SUPPLY AGREEMENT
DATED AS OF APRIL 22, 1999
AMONG
IMC KALIUM LTD.,
IMC-AGRICO COMPANY
AND
XXXXXXX-XXXXX, INC.
TABLE OF CONTENTS
(not part of the Agreement)
Page No.
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1. Sale and Purchase 1
2. Term 2
3. Price Terms
(a) Procedure for Determination of Price Terms 2
(b) Basis of Determination 3
(c) ** 3
4. Quantity 4
(a) Quantities 4
(b) Purchases in Excess of Requirements 4
(c) Purchase Estimates 4
(d) Purchase and Sale Requirements; Remedies 5
5. Delivery, Title and Risk of Loss 6
(a) Delivery 6
(b) Title and Risk of Loss 6
6. Purchase Orders 6
7. Product Exchanges 6
8. Billing and Payment 7
9. Taxes and Duties 7
10. Specifications/Quality 7
11. Warranties and Disclaimer 7
12. Claims Limited Remedies 7
13. Indemnification 8
(a) Scope of Indemnification by Purchaser 8
(b) Scope of Indemnification by Seller 8
(c) Defense 8
14. Measurements 8
15. Force Majeure 8
16. Breach; Termination 9
(a) Late Payment 9
(b) Termination 10
17. Consent to Jurisdiction; Service of Process 10
18. Miscel1aneous 10
(a) Entire Agreement 10
(b) Non-waiver 10
(c) Counterparts 10
(d) Assignment 11
(e) Severability and Violation of Laws 11
(f) Applicable Law 11
(g) Notices 11
(h) Headings 12
(i) Bankrurpcy/Insolvency 12
(j) Confidentiality 13
(k) Good Faith 13
(l) Setoff 13
(m) Binding Effect 13
(o) Storage and Handling Agreements 13
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** These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
SUPPLY AGREEMENT
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This SUPPLY AGREEMENT ("Agreement") is made and entered into as of April
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22, 1999 among IMC KALIUM LTD., a Delaware corporation ("Kalium"), IMC-AGRICO
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COMPANY, a Delaware partnership ("Agrico"); and together with Kalium the
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"Seller"), and Xxxxxxx-Xxxxx, Inc., a Delaware corporation ("Purchaser")
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(successor in interest to Xxxxxxx-Xxxxx Group, Inc., formerly known as R-C
Delaware Acquisition Inc.).
R E C I T A L
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Pursuant to that certain Stock Purchase Agreement dated January 21, 1999
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(the "Stock Purchase Agreement") between IMC Global Inc., The Vigoro Corporation
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("TVC") and R-C Delaware Acquisition Inc., TVC has agreed to sell, and Purchaser
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has agreed to purchase, the capital stock of three (3) subsidiaries of TVC
engaged in the business of manufacturing or purchasing and selling (through
wholesale and retail channels) crop production inputs and services (the
"Business").
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A G R E E M E N T S
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NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in connection with the closing
of the transactions contemplated by the Stock Purchase Agreement, the parties
hereby agree as follows.
1. Sale and Purchase. During the Term (as defined herein), Seller shall sell and
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Purchaser shall purchase and take delivery of those products identified in
Schedule 1 hereto (individually, a "Product", and collectively, the "Products").
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Purchases and sales shall be made hereunder on the Price Terms (as defined
herein), in the quantities and upon the terms herein set forth. Seller and
Purchaser acknowledge that all parties to this Agreement are entering into a
long-term agreement, and that Purchaser's ability to conduct its business and
service its customers in a timely and professional manner will be to a
significant extent dependent on Seller's performance hereunder. Either Seller or
Purchaser may at any time initiate an audit to verify the other parties'
compliance with the terms of this Agreement, including Sections 3(a), 3(b), 3(c)
or 4 (the party initiating such an audit is referred to as the "Auditing Party"
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and the party being audited is referred to as the "Audited Party"). Any such
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audit shall be conducted by a national accounting firm (the "Accounting Firm")
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selected by the Audited Party and consented to by the Auditing Party, such
consent not to be unreasonably withheld or delayed. The Accounting Firm shall be
directed by the Audited Party and the Auditing Party to identify the books and
records, and any other relevant information, including accountant's work papers
and reasonable access to personnel, of the Audited Party which are necessary for
the resolution of the disputed matter. The Audited Party shall make available to
the Accounting Firm such books, records and other information (including work
papers and reasonable access to personnel) as the Accounting Firm may reasonably
request during the review; provided that the audit performed by the Accounting
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Firm may not unreasonably interfere with the business and operations of the
Audited Party. The Accounting Firm may share the results of the audit with the
Auditing Party, but the Accounting Firm shall not disclose to the Auditing Party
the names of any customers or suppliers of the Audited Party or other
confidential information (including, without limitation, specific pricing or
volume information as to particular customers) to the Auditing Party. The fees
and expenses of the Accounting Firm shall be paid by the Auditing Party unless
the audit by the Accounting Firm demonstrates that the Audited Party has not
been in material compliance with the provisions of this Agreement, in which case
the Audited Party shall pay such fees and expenses. In the event that following
the audit, the parties disagree over any matter, such matter shall be determined
pursuant to the procedures set forth on Schedule 6.
2. Term. The initial term of this Agreement (the "Initial Term") shall be a
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period of ten (10) consecutive Contract Years (as defined herein), unless
otherwise earlier terminated as provided herein. As used herein, a "Contract
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Year" shall be a one (1) year period commencing on January 1 of any calendar
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year, except that the initial Contract Year shall commence on the date of this
Agreement and end on December 31, 1999 (the "Initial Contract Year"). Any
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termination of this Agreement shall not affect any rights or unsatisfied
obligations accrued hereunder prior to the date of termination. Following
expiration of the initial term, this contract shall be automatically renewed for
subsequent periods of five (5) years unless otherwise canceled, by either party
giving written notice six (6) months prior to the end of the Initial Term or any
renewal term. The Initial Term, together with and any renewal term(s) shall be
referenced herein as the "Term."
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3. Price Terms.
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(a) Procedure for Determination of Price Terms.
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(i) The Price Terms shall be established annually for each Contract
Year based upon the criteria set forth in Section 3(b) as negotiated in
good faith by Seller and Purchaser.**
(b) Basis of Determination. The purchase and sale of each Product purchased
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hereunder shall be on the Price Terms determined pursuant to this Section 3,
subject to Section 5(a)(i) if to be delivered by truck or Section 5(a)(ii) if to
be delivered by rail or barge. The Price Terms for each Product offered by
Seller to Purchaser for such Product** With respect to the Initial Contract
Year, the Price Terms shall be as set forth on Schedule 2.
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** These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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4. Quantity.
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(a)**
(b) Purchases in Excess of Requirements. If Purchaser shall desire to
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purchase a quantity of any Product in excess of the Requirements, Purchaser
shall solicit quotations from suppliers thereof, including Seller. Purchaser
shall have the right to purchase such quantities in excess of Requirements from
suppliers other than Seller.
(c) Purchase Estimates. Pursuant to good faith negotiations between the
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parties, Purchaser shall provide Seller with an estimate (the "Initial
Estimate") not later than sixty (60) days prior to the commencement of each
Contract Year of the quantity of each Product to be purchased by Purchaser
during such Contract Year, and of the Quarterly (as defined herein) amounts
thereof, in substantially the form of Schedule 5 hereto. The Quarterly amounts
shall be a good faith estimate of delivery requirements for the upcoming
Contract Year and shall be based substantially upon delivery requirements
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** These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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experienced during the preceding Contract Year (without giving effect to special
accommodations made by Purchaser to accept early delivery of Product); provided
that Purchaser shall be permitted to make reasonably adjustments to such
Quarterly amounts from year to year. As used herein, "Quarter" means a calendar
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quarter, that is, a 3-month period beginning on January 1, April 1, July 1 and
October 1. The Initial Estimate for the Initial Contract Year is included in
Schedule 5 attached hereto. Pursuant to good faith negotiations between the
parties, Purchaser shall update such estimate not later than the first day of
the month immediately preceding each Quarter (December 1, March 1, June 1 and
September 1, as applicable).
(d) Purchase and Sale Requirements; Remedies.
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(i) (A) (1) Subject to compliance by Purchaser with this Section 4,
during each Contract Year, Seller shall be obligated to**
(2) During each Contract Year, Seller shall use commercially
reasonable efforts to supply any Requirements in excess of the Initial
Estimate for each Product and to fill reasonable requests by Purchaser for
Product in excess of forecasted amounts in any particular Quarter.
(3) Notwithstanding any other provision of this Section 4, if Seller
is unable to supply the Requirements and shall have declared a national or
regional allocation for a Product or Products on account of any
circumstance other than a Force Majeure, Seller shall allocate its
available Product to Purchaser on a basis which is equal to or more
favorable than the allocation of Product to **
other large customer, and such allocation shall be Seller's sole supply
obligation for such Product or Products during such period of allocation.
(B) In the event Seller fails to supply any quantities of Product as
required by Section 4 (d)(i)(A)(1) or Section 4(d)(i)(A)(3), Purchaser
shall be entitled to obtain cover supplies of Product on such reasonable
terms and conditions as are available in the market for such quantities
from suppliers other than Seller, and Purchaser's sole and exclusive remedy
for any cause of action related thereto, whether based on breach of
contract, breach of warranty, strict liability in tort or any other cause
of action, is expressly limited to the greater of (x) the difference in the
price terms obtained by Purchaser for the quantities required by such
Sections to be supplied by Seller (but which were not so supplied) and the
applicable Price Terms or (y) 3% of the Price Terms for the Product Seller
failed to supply as required Section 4(d)(i)(A)(1) or Section
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** These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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4(d)(i)(A)(3); provided, however, that, at the election of Seller, Seller
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may satisfy its failure to supply Product as required by Section
4(d)(i)(A)(1) or Section 4(d)(i)(A)(3) by delivering to Purchaser on the
Price Terms the quantity and type of Product it so failed to supply, or
another Product on the Price Terms in quantities to be agreed to by Seller
and Purchaser, in each case, pursuant to a Purchase Order agreed to by the
parties specifying the location for delivery of the Products. Seller and
Purchaser agree that with respect to any quantities to which Purchaser is
not entitled to an allocation pursuant to Section 4(d)(i)(A)(3), and with
respect to any quantities Seller is unable to supply pursuant to Section
4(d)(i)(A)(2), Purchaser shall have no recourse against Seller hereunder
with respect to such quantities, and the purchase of cover supplies by
Purchaser for such quantities from suppliers other than Seller shall not
constitute a breach of Purchaser's obligations hereunder.
(ii) (A) Each Contract Year, Purchaser shall deliver an officer's
certificate certifying that Purchaser purchased all of its Requirements for
such Product from Seller and not from an alternate producer or supplier
during such Contract Year.
