If
recovery is made, such recovery will be apportioned so as to
equalize each party's share. If partial or no recovery is made,
the loss will be shared equally.
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Terminal maintains capabilities to respond to emergency situations which may
include spill containment booms, oil absorbent material and, if applicable,
a boat at the terminal in readiness at all times. Emergency response teams
are trained from volunteer employees and training is up-dated and reinforced
on a regular basis. Terminal emergency procedures are set forth in
appropriate sections of the following documents: U.S. Coast Guard Dock
Operations Manual, EPA's Spill Prevention Control and Counter Measures Plan;
OSHA's Risk Assessment and Emergency Response Contingency Plan, as well as
the Oil Pollution Act of 1990 Manual for both the U.S. Coast Guard and EPA.
These plans are currently in place and are maintained on an up-to-date
basis. The provisions of this Section 12 are contractual in nature and apply
only within the content of this Agreement. Nothing herein is intended to nor
may be construed as establishing legal liabilities or responsibilities
between Customer or Terminal, on the one hand, and third-party or
governmental agencies, on the other hand.
13. REMOVAL OF PRODUCT. Immediately upon the termination of this Agreement
for any reason, Customer agrees to remove from the Terminal Facilities all
of its Product, supplies, equipment and other materials. Customer may waive
such right as to all or part of same, in which case, if accepted in writing
by Terminal at its sole option, the Product, supplies, equipment and other
materials so waived will become the property of Terminal; provided, however,
that in all cases Customer must clean or cause to be cleaned all the Tanks
and also is liable for and will pay all directly-related disposal costs. If
waste is generated on the Terminal Facility's premises as a result of the
Product's removal, Customer required flushings or transfer into pipeline,
then Terminal and Customer must mutually agree on an environmentally sound
method of disposal of waste in accordance with all applicable laws and
regulations. If the parties fail to agree to an environmentally sound method
for disposal of such waste within ten days following a proposal by Terminal,
then Terminal has the right to direct and carry out the disposal of such
waste in accordance with applicable laws and regulation, in its name or in
the name of Customer, all at Customer's sole cost and expense. Customer
agrees to pay the cost of such removal and disposal, including such costs or
charges as Terminal may be required to pay in regard to such waste,
including the cost of preparing and processing any documents in connection
therewith.
14. REGULATORY COMPLIANCE. Terminal agrees to notify (the "COMPLIANCE
NOTICE") Customer if, in order to comply with applicable laws or
governmental regulations or in order to prevent, reduce, control or monitor
any emission or discharge into the environment of any nature whatsoever, any
governmental or regulatory body initiates a requirement subsequent to the
Effective Date which causes Terminal to: (i) incur additional expense; (ii)
effect changes in the operation of a Terminal Facility; (iii) make any
addition to the improvements on a Terminal Facility; or (iv) change
Terminal's normal methods of operation. Such Compliance Notice must include
Terminal's estimate of Customer's share of the additional expense and of the
additional expense of making such changes or additions (the "COMPLIANCE
EXPENSE"). The estimate of Compliance Expense may only include Terminal's
estimate of the actual or pro-rata incremental cost of such additional
expense, change or additions (including engineering and overhead expense and
subsequent direct changes or additions attributable to the presence of
Customer at the Terminal Facility). On or before 30 days following delivery
of the Compliance Notice, Customer and Terminal agree to negotiate in good
faith to reach an agreement as to the amount and terms of payment of the
agreed-to amount of the Compliance Expense to be paid by Customer to
Terminal. The terms of payment must reasonably compensate Terminal for
financing the agreed-to amount of Compliance Expense in the event that the
terms of payment do not provide for Customer's complete and immediate
reimbursement of Terminal's actual cash expenditures. In the event Terminal
and Customer are unable to agree upon Customer's share of the Compliance
Expense, either party has the right to terminate this Agreement within 180
days of Terminal's delivery of the Compliance Notice to Customer.
15. AMENDMENT AND MODIFICATION. No amendment, modification, supplement,
termination, consent or waiver of any provision of this Agreement, nor
consent to any departure therefrom, will in any event be effective unless
the same is in writing and is signed by the party against whom enforcement
of the same is
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sought. Any waiver of any provision of this Agreement and any consent to any
departure from the terms of any provision of this Agreement is to be
effective only in the specific instance and for the specific purpose for
which given.
16. ASSIGNMENTS. Customer may not assign or transfer any of its rights or
obligations under this Agreement to any other person without the prior
written consent of Terminal, which consent may not be unreasonably withheld,
delayed or conditioned. Notwithstanding the preceding sentence, Customer may
without the prior consent of Terminal assign its rights under this Agreement
to: (i) any affiliate of Customer, but no such assignment relieves Customer
of any of its obligations under this Agreement; and (ii) an assignee who
acquires all or substantially all of Customer's assets (including by way of
a merger), but in the case of this clause (ii), Customer must give Terminal
prior written notice of such transfer and Terminal may, if it is not
satisfied with such transferee in its sole discretion, terminate this
Agreement within 30 days of receipt of notice of such transfer.
17. CAPTIONS. Captions contained in this Agreement have been inserted herein
only as a matter of convenience and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision hereof.
18. CONFIDENTIALITY. Customer has confidential information, know-how and
technical data concerning formulae and methods of manufacturing the Products
handled hereunder, and mixtures thereof (collectively the "CONFIDENTIAL
INFORMATION"). Customer may from time to time make such Confidential
Information available to Terminal. Terminal agrees to maintain any
Confidential Information that it may receive from Customer confidential and
will not disclose such information to any person without the prior written
consent of Customer. However, Terminal may disclose such Confidential
Information: (i) to legal counsel of Terminal; (ii) to other professional
advisors of Terminal (but only if they have been informed of the
confidential nature of such Confidential Information and agree in writing to
be bound by the terms of this Section); (iii) to regulatory officials having
jurisdiction over Terminal; and (iv) as required by law or legal process or
in connection with any legal proceeding to which Terminal is a party or is
otherwise subject. In each such event (other than clause (i)), Terminal,
prior to such disclosure, is to inform Customer.