(B) In the event it is determined that Purchaser has failed to
purchase the Requirements for any Product during a Contract Year, Purchaser
shall be obligated to pay Seller the greater of (x) 3% of the aggregate
price which would have been payable for such quantities pursuant to the
Price Terms or (y) the difference in the aggregate price paid by Purchaser
for such Product and the aggregate price which would have been paid for
such Product if purchased on the Price Terms; provided, however, that, at
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the election of Purchaser, Purchaser may satisfy any such failure to
purchase Product by purchasing from Seller on the Price Terms the quantity
and type of Product Purchaser so failed to purchase, or another Product on
the Price Terms in quantities to be agreed to by Seller and Purchaser, in
each case, in excess of Requirements for such Contract Year pursuant to a
Purchase Order placed by Purchaser and accepted by Seller specifying the
location for delivery of the Products. The foregoing remedies shall be
Seller's sole and exclusive remedy for any cause of action related thereto,
whether based on breach of contract, breach of warranty, strict liability,
and tort, or any other cause of action, is expressly limited to such
payment.
5. Delivery, Title and Risk of Loss.
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(a) Delivery. Unless the parties otherwise mutually agree with respect to a
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particular Purchase Order: (i) Purchaser shall arrange for Product to be
delivered by truck to be picked up at a mutually agreeable Seller shipping point
and such Product shall be sold F.O.B. shipping point, and (ii) Seller shall
arrange for shipment of Product to be delivered by rail or barge and such
Product shall be sold F.O.B. destination.
(b) Title and Risk of Loss. Title to and risk of loss of any Product sold
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hereunder F.O.B. destination shall pass to Purchaser upon delivery by the
carrier to Purchaser at the destination, and title to and risk of loss to any
Product sold hereunder F.O.B. shipping point shall pass to Purchaser upon
delivery to the carrier at the shipping point.
6. Purchase Orders. All sales and purchases of Product shall be made pursuant to
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a specified purchase order from Purchaser to Seller ("Purchase Order"),
identifying and stating the quantity of Product to be purchased by Purchaser,
the Purchase Price for the Product to be purchased by Purchaser, the location to
which Product should be delivered and the means of transportation by which the
Product should be delivered. Product to be delivered by truck shall be only in
whole truckload quantities.
7. Product Exchanges. Seller may (a) fill any purchase order with Product
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obtained through exchange with a third party, or (b) provide Product, produced
by Seller to a mutually agreeable third party for sale to Purchaser; provided,
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however, that, in either event, Seller shall remain responsible for Product
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quality as though Product were produced by Seller or its Affiliates and sold
directly to Purchaser.
8. Billing and Payment. Seller shall invoice Purchaser separately on the date of
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shipment for each shipment of Product sold hereunder.**
9. Taxes and Duties. Purchaser shall be responsible for, and shall promptly pay
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or reimburse Seller if Seller pays, all taxes, charges, fees, duties and other
governmental charges (other than income taxes) imposed on the sale,
transportation or use of any Product sold hereunder.
10. Specifications/Quality. Seller shall provide Products meeting the
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specifications set forth in Schedule 1 hereto.
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11. Warranties and Disclaimer. Seller makes no warranty of any kind, express or
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implied, except that Seller represents and warrants that (i) Products sold
hereunder shall at the time of delivery substantially conform to the
specifications set forth in Schedule 1 hereto, (ii) Seller will convey good
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title thereto, free from any security interest (except for a security interest
created by or through Purchaser) (iii) Products sold hereunder shall be of a
quality that is usual and customary in the industry, (iv) Products sold
hereunder shall have free-flowing characteristics, (v) Products sold hereunder
shall not be adulterated, and be generally free of foreign materials, all in
accordance with and subject to industry standards, and (vi) Products sold
hereunder shall contain only a immaterial amount of dust and shall have been
"cured" for an appropriate amount of time, all in accordance with industry
standards and (vii) Products sold hereunder shall be in conformity with, in all
material respects, any applicable statutes, rules or regulations.
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** These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. Seller makes no recommendations
for use of any of the Products and no warranty of the results to be obtained by
such use.
12. Claims/Limited Remedies. In the event any Product fails to conform to any of
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the above warranties, Purchaser's sole and exclusive remedy for any cause of
action related thereto, whether based on breach of contract, breach of warranty,
strict liability in tort or any other cause of action, is expressly limited, at
Purchaser's option, with the consent of Seller, which consent shall not be
unreasonably withheld or delayed, to (a) a refund of the purchase price for the
nonconforming Product, (b) the replacement of the nonconforming Product or (c) a
refund of a portion of the purchase price for the nonconforming Product (as
determined by the parties in good faith). To the extent Purchaser is entitled to
either of the remedies set forth in clause (a) or (b) above, Purchaser shall
return, reroute or dispose of the nonconforming Product as requested by Seller.
All claims relating to quantity or condition of any Product delivered hereunder
(other than on account of the representations in Section 11(v), (vi) or (vii)
shall be waived unless received by Seller in writing within seven (7) days after
delivery. All claims relating to condition of any Product delivered hereunder on
account of the representations in Section 11(v), (vi) or (vii) shall be waived
unless received by Seller in writing within seven (7) days after noncomformity
with such representations shall have been discovered or should have been
discovered by Purchaser (and in no event later than ninety (90) days following
delivery).
13. Indemnification.
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(a) Scope of Indemnification by Purchaser. Purchaser will indemnify and hold
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harmless, and at Seller's election defend, Seller, its Affiliates and the third
parties referred to in Section 7, and their respective officers, directors,
shareholders, employees and agents and the heirs, personal representatives,
successors and assigns of all of the foregoing (collectively, the "Seller
Indemnitees") from and against all liabilities, demands, claims, actions and
causes of action, assessments, losses, penalties, costs, damages and expenses
(including reasonable attorneys' and expert witness fees) ("Losses") sustained
or incurred by any of the Seller Indemnitees as a result of or arising out of or
by virtue of the sale, use or storage of Products except to the extent such
Losses arise out of a breach of the representations and warranties of Seller in
Section 11 (whether or not Purchaser has a remedy under Section 12 in respect
thereof).
(b) Scope of Indemnification by Seller. Seller will indemnify and hold harmless,
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and at Purchaser's election defend, Purchaser, its Affiliates and their
respective officers, directors, shareholders, employees and agents and the
heirs, personal representatives, successors and assigns of all of the foregoing
(collectively, the "Purchaser Indemnitees") from and against all Losses
sustained or incurred by any of the Purchaser Indemnitees as a result of or
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arising out of or by virtue of the sale, use or storage of Products to the
extent such Losses arise out of a breach of the representations and warranties
of Seller in Section 11.
(c) Defense. Either party shall have the right, at its own expense, to
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participate in the defense of any action or proceeding brought by a third party
which results in a claim for indemnification, and if said right is exercised,
the parties shall cooperate in the defense of said action or proceeding.
14. Measurements. Seller's weights and analysis shall determine the quantities
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sold hereunder unless proved to be in material error.
15. Force Majeure. Either party's failure or inability to make or take any
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delivery or deliveries when due, or the failure or inability of either party to
effect timely performance of any other obligation required of it hereunder,
except any obligation to pay money, if caused by Force Majeure (as defined
herein) shall not constitute a default hereunder or subject the party claiming
Force Majeure to any liability to the other party, if the party so claiming
shall have promptly notified the other party of the existence and expected
duration thereof and the estimated effect thereof on its ability to perform
hereunder. The party claiming Force Majeure shall promptly notify the other
party when the Force Majeure has ceased to affect its ability to perform
hereunder. In the event of Force Majeure, the total quantities to be delivered
hereunder shall be reduced to the extent of deliveries omitted during the Force
Majeure period and as a result of the Force Majeure. For so long as Seller's
ability to perform is affected by Force Majeure, Seller shall allocate its total
production among its various requirements therefor among Purchaser
** and other large customers on a basis which is more favorable
than the allocation of Product to any ** other large
customer, and Seller shall not be obligated to procure any quantity of Product
from any alternate producer or supplier and Seller shall not be liable for
resulting incomplete fulfillment of this Agreement. As used herein, "Force
Majeure" means and includes any act of God, the public enemy, any accident,
explosion, fire, storm, earthquake, flood, drought, perils at sea, strikes,
lockouts, labor disputes, riots, sabotage, embargo, war (whether or not declared
and whether or not the United States of America is a participant), prorations
mandated by federal, state, provincial or municipal law, failure or delay of
transportation beyond the reasonable control of the party affected thereby,
inability to obtain raw materials, supplies, equipment, fuel, power, labor, or
other operational necessity beyond the reasonable control of the party affected
thereby, interruption or curtailment of power supply, or any other circumstance
of a similar or different nature beyond the reasonable control of the party
affected thereby. In this connection, neither party shall be required to resolve
labor disputes or disputes with suppliers of raw materials, supplies, equipment,
fuel or power, except in accordance with such party's business judgment as to
its best interest.
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** These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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16. Breach; Termination.
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(a) Late Payment. If Purchaser shall be late in making any payment for Products
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hereunder (other than for payments which are the subject of a good faith dispute
between the parties, as to which no penalty shall accrue until the dispute has
been resolved), all late payments shall bear interest from the due date to the
date of payment in full at the rate of one and one-half percent (1.5%) per
month, and, if such delinquency remains uncured for 30 days following notice
thereof, Seller may at its sole discretion by notice to Purchaser elect one or
more of the following courses of action:
(i) cease to make any further deliveries hereunder until Purchaser has made
up the late payment and has taken steps to assure Seller to its
satisfaction that there shall be no such delinquencies in the future; and
(ii) refuse to make any further deliveries hereunder except upon cash
payments on delivery until Purchaser has made up the late payment and has
taken steps to assure Seller to its satisfaction that there shall be no
such delinquencies in the future.
If Purchaser has not paid in full all late payments within thirty (30) days of
such notice, Seller may at its option by notice to Purchaser terminate this
Agreement. The election by Seller of any of the remedies hereunder shall in no
way limit any other rights and remedies available to Seller in law or in equity.
(b) Termination. If either party shall fail to perform any material part of this
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Agreement (other than provided for in Section 16(a)) and, upon notice of such
failure by the other party, shall fail to remedy the same within thirty (30)
days of such notice, then, in such event, this Agreement may be terminated
forthwith by written notice at the option of the other party with such other
party retaining all its other rights and remedies available to it in law and in
equity.
17. Consent to Jurisdiction; Service of Process. This Agreement has been
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executed and delivered in Chicago, Illinois. Seller and Purchaser each
agrees to the exclusive jurisdiction of any state or Federal court within the
City of Chicago, with respect to any claim or cause of action arising under or
relating to this Agreement, and waives personal service of any and all process
upon it, and consents that all services of process be made by registered or
certified mail, return receipt requested, directed to it at its address set
forth in Section 18(g), and service so made shall be deemed to be completed when
received. Seller and Purchaser each waive any objection based upon forum non
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conveniens and waive any objection to venue of any action instituted hereunder.
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Nothing in this Section 17 shall affect the right of Seller or Purchaser to
serve legal process in any other manner permitted by law. Seller and Purchaser
each waives the right to a jury trial in connection with any suit, action or
proceeding seeking enforcement of such party's rights under, or by virtue of any
party's breach of, this Agreement.
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18. Miscellaneous.
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(a) Entire Agreement. This Agreement contains the entire agreement of the
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parties hereto with respect to the subject matter of this Agreement. Any and all
prior discussions or agreements with respect hereto are merged into and
superseded by the terms of this Agreement. This Agreement may be modified or
amended only in a writing signed by both parties which expressly refers to this
Agreement and states its intention to modify or amend this Agreement. No such
amendment or modification shall be effected by use of any purchase order,
acknowledgment, invoice or other form of either party and in the event of
conflict between the terms of this Agreement and any such form, the terms of
this Agreement shall control (it being understood that no Purchase Order may
contain terms which are inconsistent with the terms of this Agreement).
(b) Non-waiver. The failure in any one or more instances of a party to
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insist upon performance of the terms, covenants or conditions of this Agreement,
to exercise any right or privilege in this Agreement conferred, or the waiver by
said party of any breach of any of the terms, covenants or conditions of this
Agreement, shall not be construed as a subsequent waiver of any such terms,
covenants, conditions, rights or privileges, but shall continue and remain in
full force as if no such forbearance or waiver had occurred. No waiver shall be
effective unless it is in writing and signed by an authorized representative of
the waiving party.
(c) Counterparts. This Agreement may be executed in multiple counterparts,
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each of which shall be deemed to be an original and all such counterparts shall
constitute but one instrument.
(d) Assignment. Neither party shall assign this Agreement, in whole or in
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part, without the prior written consent of the other party, provided, however,
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that any party, its successors and other permitted assigns may assign this
Agreement and its rights and obligations hereunder, to a successor to or
assignee of substantially all of the assets and business of the assignor to
which this Agreement applies, or as a result of a merger or consolidation or to
an Affiliate, its successors or other permitted assigns. Any assignment or
attempted assignment in contravention of the foregoing shall be null and void,
shall be considered a material breach of the Agreement and shall permit the
other party, in addition to any other rights and remedies which may be available
by law or in equity, to terminate this Agreement.
(e) Severability and Violation of Laws. The invalidity of any provision of
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this Agreement or a portion of the provisions shall not effect the validity of
any other provision of this Agreement or the remaining portion of the applicable
provision. Notwithstanding anything herein to the contrary, no party shall be
obligated to perform any obligation herein or comply with any provision herein
to the extent such obligation or provision conflicts with or is in violation of
any applicable law.
(f) Applicable Law. This Agreement shall be governed and controlled as to
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validity, enforcement, interpretation, construction, effect and all other
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respects while the internal laws of the State of Illinois applicable to
contracts made in that state, without giving effect to the conflict of laws
principles thereof.
(g) Notices. All notices and other communications hereunder, shall be in
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writing and shall be deemed validly given if delivered personally or sent by
certified or registered mail, postage prepaid, or by telex, fax or cable to the
following addresses, unless otherwise designated or changed by written notice to
the other parties hereto:
If to Agrico addressed to:
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Fax: (000) 000-0000
If to Kalium addressed to:
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Fax: (000) 000-0000
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If to Purchaser addressed to:
Xxxxxxx-Xxxxx, Inc.
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
Any notice delivered personally shall be deemed received when such delivery is
tendered and if mailed in one of the manners provided above, it shall be deemed
received on the second business day after it is postmarked. Notices sent by
other methods shall be deemed received when actually received by the addressee
or its authorized agent.
(h) Headings. The Section headings as to the contents of particular
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Sections are for the convenience of the parties and are in no way to be
construed as part of this Agreement or as a limitation of the scope of the
particular Sections to which they refer.
(i) Bankruptcy/Insolvency. If either Purchaser or Seller becomes insolvent
---------------------
or ceases to function as a going concern, or if a receiver for it is appointed
or applied for, or a petition under any bankruptcy or reorganization statute is
filed by it or against it, or if it makes an assignment for the benefit of
creditors or takes advantage of any insolvency statute, the other party hereto,
in addition to any other rights and remedies which may be available by law or in
equity, may terminate this Agreement.
(j) Confidentiality. During the Term, the parties shall keep in strict
---------------
confidence the content of this Agreement and all information disclosed by the
other parties hereunder or Affiliates of such parties unless otherwise required
by a governmental body or a court of law or by the applicable rules of any stock
exchange.
(k) Good Faith. Each party shall at all times act in good faith in taking
----------
all actions and performing all obligations, covenants and agreements in
connection with the transaction contemplated hereby.
(l) Setoff. Purchaser and Seller each hereby waives all rights of setoff
------
and recoupment it may have against the other party hereto with respect to all
amounts which may be owed from time to time pursuant to this Agreement.
(m) Binding Effect. This Agreement shall inure to the benefit of and be
--------------
binding upon the parties hereto, and their successors and permitted assigns.
(n) No Consequential Damages. IN NO EVENT SHALL SELLER OR PURCHASER BE
------------------------
LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL (INCLUDING LOSS OF
PROFIT) OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON
BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY IN TORT OR ANY OTHER
CAUSE OF ACTION.
(o) Storage and Handling Agreements. Within 45 days following the date of
-------------------------------
this Agreement, Purchaser and Agrico agree to enter into Storage and Handling
-12-
Agreements in the form attached as Exhibit A hereto (the "Phosphate Warehousing
------- ---------------------
Agreements"), and Purchaser and Kalium agree to enter into Storage and Handling
----------
Agreements in the form attached as Exhibit B hereto (the "Potash Warehousing
------------------
Agreements" and, together with the Phosphate Warehousing Agreement,
----------
collectively, the "Warehousing Agreements" or, individually, a "Warehousing
---------------------- -----------
Agreement"). The Warehousing Agreements will provide for storage and handling at
---------
each of the facilities of IMC AgriBusiness which are being used by Kalium and
Agrico, respectively, to store Product as of the date hereof. The forms of each
of the Potash Warehousing Agreements and the Phosphate Warehousing Agreements
will be completed based upon the present arrangements under which Product is
stored at such facilities. Until the parties enter into the Warehousing
Agreements, the terms of such arrangements will be continued based upon existing
letter agreements between IMC AgriBusiness Inc. and each Seller.
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
IMC KALIUM LTD.
By: /s/ Xxxx X. Xxxxx
-----------------------------
Its: SVP
-----------------------------
IMC-AGRICO COMPANY
By: IMC-AGRICO MP, INC.,
its managing general partner
By: /s/ Xxxx X. Xxxxx
-----------------------------
Its: SVP
-----------------------------
XXXXXXX-XXXXX, INC.
By: /s/ G. Xxxxxxx Xxxxxxxx
-----------------------------
Its:
-----------------------------
-14-
Exhibit A
STORAGE AND HANDLING AGREEMENT
THIS AGREEMENT made this ____ day of __________, 1999 between
XXXXXXX-XXXXX, INC., a Delaware Corporation, having its principal office at
_____________________________________________________________________________
(hereinafter called "WAREHOUSEMAN") and IMC-AGRICO Company, a Delaware General
Partnership, having its principal office at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX,
00000 (hereinafter called "IMC-AGRICO");
W I T N E S S E T H:
WHEREAS, IMC-AGRICO desires to have certain of its Product (as hereinafter
defined) stored and handled at______________________________ and WAREHOUSEMAN is
willing to provide such storage and handling.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set out herein, the parties agree as follows:
1. TERM: The initial term of this Agreement shall begin on the date herof
-----
and shall end on the first anniversary of the date hereof. This Agreement shall
automatically renew for an indefinite number of successive one (1) year renewal
terms at the end of the initial term and each such renewal term unless and until
terminated by either WAREHOUSEMAN or IMC-AGRICO upon written notice to the
other, effective at the end of the initial term or the then current renewal
term, delivered not less than sixty (60) days before the end of the initial term
or the then current renewal term. The rates, charges and other terms and
conditions during any renewal term shall be the same as the rates, charges and
other terms and conditions during the term immediately preceding that renewal
term unless otherwise agreed by WAREHOUSEMAN and IMC-AGRICO in writing not less
than sixty (60) days before the beginning of that renewal term.
2. PROVISIONS OF FACILITIES: WAREHOUSEMAN shall provide adequate segregated
-------------------------
storage space for __________ tons of IMC-AGRICO's ______________ (hereinafter
called "Product") at WAREHOUSEMAN's warehouse facility located in _________
(City or Town), ________(State or Province) (hereinafter called the "Facility");
WAREHOUSEMAN shall not store IMC-AGRICO's Product at any other location without
IMC-AGRICO's prior written consent. If such consent is provided, such other
locations shall be the designated "Facility" hereunder.
WAREHOUSEMAN shall not commingle IMC-AGRICO's Product with any other product
without IMC-AGRICO's prior written consent.
3. STORAGE AND HANDLING: IMC-AGRICO's Product received by WAREHOUSEMAN and
---------------------
stored hereunder shall be delivered to WAREHOUSEMAN by __________________ and
shall be shipped out by __________________. WAREHOUSEMAN shall be responsible
for IMC-AGRICO's Product from the time it arrives at the Facility until such
time as Product is loaded for shipment from the Facility. WAREHOUSEMAN agrees
that it will follow, in all material respects, the procedures described in
Schedule A attached hereto and incorporated herein by reference in the storage
and handling of IMC-AGRICO's Product.
4. CHARGES: WAREHOUSEMAN shall charge IMC-AGRICO for contracted services
--------
according to Schedule B attached hereto and incorporated herein by reference.
The charges for first month's storage and handling shall be paid by
IMC-AGRICO upon receipt by IMC-AGRICO of a proper invoice from WAREHOUSEMAN,
based on origin inbound bills of lading. Subsequent storage and other charges
will be paid monthly upon receipt by IMC-AGRICO of a proper invoice from
WAREHOUSEMAN detailing the charges for the preceding month. All invoices are due
and payable within thirty (30) days following the invoice date provided that
IMC-AGRICO need not pay disputed charges pending resolution of said dispute.
WAREHOUSEMAN shall not assert against IMC-AGRICO any warehouseman's lien on
IMC-AGRICO's Product stored under this Agreement, including any such lien
arising under Section 7-209 of the Uniform Commercial Code, except for a
warehouseman's lien limited in amount to those accrued and unpaid warehouse fees
owing under this Agreement and invoiced by WAREHOUSEMAN to IMC-AGRICO as
hereinabove provided.