19. CONSTRUCTION. Unless the context of this Agreement clearly requires
otherwise: (i) references to the plural include the singular and vice versa;
(ii) references to any person include such person's successors and assigns
but, if applicable, only if such successors and assigns are permitted by
this Agreement; (iii) references to one gender include all genders; (iv)
"including" is not limiting; (v) "or" has the inclusive meaning represented
by the phrase "and/or"; (vi) the words "hereof", "herein", "hereby",
"hereunder" and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement; (vii) section
and exhibit references are to this Agreement unless otherwise specified;
(viii) reference to any agreement (including this Agreement), document or
instrument means such agreement, document or instrument as amended or
modified and in effect from time to time in accordance with the terms
thereof and, if applicable, the terms hereof; and (ix) general or specific
references to any law mean such law as amended, modified, codified or
reenacted, in whole or in part, and in effect from time to time.
20. COUNTERPART FACSIMILE EXECUTION. For purposes of this Agreement, a
document (or signature page thereto) signed and transmitted by facsimile
machine or telecopier is to be treated as an original document. The
signature of any party thereon, for purposes hereof, is to be considered as
an original signature, and the document transmitted is to be considered to
have the same binding effect as an original signature on an original
document. At the request of any party, any facsimile or telecopy document is
to be re-executed in original form by the parties who executed the facsimile
or telecopy document. No party may raise the use of a facsimile machine or
telecopier or the fact that any signature was transmitted
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through the use of a facsimile or telecopier machine as a defense to the
enforcement of this Agreement or any amendment or other document executed in
compliance with this Section.
21. COUNTERPARTS. This Agreement may be executed by the parties on any
number of separate counterparts, and all such counterparts so executed
constitute one agreement binding on all the parties notwithstanding that all
the parties are not signatories to the same counterpart.
22. FAILURE OR DELAY. No failure on the part of any party to exercise, and
no delay in exercising, any right, power or privilege hereunder operates as
a waiver thereof; nor does any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof,
or the exercise of any other right, power or privilege. No notice to or
demand on any party in any case entitles such party to any other or further
notice or demand in similar or other circumstances.
23. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder are to be governed by and construed and interpreted in
accordance with the laws of the State of Missouri applicable to contracts
made and to be performed wholly within Missouri, without regard to choice or
conflict of laws rules.
24. LEGAL FEES. Except as otherwise provided herein, all legal and other
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby are to be paid by the party incurring such
costs and expenses. In the event any party brings suit to construe or
enforce the terms hereof, or raises this Agreement as a defense in a suit
brought by another party, the prevailing party is entitled to recover its
attorneys' fees and expenses.
25. NOTICES. All notices, consents, requests, demands and other
communications hereunder are to be in writing, and are deemed to have been
duly given or made: (i) when delivered in person; (ii) three days after
deposited in the United States mail, first class postage prepaid; (iii) in
the case of telegraph or overnight courier services, one business day after
delivery to the telegraph company or overnight courier service with payment
provided for; (iv) in the case of telex or telecopy or fax, when sent,
verification received; or (v) in the case of electronic transmission such as
e-mail, when sent; in each case addressed as follows:
if to Customer:
FutureFuel Chemical Company
2800 Gap Road
State Highway 394 South
Batesville, Arkansas 72501-9680
Attn: President
Fax #: (870) 698-5303
if to Terminal:
Center Point Terminal Company
8235 Forsyth Blvd., Suite 400
St. Louis, Missouri 63105
Attn: President
Fax #: (314) 854-8539
or to such other address as any party may designate by notice to the other
party in accordance with the terms of this Section.
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26. REMEDIES CUMULATIVE. Each and every right granted hereunder and the
remedies provided for under this Agreement are cumulative and are not
exclusive of any remedies or rights that may be available to any party at
law, in equity or otherwise.
27. SEVERABILITY. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction is, as to such
jurisdiction, ineffective to the extent of any such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof, or affecting the validity, enforceability or legality of
such provision in any other jurisdiction, unless the ineffectiveness of such
provision would result in such a material change as to cause completion of
the transactions contemplated hereby to be unreasonable.
28. SUCCESSORS AND ASSIGNS. All provisions of this Agreement are binding
upon, inure to the benefit of and are enforceable by or against the parties
and their respective permitted successors and assigns.
29. THIRD-PARTY BENEFICIARY. This Agreement is solely for the benefit of the
parties and their respective successors and permitted assigns, and no other
person has any right, benefit, priority or interest under or because of the
existence of this Agreement.
CENTER POINT TERMINAL COMPANY
By: /s/ Christopher J. Schmidt
-------------------------------------------------
Christopher J. Schmidt, Assistant Secretary
FUTUREFUEL CHEMICAL COMPANY
By: /s/ Randall W. Powell 10/30/06
----------------------------------------
Randal W. Powell, President
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EXHIBIT A
STORAGE CAPACITY
Terminal will initially provide to Customer a 45,000 barrel tank at the
Little Rocker Terminal Facility and the initial fee will be based upon
45,000 barrels of shell capacity availability.
From time to time, Terminal and Customer may agree on additional tanks to be
allocated to Customer at each of the Terminal Facilities, in which case the
monthly fee will be adjusted to include such additional tanks.