5. ACCESS TO FACILITY: IMC-AGRICO's representatives shall have full access
-------------------
to the Facility at reasonable intervals during normal working hours in order to
inspect the Facility, take inventory of IMC-AGRICO's Product stored therein, and
examine all of WAREHOUSEMAN's records pertaining to IMC-AGRICO's Product.
6. TITLE: IMC-AGRICO shall retain title to all IMC-AGRICO Product received
------
by WAREHOUSEMAN. WAREHOUSEMAN's responsibility for IMC-AGRICO's Product shall be
limited exclusively to the supplying storage space and handling of Product, as
specified in Schedule A attached hereto and incorporated herein by reference.
7. SHRINKAGE: WAREHOUSEMAN's responsibility for IMC-AGRICO's Product shall
----------
be limited exclusively to the supplying of storage space and careful handling of
the Product as specified in Schedule A attached hereto; and to shipping
out, pursuant to Sections 3 and 8 hereof, not less than 99% of the quantity of
each Product received by WAREHOUSEMAN. It is understood that the above 1%
shrinkage allowance shall be based upon actual shrinkage and WAREHOUSEMAN shall
not be entitled to retain IMC-AGRICO's Product up to the allowable shrinkage.
Shrinkage shall be determined by comparison of origin inbound certified weight
receipts and outbound certified weight receipts, when physical inventory is at a
zero level. WAREHOUSEMAN shall be responsible for any Product loss or damage in
excess of the allowable shrinkage. Payment for shrinkage in excess of that
provided above shall be at IMC-AGRICO's current price at mine or production
point, plus transportation from such mine or production point to WAREHOUSEMAN's
Facility, plus WAREHOUSEMAN's inbound handling charge.
Settlement for shrinkage shall be made each time inventory reaches a zero
level, which such action shall be taken not less than once every contract year,
and there shall be no carry-over from year to year of unused shrinkage
allowance. IMC-AGRICO shall not be obligated to pay WAREHOUSEMAN for any
accumulated, unused credit which remains after settlement hereunder on
termination.
8. LOADING INSTRUCTIONS: On written instructions from IMC-AGRICO,
---------------------
WAREHOUSEMAN shall use its reasonable best efforts to load each truck and/or
railcar to maximum legal capacity to gain the minimum tariff rate provided for
said truck and/or railcar. Any costs or penalties associated with overloads
shall be for the account of WAREHOUSEMAN.
9. INSURANCE: IMC-AGRICO agrees to insure or self-insure its Product stored
----------
by WAREHOUSEMAN against all risks covered by IMC-AGRICO's Fire and Extended
Coverage Insurance. WAREHOUSEMAN shall, at its own expense, maintain insurance
as follows for the terms of this Agreement:
A. Workers' Compensation Insurance as prescribed by law and
-------------------------------
Employer's Liability insurance with a limit per accident of not less than
$500,000. If WAREHOUSEMAN's workers' compensation liability is required to
be insured with a state fund, WAREHOUSEMAN shall furnish IMC-AGRICO with
evidence that is satisfactory to IMC-AGRICO that WAREHOUSEMAN is so
insured.
B. All Risk Comprehensive General Liability Insurance covering
--------------------------------------------------
public liability, property damage insurance, with respect to the Facility,
including a contractual liability provision to cover the liability assumed
by WAREHOUSEMAN under this Agreement and automobile liability, all with a
combined single limit for bodily injury and property damage liability of
not less than $1,000,000 with respect to any one occurrence.
WAREHOUSEMAN shall deliver to IMC-AGRICO Certificates of Insurance evidencing
the issuance of the required policies and the fact that they are in force, and
stating that such policies will not be canceled or materially changed without
sixty (60) days prior notice to IMC-AGRICO. Such insurance policies shall be
obtained from companies satisfactory to IMC-AGRICO.
10. SUBCONTRACTOR INSURANCE: If any of WAREHOUSEMAN's obligations under
------------------------
this Agreement are, with IMC-AGRICO's prior written consent, subcontracted,
WAREHOUSEMAN shall require each subcontractor to maintain insurance as described
in Section 9 hereof and shall provide IMC-AGRICO with evidence of such
insurance.
11. LIABILITY:
----------
A. IMC-AGRICO, its partners and/or affiliates (including but not
limited to IMC Global Inc., IMC Global Operations Inc. and Phosphate
Resource Partners Limited Partnership), and/or their agents, officers,
directors, attorneys and/or employees, shall not be responsible or liable
to WAREHOUSEMAN or to any of WAREHOUSEMAN's agents, including
WAREHOUSEMAN's insurance carrier, for any workers' compensation benefits
paid to WAREHOUSEMAN's employees. WAREHOUSEMAN waives any claims, liens,
causes of action, or any other rights it or its agents, including insurance
carriers, may have against IMC-AGRICO, its partners and/or affiliates
(including but not limited to IMC Global Inc., IMC Global Operations Inc.
and Phosphate Resource Partners Limited Partnership), and/or their agents,
officers, directors, attorneys and/or employees, for sums paid or to be
paid by IMC-AGRICO, relating to any payments made to WAREHOUSEMAN's
employees by WAREHOUSEMAN pursuant to its workers' compensation
obligations. WAREHOUSEMAN also waives any claims, liens, causes of action,
or any other rights it or its agents, including insurance carriers, may
have against IMC-AGRICO, its partners and/or affiliates (including but not
limited to IMC Global Inc., IMC Global Operations Inc. and Phosphate
Resource Partners Limited Partnership), and/or their agents, officers,
directors, attorneys and/or employees, for any sums paid or to be paid by
IMC-AGRICO, relating to any actions or claims by WAREHOUSEMAN's employees
against IMC-AGRICO, its partners and/or affiliates (including but not
limited to IMC Global Inc., IMC Global Operations Inc. and Phosphate
Resource Partners Limited Partnership), and/or their agents, officers,
directors, attorneys and/or employees. IN NO EVENT SHALL IMC-AGRICO, ITS
PARTNERS AND/OR AFFILIATES, AND/OR THEIR AGENTS, OFFICERS, DIRECTORS,
ATTORNEYS AND/OR EMPLOYEES, BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER BASED UPON
NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE.
B. WAREHOUSEMAN, its partners and/or affiliates, and/or their
agents, officers, directors, attorneys and/or employees, shall not be
responsible or liable to IMC-AGRICO or to any of IMC-AGRICO's agents,
including IMC-AGRICO's insurance carrier, for any workers' compensation
benefits paid to IMC-AGRICO's employees. IMC-AGRICO waives any claims,
liens, causes of action, or any other rights it or its agents, including
insurance carriers, may have against WAREHOUSEMAN, its partners and/or
affiliates, and/or their agents, officers, directors, attorneys and/or
employees, for sums paid or to be paid by WAREHOUSEMAN, relating to any
payments made to IMC-AGRICO's employees by IMC-AGRICO pursuant to its
workers' compensation obligations. IMC-AGRICO also waives any claims,
liens, causes of action, or any other rights it or its agents, including
insurance carriers, may have against WAREHOUSEMAN, its partners and/or
affiliates, and/or their agents, officers, directors, attorneys and/or
employees, for any sums paid or to be paid by WAREHOUSEMAN, relating to any
actions or claims by IMC-AGRICO's employees against WAREHOUSEMAN, its
partners and/or affiliates, and/or their agents, officers, directors,
attorneys and/or employees. IN NO EVENT SHALL WAREHOUSEMAN, ITS PARTNERS
AND/OR AFFILIATES, AND/OR THEIR AGENTS, OFFICERS, DIRECTORS, ATTORNEYS
AND/OR EMPLOYEES, BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED UPON NEGLIGENCE, BREACH OF CONTRACT, BREACH OF
WARRANTY, OR OTHERWISE.
12. INDEMNIFICATION:
----------------
A. WAREHOUSEMAN agrees to indemnify, defend, and hold harmless
IMC-AGRICO, its partners and affiliates (including but not limited to IMC
Global Inc., IMC Global Operations Inc. and Phosphate Resource Partners
Limited Partnership), and their agents, insurers, officers, attorneys,
directors, and employees, from and against any and all liabilities, losses,
expenses, damages, demands and claims, including third party claims for
contribution, attorneys' fees, arising out of injury or alleged injury to
any persons (including death), damage or alleged damage to any property
(including IMC-AGRICO's Product stored under this Agreement), any
adulteration, misformulation or contamination of IMC's raw materials or
finished goods, any violation or alleged violation of any environmental,
health or safety laws, whether federal, state or local, or any "release" or
"threatened release" of any "hazardous substance" (as those terms are
defined under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. xx.xx. 9601 et seq. or the Resource Conservation
-------
and Recovery Act, 42 U.S.C. xx.xx. 6901 et seq.) resulting
-------
from or occurring in connection with WAREHOUSEMAN's possession or handling
of any IMC-AGRICO Product or other performance by WAREHOUSEMAN under this
Agreement but only if due to the negligence or willful act or omission of
WAREHOUSEMAN, its employees, agents, representatives or subcontractors. The
parties intend this provision to be construed broadly.
B. IMC-AGRICO agrees to indemnify, defend, and hold harmless
WAREHOUSEMAN, its partners and affiliates, and their agents, insurers,
officers, attorneys, directors, and employees, from and against any and all
liabilities, losses, expenses, damages, demands and claims, including third
party claims for contribution, attorneys' fees, arising out of injury or
alleged injury to any persons (including death), damage or alleged damage
to any property, any adulteration, misformulation or contamination of
IMC-AGRICO's raw materials or finished goods, any violation or alleged
violation of any environmental, health or safety laws, whether federal,
state or local, or any "release" or "threatened release" of any "hazardous
substance" (as those terms are defined under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. xx.xx.
9601 et seq. or the Resource Conservation and Recovery Act, 42 U.S.C.
------
xx.xx. 6901 et seq.) resulting from or occurring in connection with
------
IMC-AGRICO's production or handling of any its Product or other performance
by IMC-AGRICO under this Agreement. The parties intend this provision to be
construed broadly.
13. INDEPENDENT CONTRACTOR: In the performance of the Agreement,
-----------------------
WAREHOUSEMAN will not be under IMC-AGRICO's control as to the persons engaged by
WAREHOUSEMAN to assist in said performance, or to the means and methods employed
by WAREHOUSEMAN in accomplishing said performance, WAREHOUSEMAN's responsibility
to IMC-AGRICO being only for results in accordance with arrangements set forth
herein. All employees, agents, or other representatives engaged by WAREHOUSEMAN
in connection with the performance of this Agreement will be of WAREHOUSEMAN's
own account, and at WAREHOUSEMAN's own expense, and the terms and tenure and
hours of their employment and their wages or salaries shall be under
WAREHOUSEMAN's exclusive control and direction at all times.
It is further understood and agreed by the parties hereto that WAREHOUSEMAN
is, and for all purposes shall be considered, an independent contractor and
fully and exclusively liable: (a) for the payment of any and all taxes now or
hereafter imposed by any governmental authority which are measured by wages,
salaries, or commissions paid to persons in its employment; (b) for any accident
to persons or property that may occur at the Facility or on other premises of
WAREHOUSEMAN; and
(c) to procure and maintain such workers' compensation insurance covering its
employees as may be required by law.
14. COMPLIANCE WITH LAWS:
---------------------
A. WAREHOUSEMAN and its facilities will comply in all material
respects with any and all applicable laws, statutes, regulations, rules,
ordinances, and orders (including but not limited to environmental, health
and safety laws and regulations). WAREHOUSEMAN agrees to provide prompt
notice to IMC-AGRICO of any inspection carried out by any federal, state,
or local official to determine WAREHOUSEMAN'S (or its facilities)
compliance with such requirements. (Such notice will be made by __________
to __________ and will be followed by written notification to ___________.)
In that regard, should any fines, penalties, or like impositions be levied
by reason of WAREHOUSEMAN's failure to fulfill its obligations under this
Section 14, WAREHOUSEMAN does specifically agree that it shall have sole
and complete responsibility therefor and does hereby release, discharge,
indemnify and hold IMC-AGRICO harmless therefrom to the extent caused by
WAREHOUSEMAN'S breach. WAREHOUSEMAN agrees to promptly inform IMC-AGRICO of
all allegations of any adverse health or environmental effect associated
with release of or exposure to IMC-AGRICO'S raw materials or finished goods
subject to this Agreement (including but not limited to, accidental
environmental releases of IMC-AGRICO'S products or reports from
WAREHOUSEMAN'S employees of such illnesses or injuries).
B. IMC-AGRICO and its facilities will comply in all material
respects with any and all applicable laws, statutes, regulations, rules,
ordinances, and orders (including but not limited to environmental, health
and safety laws and regulations). IMC-AGRICO agrees to provide prompt
notice to WAREHOUSEMAN of any inspection carried out by any federal, state,
or local official to determine IMC-AGRICO'S (or its facilities) compliance
with such requirements. (Such notice will be made by __________ to
__________ and will be followed by written notification to ___________.) In
that regard, should any fines, penalties, or like impositions be levied by
reason of IMC-AGRICO's failure to fulfill its obligations under this
Section 14, IMC-AGRICO does specifically agree that it shall have sole and
complete responsibility therefor and does hereby release, discharge,
indemnify and hold WAREHOUSEMAN harmless therefrom to the extent caused by
IMC-AGRICO'S breach. IMC-AGRICO agrees to promptly inform WAREHOUSEMAN of
all allegations of any adverse health or environmental effect associated
with release of or exposure to WAREHOUSEMAN'S raw materials or finished
goods subject to this Agreement (including but not limited to, accidental
environmental releases of
WAREHOUSEMAN'S products or reports from IMC-AGRICO'S employees of such
illnesses or injuries).
15. TAXES AND FEES: All taxes assessed against WAREHOUSEMAN for the
---------------
operation of its warehousing business, as well as the cost of any permits and
licenses for said business, shall be for the account of WAREHOUSEMAN. IMC-AGRICO
shall pay all ad valorem taxes which may be levied against the Product stored
for IMC-AGRICO.
16. EXCUSE OF NONPERFORMANCE: Neither IMC-AGRICO, its partners and
-------------------------
affiliates, and/or their agents, officers, directors, attorneys and/or
employees, nor WAREHOUSEMAN, and/or its agents, officers, directors and/or
employees, shall be responsible to the other for any failure to perform
hereunder as a result of any cause beyond its reasonable control including,
without limitation, acts of God, the public enemy, any accident, explosion,
fire, storm, earthquake, flood, drought, strikes, lockouts, labor disputes,
riots, sabotage, war (whether or not declared) or civil unrest, failure or delay
of transportation beyond the reasonable control of the party affected thereby,
inability to obtain supplies, equipment, fuel, power, labor or other operational
necessity beyond the reasonable control of the party effected thereby, or
interruption or curtailment of power supply, if the party claiming such
inability to perform shall have promptly notified the other party, by telephone
and by writing, of the existence and expected duration thereof and the estimated
effect thereof on its ability to perform hereunder, and shall have proceeded
diligently to correct such inability to perform to the extent reasonably
possible. Should WAREHOUSEMAN fail to perform or become unable to perform
loading or unloading or storage services for IMC-AGRICO as a result of any such
cause beyond its reasonable control, IMC-AGRICO will be entitled to an abatement
of any storage and guaranteed throughput charges hereunder, calculated pro rata
on the respective storage or guaranteed throughput charge for the period of the
failure. The party claiming an inability to perform shall promptly notify the
other party when such inability has ceased to affect its ability to perform
hereunder.
Neither IMC-AGRICO nor WAREHOUSEMAN shall be required to resolve labor
disputes or disputes with suppliers of raw materials, supplies, equipment, fuel
or power, except in accordance with such party's business judgment as to its
best interest. Nevertheless, in the event of a work stoppage at the Facility due
to strike or other labor difficulty, WAREHOUSEMAN will make all reasonable
efforts to handle IMC-AGRICO's Product with WAREHOUSEMAN's supervisory help.
17. DEFAULT:
--------
A. Any one or more of the following events shall constitute a
default by WAREHOUSEMAN under this Agreement: (a) if WAREHOUSEMAN fails or
neglects to perform, keep or observe, in all material respects, any term,
provision, condition, covenant, warranty or representation contained in
this Agreement, which term, provision, condition, covenant, warranty or
representation is required to be performed, kept or observed by
WAREHOUSEMAN; (b) if any representation, statement, or warranty made or
furnished by or on behalf of WAREHOUSEMAN is not true and correct in all
material respects when made; (c) if WAREHOUSEMAN fails to pay when due and
payable or declared due and payable any of its liabilities to IMC-AGRICO;
(d) if all or any of WAREHOUSEMAN's assets are attached, seized, subjected
to a writ or distress warrant, or are levied upon, or come within the
possession of any receiver, trustee, custodian or assignee for the benefit
of creditors; (e) if a proceeding under the Bankruptcy Code shall be filed
by or against WAREHOUSEMAN; (f) if WAREHOUSEMAN shall make an assignment
for the benefit of creditors; (g) if any proceeding is filed or commenced
by or against WAREHOUSEMAN for its dissolution or liquidation; (h) if a
notice of lien, levy or assessment is filed of record with respect to all
or any of WAREHOUSEMAN's assets by the United States or any department,
agency or instrumentality thereof, or by any state, county, municipality or
other governmental agency, or if any taxes or debts owing at any time or
times hereafter to any one or more of them becomes a lien, whether xxxxxx
or otherwise, upon all or any of WAREHOUSEMAN's assets; or (i) if a
judgment or other claim becomes a lien or encumbrance upon all or any of
WAREHOUSEMAN's assets; provided, however, that WAREHOUSEMAN shall not be
deemed to be in default under subsections (a)-(d) or (g)-(i) of this
Section 17 if WAREHOUSEMAN remedies the event of default within thirty (30)
days after written notice from IMC-AGRICO of the existence of such event of
default.
Upon the occurrence of an event of default by WAREHOUSEMAN under
this Agreement, IMC-AGRICO shall have the right, at its sole option, and in
addition to any other right or remedy available to IMC-AGRICO, to terminate
this Agreement by written notice. In addition, IMC-AGRICO shall have the
right to take possession of all Product in which it retains title or other
interest hereunder in a manner permitted by law without liability for
trespass or for damages. Any re-entry, resumption, or possession of the
Facility by IMC-AGRICO shall in no event be deemed to be a surrender of
this Agreement or a waiver of any right or remedy of IMC-AGRICO under this
Agreement.
B. Any one or more of the following events shall constitute a
default by IMC-AGRICO under this Agreement: (a) if IMC-AGRICO fails or
neglects to perform, keep or observe, in all material respects, any term,
provision, condition, covenant, warranty or representation contained in
this Agreement, which term, provision, condition, covenant, warranty or
representation is required to be performed, kept or observed by IMC-AGRICO;
(b) if any representation, statement, or warranty
made or furnished by or on behalf of IMC-AGRICO is not true and correct in
all material respects when made; (c) if IMC-AGRICO fails to pay when due
and payable or declared due and payable any of its liabilities to
WAREHOUSEMAN; (d) if a proceeding under the Bankruptcy Code shall be filed
by or against IMC-AGRICO; (e) if IMC-AGRICO shall make an assignment for
the benefit of creditors; provided, however, that IMC-AGRICO shall not be
deemed to be in default under subsections (a)-(c) of this Section 17 if
IMC-AGRICO remedies the event of default within thirty (30) days after
written notice from WAREHOUSEMAN of the existence of such event of default.
Upon the occurrence of an event of default by IMC-AGRICO under
this Agreement, WAREHOUSEMAN shall have the right, at its sole option, and
in addition to any other right or remedy available to WAREHOUSEMAN, to
terminate this Agreement by written notice.
If IMC-AGRICO shall be late in making any payment hereunder (other
than for payments which are the subject of a good faith dispute between the
parties, as to which no penalty shall accrue until the dispute has been
resolved), all late payments shall bear interest from the due date to the
date of payment in full at the rate of one and one-half percent (1.5%) per
month.
18. WAIVER: The waiver by either party hereto of any breach of or other
-------
default under this Agreement (or any earlier Agreement between the parties) by
the other party hereto shall not be deemed to be a waiver of any successive
breach of this Agreement. Each and every right, power and remedy may be excused
from time to time and so often and in such order as may be deemed expedient by
the party, and the exercise of any such right, power or remedy shall not be
deemed a waiver of the right to exercise at the same time or thereafter, any
other right, power or remedy.
19. BINDING EFFECT: This Agreement shall be binding upon and shall inure to
---------------
the benefit of the parties hereto and their respective successors and assigns;
provided that no party hereto shall assign, or subcontract any of its
obligations under, this Agreement in whole or in part without the prior written
consent of the other parties hereto, which consent shall not be unreasonably
withheld.
20. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
-----------------
between the parties relative to the transaction contemplated hereby and
supersedes any and all correspondence or other agreements whether written or
oral relating to the subject matter hereof.
21. AMENDMENTS: This Agreement may be amended only by written document
-----------
signed by duly authorized representatives or employees of each of the parties
hereto; provided, however, that any printed terms or conditions on warehouse
receipts or any other printed forms used by WAREHOUSEMAN in connection with its
performance hereunder shall not have the effect of amending this Agreement in
any respect unless specifically identified and accepted in writing as an
amendment of this Agreement by a duly authorized representative of IMC-AGRICO;
provided further, that the terms and conditions set forth herein shall be deemed
to supersede language contained in warehouse receipts or any other printed forms
used by WAREHOUSEMAN in connection with its performance hereunder.
22. FINANCING STATEMENTS: As reasonably required by IMC-AGRICO to protect
---------------------
and perfect its interest in its Product placed into storage hereunder,
WAREHOUSEMAN shall, at the request of IMC-AGRICO, join with IMC-AGRICO in
executing one or more financing statements (UCC-1 Form) pursuant to Article 9 of
the Uniform Commercial Code as enacted by the State in which WAREHOUSEMAN's
Facility is located for filing with the appropriate state and/or county
officials, and post signs as provided by IMC-AGRICO to identify IMC-AGRICO
Product as belonging to IMC-AGRICO.
23. PARAGRAPH HEADINGS: Paragraph headings have been inserted in the
-------------------
Agreement for convenience. If they conflict with text in the construction of
this Agreement, the text shall control.
24. NOTICES: Any notice under the Agreement shall be in writing and shall
--------
be delivered personally or by certified mail, return receipt request, postage
prepaid, as follows:
TO IMC-AGRICO: 0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, XX, 00000
TO WAREHOUSEMAN: _________________________
_________________________
_________________________
25. GOVERNING LAW: Without regard to principles of conflicts of laws, this
--------------
Agreement shall be construed in accordance with, and any and all disputes
arising under or out of this Agreement shall be governed by, the laws and
decisions of the State of ______________.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
---------------------------------
(WAREHOUSEMAN)
BY
-------------------------------
ITS
------------------------------
IMC-AGRICO COMPANY, a Delaware
general partnership.
By: IMC-AGRICO MP, INC.,
a Delaware corporation as
its managing general partner
BY
-------------------------------
ITS
------------------------------
"SCHEDULE A" TO STORAGE AND HANDLING AGREEMENT
----------------------------------------------
I. HANDLING PRODUCT
----------------
A. WAREHOUSEMAN shall not unload or load Product under adverse
weather conditions such as rain, snow, sleet, hail or drizzle if
unloading or loading stations are located in an exposed area.
B. WAREHOUSEMAN shall immediately advise IMC-AGRICO by
telephone and withhold unloading, pending inspection by IMC-AGRICO, if
any inbound shipments of Product show any evidence of damage or other
unsatisfactory condition. Demurrage caused by delay in unloading
pending inspection and instructions shall be for IMC-AGRICO's account.
C. WAREHOUSEMAN shall unload barges/railcars at a rate of
_________ net tons per eight-hour, weather-free day.
D. WAREHOUSEMAN shall screen and load bulk xxxxxx cars and/or
bulk trucks at the rate of ________ net tons per eight-hour
weather-free day, excluding Saturdays, Sundays and holidays.
E. WAREHOUSEMAN shall be responsible for demurrage if it fails
to meet the above minimum volume schedules, except if such failure is
due to causes reasonably beyond WAREHOUSEMAN's control.
II. SUPPLIES
--------
IMC-AGRICO shall supply and WAREHOUSEMAN shall receive, handle and
store, without charge, various receiving, shipping and inventory forms
necessary for the performance of WAREHOUSEMAN's obligation hereunder.
III. QUALITY CONTROL
---------------
WAREHOUSEMAN shall be certain at all times that Bulk Product is kept
clean and dry, and that various grades are kept separate in the
warehouse and free from adulteration or contamination by any
incompatible material.
IV. EQUIPMENT
---------
Equipment to be supplied by WAREHOUSEMAN shall include but not be
limited to Equipment suitable for receiving and unloading bulk material
from railcars and barges, and reloading to railcars or trucks.
V. STANDARD OF CARE
----------------
WAREHOUSEMAN shall perform the contracted services in a manner
consistent with that level of care and skill ordinarily exercised by
other warehousemen in similar circumstances. WAREHOUSEMAN shall take
reasonable efforts to protect Product from loss in quantity, damage,
contamination, adulteration, or pilferage.
VI. EXTENDED HOURS OF SERVICE
-------------------------
Normal hours of operation are ____ a.m. to _____ p.m., Monday through
Friday. During peak season, however, extended hours of service shall be
provided. These extended hours of service during peak season will be
provided at no additional cost or expense to IMC-AGRICO.
"SCHEDULE B" TO STORAGE AND HANDLING AGREEMENT
----------------------------------------------
FOR IMC-AGRICO PRODUCT
----------------------
CHARGES
-------
HANDLING IN-BULK $ 3 per ton
HANDLING OUT-BULK $ 3 per ton
Storage charges are included in the handling charges above. Compensation to
WAREHOUSEMAN for its performance of the following services shall be
included in the charges for storage and handling set out above:
Acknowledging of receipts of Product on behalf of IMC-AGRICO on inbound bills of
lading; ordering of transportation equipment for outbound shipments as
requested by IMC-AGRICO; in the case of bulk shipments, requesting the
weighing of outbound materials and providing IMC-AGRICO with completed
copies of certified weight certificates; preparing bills of lading and
other necessary documents for outbound shipments; maintaining adequate
records relating to receipts, shipments, purchases by WAREHOUSEMAN and
inventory in reasonable detail as IMC-AGRICO shall require; and
advising IMC-AGRICO as of the beginning of each working day of all
shipments of Product handled on the immediately preceding working day.
IMC-AGRICO may supply WAREHOUSEMAN, for its use only during the term of
this Agreement, with a personal computer interface system ("PC
Interface"). In such case WAREHOUSEMAN shall use the PC Interface to
monitor all inventories of IMC-AGRICO Product by daily entering all
additions to and subtractions from inventories, in accordance with
IMC-AGRICO's instructions.
Exhibit B
STORAGE AND HANDLING AGREEMENT
THIS AGREEMENT made this _____ day of _____________, 1999 between between
XXXXXXX-XXXXX, INC., a Delaware Corporation, having its principal office at
_____________________________________________________________________________
Corporation, having its principal office at
_____________________________________________________________________________
(hereinafter called "WAREHOUSEMAN") and IMC Kalium Ltd., a Delaware
Corporation, having its principal office at 0000 Xxxxxxxx Xxxx, Xxxxx X-000,
Xxxxxxxxxxx, XX, 00000 (hereinafter called "IMC KALIUM")
W I T N E S S E T H:
WHEREAS, IMC KALIUM desires to have certain of its Product (as hereinafter
defined) stored and handled at______________________________ and WAREHOUSEMAN is
willing to provide such storage and handling.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set out herein, the parties agree as follows:
1. TERM: The initial term of this Agreement shall begin on the date hereof
-----
and shall end on the first anniversary of the date hereof. This Agreement shall
automatically renew for an indefinite number of successive one (1) year renewal
terms at the end of the initial term and each such renewal term unless and until
terminated by either WAREHOUSEMAN or IMC KALIUM upon written notice to the
other, effective at the end of the initial term or the then current renewal
term, delivered not less than sixty (60) days before the end of the initial term
or the then current renewal term. The rates, charges and other terms and
conditions during any renewal term shall be the same as the rates, charges and
other terms and conditions during the term immediately preceding that renewal
term unless otherwise agreed by WAREHOUSEMAN and IMC KALIUM in writing not less
than sixty (60) days before the beginning of that renewal term.
2. PROVISIONS OF FACILITIES: WAREHOUSEMAN shall provide adequate segregated
-------------------------
storage space for __________ tons of IMC KALIUM's ______________ (hereinafter
called "Product") at WAREHOUSEMAN's warehouse facility located in _________
(City or Town), ________(State or Province) (hereinafter called the "Facility");
WAREHOUSEMAN shall not store IMC KALIUM's Product at any other location without
IMC KALIUM's prior written consent. If such consent is
provided, such other locations shall be the designated "Facility" hereunder.
WAREHOUSEMAN shall not commingle IMC KALIUM's Product with any other product
without IMC KALIUM's prior written consent.
3. STORAGE AND HANDLING: IMC KALIUM's Product received by WAREHOUSEMAN and
---------------------
stored hereunder shall be delivered to WAREHOUSEMAN by __________________ and
shall be shipped out by __________________. WAREHOUSEMAN shall be responsible
for IMC KALIUM's Product from the time it arrives at the Facility until such
time as Product is loaded for shipment from the Facility. WAREHOUSEMAN agrees
that it will follow, in all material respects, the procedures described in
Schedule A attached hereto and incorporated herein by reference in the storage
and handling of IMC KALIUM's Product.
4. CHARGES: WAREHOUSEMAN shall charge IMC KALIUM for contracted services
--------
according to Schedule B attached hereto and incorporated herein by reference.
The charges for first month's storage and handling shall be paid by IMC
KALIUM upon receipt by IMC KALIUM of a proper invoice from WAREHOUSEMAN, based
on origin inbound bills of lading. Subsequent storage and other charges will be
paid monthly upon receipt by IMC KALIUM of a proper invoice from WAREHOUSEMAN
detailing the charges for the preceding month. All invoices are due and payable
within thirty (30) days following the invoice date provided that IMC KALIUM need
not pay disputed charges pending resolution of said dispute. WAREHOUSEMAN shall
not assert against IMC KALIUM any warehouseman's lien on IMC KALIUM's Product
stored under this Agreement, including any such lien arising under Section 7-209
of the Uniform Commercial Code, except for a warehouseman's lien limited in
amount to those accrued and unpaid warehouse fees owing under this Agreement and
invoiced by WAREHOUSEMAN to IMC KALIUM as hereinabove provided.
5. ACCESS TO FACILITY: IMC KALIUM's representatives shall have full access
-------------------
to the Facility at reasonable intervals during normal working hours in order to
inspect the Facility, take inventory of IMC KALIUM's Product stored therein, and
examine all of WAREHOUSEMAN's records pertaining to IMC KALIUM's Product.
6. TITLE: IMC KALIUM shall retain title to all IMC KALIUM Product received
------
by WAREHOUSEMAN. WAREHOUSEMAN's responsibility for IMC KALIUM's Product shall be
limited exclusively to the supplying storage space and handling of Product, as
specified in Schedule A attached hereto and incorporated herein by reference.
7. SHRINKAGE: WAREHOUSEMAN's responsibility for IMC KALIUM's Product shall
----------
be limited exclusively to the supplying of storage space and careful handling of
the Product as specified in Schedule A attached hereto; and to shipping out,
pursuant to Sections 3 and 8 hereof, not less than 99% of the quantity of each
Product received by WAREHOUSEMAN. It is understood that the above 1% shrinkage
allowance shall be based upon actual shrinkage and WAREHOUSEMAN shall not be
entitled to retain IMC KALIUM's Product up to the allowable shrinkage. Shrinkage
shall be determined by comparison of origin inbound certified weight receipts
and outbound certified weight receipts, when physical inventory is at a zero
level. WAREHOUSEMAN shall be responsible for any Product loss or damage in
excess of the allowable shrinkage. Payment for shrinkage in excess of that
provided above shall be at IMC KALIUM's current price at mine or production
point, plus transportation from such mine or production point to WAREHOUSEMAN's
Facility, plus WAREHOUSEMAN's inbound handling charge.
Settlement for shrinkage shall be made each time inventory reaches a zero
level, which such action shall be taken not less than once every contract year,
and there shall be no carry-over from settlement period to settlement period of
unused shrinkage allowance. IMC KALIUM shall not be obligated to pay
WAREHOUSEMAN for any accumulated, unused credit which remains after settlement
hereunder on termination.
8. LOADING INSTRUCTIONS: On written instructions from IMC KALIUM,
---------------------
WAREHOUSEMAN shall use its reasonable best efforts to load each truck and/or
railcar to maximum legal capacity to gain the minimum tariff rate provided for
said truck and/or railcar. Any costs or penalties associated with overloads
shall be for the account of WAREHOUSEMAN.
9. INSURANCE: IMC KALIUM agrees to insure or self-insure its Product stored
----------
by WAREHOUSEMAN against all risks covered by IMC KALIUM's Fire and Extended
Coverage Insurance. WAREHOUSEMAN shall, at its own expense, maintain insurance
as follows for the terms of this Agreement:
A. Workers' Compensation Insurance as prescribed by law and
-------------------------------
Employer's Liability insurance with a limit per accident of not less than
$500,000. If WAREHOUSEMAN's workers' compensation liability is required to
be insured with a state fund, WAREHOUSEMAN shall furnish IMC KALIUM with
evidence that is satisfactory to IMC KALIUM that WAREHOUSEMAN is so
insured.
B. All Risk Comprehensive General Liability Insurance covering
--------------------------------------------------
public liability, property damage insurance, with respect to the Facility,
including a contractual liability provision to cover the liability assumed
by WAREHOUSEMAN
under this Agreement and automobile liability, all with a combined single
limit for bodily injury and property damage liability of not less than
$1,000,000 with respect to any one occurrence.
WAREHOUSEMAN shall deliver to IMC KALIUM Certificates of Insurance evidencing
the issuance of the required policies and the fact that they are in force, and
stating that such policies will not be canceled or materially changed without
sixty (60) days prior notice to IMC KALIUM. Such insurance policies shall be
obtained from companies satisfactory to IMC KALIUM.
10. SUBCONTRACTOR INSURANCE: If any of WAREHOUSEMAN's obligations under
------------------------
this Agreement are, with IMC KALIUM's prior written consent, subcontracted,
WAREHOUSEMAN shall require each subcontractor to maintain insurance as described
in Section 9 hereof and shall provide IMC KALIUM with evidence of such
insurance.
11. LIABILITY:
----------
A. IMC KALIUM, its partners and/or affiliates (including but not
limited to IMC Global Inc. and IMC Global Operations Inc.), and/or their
agents, officers, directors, attorneys and/or employees, shall not be
responsible or liable to WAREHOUSEMAN or to any of WAREHOUSEMAN's agents,
including WAREHOUSEMAN's insurance carrier, for any workers' compensation
benefits paid to WAREHOUSEMAN's employees. WAREHOUSEMAN waives any claims,
liens, causes of action, or any other rights it or its agents, including
insurance carriers, may have against IMC KALIUM, its partners and/or
affiliates (including but not limited to IMC Global Inc. and IMC Global
Operations Inc.), and/or their agents, officers, directors, attorneys
and/or employees, for sums paid or to be paid by IMC KALIUM, relating to
any payments made to WAREHOUSEMAN's employees by WAREHOUSEMAN pursuant to
its workers' compensation obligations. WAREHOUSEMAN also waives any claims,
liens, causes of action, or any other rights it or its agents, including
insurance carriers, may have against IMC KALIUM, its partners and/or
affiliates (including but not limited to IMC Global Inc. and IMC Global
Operations Inc.), and/or their agents, officers, directors, attorneys
and/or employees, for any sums paid or to be paid by IMC KALIUM, relating
to any actions or claims by WAREHOUSEMAN's employees against IMC KALIUM,
its partners and/or affiliates (including but not limited to IMC Global
Inc. and IMC Global Operations Inc.), and/or their agents, officers,
directors, attorneys and/or employees. IN NO EVENT SHALL IMC KALIUM, ITS
PARTNERS AND/OR AFFILIATES, AND/OR THEIR AGENTS, OFFICERS, DIRECTORS,
ATTORNEYS AND/OR EMPLOYEES, BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER BASED UPON NEGLIGENCE, BREACH OF CONTRACT,
BREACH OF WARRANTY, OR OTHERWISE.
B. WAREHOUSEMAN, its partners and/or affiliates, and/or their
agents, officers, directors, attorneys and/or employees, shall not be
responsible or liable to IMC KALIUM or to any of IMC KALIUM's agents,
including IMC KALIUM's insurance carrier, for any workers' compensation
benefits paid to IMC KALIUM's employees. IMC KALIUM waives any claims,
liens, causes of action, or any other rights it or its agents, including
insurance carriers, may have against WAREHOUSEMAN, its partners and/or
affiliates, and/or their agents, officers, directors, attorneys and/or
employees, for sums paid or to be paid by WAREHOUSEMAN, relating to any
payments made to IMC KALIUM's employees by IMC KALIUM pursuant to its
workers' compensation obligations. IMC KALIUM also waives any claims,
liens, causes of action, or any other rights it or its agents, including
insurance carriers, may have against WAREHOUSEMAN, its partners and/or
affiliates, and/or their agents, officers, directors, attorneys and/or
employees, for any sums paid or to be paid by WAREHOUSEMAN, relating to any
actions or claims by IMC KALIUM's employees against WAREHOUSEMAN, its
partners and/or affiliates, and/or their agents, officers, directors,
attorneys and/or employees. IN NO EVENT SHALL WAREHOUSEMAN, ITS PARTNERS
AND/OR AFFILIATES, AND/OR THEIR AGENTS, OFFICERS, DIRECTORS, ATTORNEYS
AND/OR EMPLOYEES, BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED UPON NEGLIGENCE, BREACH OF CONTRACT, BREACH OF
WARRANTY, OR OTHERWISE.
12. INDEMNIFICATION:
----------------
A. WAREHOUSEMAN agrees to indemnify, defend, and hold harmless IMC
KALIUM, its partners and affiliates (including but not limited to IMC
Global Inc. and IMC Global Operations Inc.), and their agents, insurers,
officers, attorneys, directors, and employees, from and against any and all
liabilities, losses, expenses, damages, demands and claims, including third
party claims for contribution, attorneys' fees, arising out of injury or
alleged injury to any persons (including death), damage or alleged damage
to any property (including IMC KALIUM's Product stored under this
Agreement), any adulteration, misformulation or contamination of IMC's raw
materials or finished goods, any violation or alleged violation of any
environmental, health or safety laws, whether federal, state or local, or
any "release" or "threatened release" of any "hazardous substance" (as
those terms are defined under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. xx.xx. 9601 et seq. or the
-------
Resource Conservation and Recovery Act, 42 U.S.C. xx.xx. 6901 et seq.)
-------
resulting
from or occurring in connection with WAREHOUSEMAN's possession or
handling of any IMC KALIUM Product or other performance by WAREHOUSEMAN
under this Agreement but only if due to the negligence or willful act or
omission of WAREHOUSEMAN, its employees, agents, representatives or
subcontractors. The parties intend this provision to be construed broadly.
B. IMC KALIUM agrees to indemnify, defend, and hold harmless
WAREHOUSEMAN, its partners and affiliates, and their agents, insurers,
officers, attorneys, directors, and employees, from and against any and all
liabilities, losses, expenses, damages, demands and claims, including third
party claims for contribution, attorneys' fees, arising out of injury or
alleged injury to any persons (including death), damage or alleged damage
to any property, any adulteration, misformulation or contamination of IMC
KALIUM's raw materials or finished goods, any violation or alleged
violation of any environmental, health or safety laws, whether federal,
state or local, or any "release" or "threatened release" of any "hazardous
substance" (as those terms are defined under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. xx.xx.
9601 et seq. or the Resource Conservation and Recovery Act, 42 U.S.C.
------
xx.xx. 6901 et seq.) resulting from or occurring in connection with IMC
------
KALIUM's production or handling of any its Product or other performance by
IMC KALIUM under this Agreement. The parties intend this provision to be
construed broadly.
13. INDEPENDENT CONTRACTOR: In the performance of the Agreement,
-----------------------
WAREHOUSEMAN will not be under IMC KALIUM's control as to the persons engaged by
WAREHOUSEMAN to assist in said performance, or to the means and methods employed
by WAREHOUSEMAN in accomplishing said performance, WAREHOUSEMAN's responsibility
to IMC KALIUM being only for results in accordance with arrangements set forth
herein. All employees, agents, or other representatives engaged by WAREHOUSEMAN
in connection with the performance of this Agreement will be of WAREHOUSEMAN's
own account, and at WAREHOUSEMAN's own expense, and the terms and tenure and
hours of their employment and their wages or salaries shall be under
WAREHOUSEMAN's exclusive control and direction at all times.
It is further understood and agreed by the parties hereto that
WAREHOUSEMAN is, and for all purposes shall be considered, an independent
contractor and fully and exclusively liable: (a) for the payment of any and all
taxes now or hereafter imposed by any governmental authority which are measured
by wages, salaries, or commissions paid to persons in its employment; (b) for
any accident to persons or property that may occur at the Facility or on other
premises of WAREHOUSEMAN; and
(c) to procure and maintain such workers' compensation insurance covering its
employees as may be required by law.
14. COMPLIANCE WITH LAWS:
---------------------
A. WAREHOUSEMAN and its facilities will comply in all material
respects with any and all applicable laws, statutes, regulations, rules,
ordinances, and orders (including but not limited to environmental, health
and safety laws and regulations). WAREHOUSEMAN agrees to provide prompt
notice to IMC KALIUM of any inspection carried out by any federal, state,
or local official to determine WAREHOUSEMAN'S (or its facilities)
compliance with such requirements. (Such notice will be made by __________
to __________ and will be followed by written notification to ___________.)
In that regard, should any fines, penalties, or like impositions be levied
by reason of WAREHOUSEMAN's failure to fulfill its obligations under this
Section 14, WAREHOUSEMAN does specifically agree that it shall have sole
and complete responsibility therefor and does hereby release, discharge,
indemnify and hold IMC KALIUM harmless therefrom to the extent caused by
WAREHOUSEMAN'S breach. WAREHOUSEMAN agrees to promptly inform IMC KALIUM of
all allegations of any adverse health or environmental effect associated
with release of or exposure to IMC KALIUM'S raw materials or finished goods
subject to this Agreement (including but not limited to, accidental
environmental releases of IMC KALIUM'S products or reports from
WAREHOUSEMAN'S employees of such illnesses or injuries).
B. IMC KALIUM and its facilities will comply in all material
respects with any and all applicable laws, statutes, regulations, rules,
ordinances, and orders (including but not limited to environmental, health
and safety laws and regulations). IMC KALIUM agrees to provide prompt
notice to WAREHOUSEMAN of any inspection carried out by any federal, state,
or local official to determine IMC KALIUM'S (or its facilities) compliance
with such requirements. (Such notice will be made by __________ to
__________ and will be followed by written notification to ___________.) In
that regard, should any fines, penalties, or like impositions be levied by
reason of IMC KALIUM's failure to fulfill its obligations under this
Section 14, IMC KALIUM does specifically agree that it shall have sole and
complete responsibility therefor and does hereby release, discharge,
indemnify and hold WAREHOUSEMAN harmless therefrom to the extent caused by
IMC KALIUM'S breach. IMC KALIUM agrees to promptly inform WAREHOUSEMAN of
all allegations of any adverse health or environmental effect associated
with release of or exposure to WAREHOUSEMAN'S raw materials or finished
goods subject to this Agreement (including but not limited to, accidental
environmental releases of
WAREHOUSEMAN'S products or reports from IMC KALIUM'S employees of such
illnesses or injuries).
15. TAXES AND FEES: All taxes assessed against WAREHOUSEMAN for the
---------------
operation of its warehousing business, as well as the cost of any permits and
licenses for said business, shall be for the account of WAREHOUSEMAN. IMC KALIUM
shall pay all ad valorem taxes which may be levied against the Product stored
for IMC KALIUM.
16. EXCUSE OF NONPERFORMANCE: Neither IMC KALIUM, its partners and
-------------------------
affiliates, and/or their agents, officers, directors, attorneys and/or
employees, nor WAREHOUSEMAN, and/or its agents, officers, directors and/or
employees, shall be responsible to the other for any failure to perform
hereunder as a result of any cause beyond its reasonable control including,
without limitation, acts of God, the public enemy, any accident, explosion,
fire, storm, earthquake, flood, drought, strikes, lockouts, labor disputes,
riots, sabotage, war (whether or not declared) or civil unrest, failure or delay
of transportation beyond the reasonable control of the party affected thereby,
inability to obtain supplies, equipment, fuel, power, labor or other operational
necessity beyond the reasonable control of the party effected thereby, or
interruption or curtailment of power supply, if the party claiming such
inability to perform shall have promptly notified the other party, by telephone
and by writing, of the existence and expected duration thereof and the estimated
effect thereof on its ability to perform hereunder, and shall have proceeded
diligently to correct such inability to perform to the extent reasonably
possible. Should WAREHOUSEMAN fail to perform or become unable to perform
loading or unloading or storage services for IMC KALIUM as a result of any such
cause beyond its reasonable control, IMC KALIUM will be entitled to an abatement
of any storage and guaranteed throughput charges hereunder, calculated pro rata
on the respective storage or guaranteed throughput charge for the period of the
failure. The party claiming an inability to perform shall promptly notify the
other party when such inability has ceased to affect its ability to perform
hereunder.
Neither IMC KALIUM nor WAREHOUSEMAN shall be required to resolve labor
disputes or disputes with suppliers of raw materials, supplies, equipment, fuel
or power, except in accordance with such party's business judgment as to its
best interest. Nevertheless, in the event of a work stoppage at the Facility due
to strike or other labor difficulty, WAREHOUSEMAN will make all reasonable
efforts to handle IMC KALIUM's Product with WAREHOUSEMAN's supervisory help.
17. DEFAULT:
--------
A. Any one or more of the following events shall constitute a
default by WAREHOUSEMAN under this Agreement: (a) if WAREHOUSEMAN fails or
neglects to perform, keep or observe, in all material respects, any term,
provision, condition, covenant, warranty or representation contained in
this Agreement, which term, provision, condition, covenant, warranty or
representation is required to be performed, kept or observed by
WAREHOUSEMAN; (b) if any representation, statement, or warranty made or
furnished by or on behalf of WAREHOUSEMAN is not true and correct in all
material respects when made; (c) if WAREHOUSEMAN fails to pay when due and
payable or declared due and payable any of its liabilities to IMC KALIUM;
(d) if all or any of WAREHOUSEMAN's assets are attached, seized, subjected
to a writ or distress warrant, or are levied upon, or come within the
possession of any receiver, trustee, custodian or assignee for the benefit
of creditors; (e) if a proceeding under the Bankruptcy Code shall be filed
by or against WAREHOUSEMAN; (f) if WAREHOUSEMAN shall make an assignment
for the benefit of creditors; (g) if any proceeding is filed or commenced
by or against WAREHOUSEMAN for its dissolution or liquidation; (h) if a
notice of lien, levy or assessment is filed of record with respect to all
or any of WAREHOUSEMAN's assets by the United States or any department,
agency or instrumentality thereof, or by any state, county, municipality or
other governmental agency, or if any taxes or debts owing at any time or
times hereafter to any one or more of them becomes a lien, whether xxxxxx
or otherwise, upon all or any of WAREHOUSEMAN's assets; or (i) if a
judgment or other claim becomes a lien or encumbrance upon all or any of
WAREHOUSEMAN's assets; provided, however, that WAREHOUSEMAN shall not be
deemed to be in default under subsections (a)-(d) or (g)-(i) of this
Section 17 if WAREHOUSEMAN remedies the event of default within thirty (30)
days after written notice from IMC KALIUM of the existence of such event of
default.
Upon the occurrence of an event of default by WAREHOUSEMAN under
this Agreement, IMC KALIUM shall have the right, at its sole option, and in
addition to any other right or remedy available to IMC KALIUM, to terminate
this Agreement by written notice. In addition, IMC KALIUM shall have the
right to take possession of all Product in which it retains title or other
interest hereunder in a manner permitted by law without liability for
trespass or for damages. Any re-entry, resumption, or possession of the
Facility by IMC KALIUM shall in no event be deemed to be a surrender of
this Agreement or a waiver of any right or remedy of IMC KALIUM under this
Agreement.
B. Any one or more of the following events shall constitute a
default by IMC KALIUM under this Agreement: (a) if IMC KALIUM fails or
neglects to perform, keep or observe, in all material respects, any term,
provision, condition, covenant, warranty or representation contained in
this Agreement, which term, provision, condition, covenant, warranty or
representation is required to be performed, kept or observed by IMC KALIUM;
(b) if any representation, statement, or warranty
made or furnished by or on behalf of IMC KALIUM is not true and correct in
all material respects when made; (c) if IMC KALIUM fails to pay when due
and payable or declared due and payable any of its liabilities to
WAREHOUSEMAN; (d) if a proceeding under the Bankruptcy Code shall be filed
by or against IMC KALIUM; (e) if IMC KALIUM shall make an assignment for
the benefit of creditors; provided, however, that IMC KALIUM shall not be
deemed to be in default under subsections (a)-(c) of this Section 17 if IMC
KALIUM remedies the event of default within thirty (30) days after written
notice from WAREHOUSEMAN of the existence of such event of default.
Upon the occurrence of an event of default by IMC KALIUM under
this Agreement, WAREHOUSEMAN shall have the right, at its sole option, and
in addition to any other right or remedy available to WAREHOUSEMAN, to
terminate this Agreement by written notice.
If IMC KALIUM shall be late in making any payment hereunder (other
than for payments which are the subject of a good faith dispute between the
parties, as to which no penalty shall accrue until the dispute has been
resolved), all late payments shall bear interest from the due date to the
date of payment in full at the rate of one and one-half percent (1.5%) per
month.
18. WAIVER: The waiver by either party hereto of any breach of or other
-------
default under this Agreement (or any earlier Agreement between the parties) by
the other party hereto shall not be deemed to be a waiver of any successive
breach of this Agreement. Each and every right, power and remedy may be excused
from time to time and so often and in such order as may be deemed expedient by
the party, and the exercise of any such right, power or remedy shall not be
deemed a waiver of the right to exercise at the same time or thereafter, any
other right, power or remedy.
19. BINDING EFFECT: This Agreement shall be binding upon and shall inure to
---------------
the benefit of the parties hereto and their respective successors and assigns;
provided that no party hereto shall assign, or subcontract any of its
obligations under, this Agreement in whole or in part without the prior written
consent of the other parties hereto, which consent shall not be unreasonably
withheld.
20. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
-----------------
between the parties relative to the transaction contemplated hereby and
supersedes any and all correspondence or other agreements whether written or
oral relating to the subject matter hereof.
21. AMENDMENTS: This Agreement may be amended only by written document
-----------
signed by duly authorized representatives or employees of each of the parties
hereto; provided, however, that any printed terms or conditions on warehouse
receipts or any other printed forms used by WAREHOUSEMAN in connection with its
performance hereunder shall not have the effect of amending this Agreement in
any respect unless specifically identified and accepted in writing as an
amendment of this Agreement by a duly authorized representative of IMC KALIUM;
provided further, that the terms and conditions set forth herein shall be deemed
to supersede language contained in warehouse receipts or any other printed forms
used by WAREHOUSEMAN in connection with its performance hereunder.
22. FINANCING STATEMENTS: As reasonably required by IMC KALIUM to protect
---------------------
and perfect its interest in its Product placed into storage hereunder,
WAREHOUSEMAN shall, at the request of IMC KALIUM, join with IMC KALIUM in
executing one or more financing statements (UCC-1 Form) pursuant to Article 9 of
the Uniform Commercial Code as enacted by the State in which WAREHOUSEMAN's
Facility is located for filing with the appropriate state and/or county
officials, and post signs as provided by IMC KALIUM to identify IMC KALIUM
Product as belonging to IMC KALIUM.
23. PARAGRAPH HEADINGS: Paragraph headings have been inserted in the
-------------------
Agreement for convenience. If they conflict with text in the construction of
this Agreement, the text shall control.
24. NOTICES: Any notice under the Agreement shall be in writing and shall
--------
be delivered personally or by certified mail, return receipt request, postage
prepaid, as follows:
TO IMC KALIUM: 0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, XX, 00000
TO WAREHOUSEMAN: ---------------------------------
---------------------------------
---------------------------------
25. GOVERNING LAW: Without regard to principles of conflicts of laws, this
--------------
Agreement shall be construed in accordance with, and any and all disputes
arising under or out of this Agreement shall be governed by, the laws and
decisions of the State of ______________.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
-------------------------------------
(WAREHOUSEMAN)
BY
-----------------------------------
ITS
----------------------------------
IMC KALIUM LTD., a
BY
-----------------------------------
ITS
----------------------------------
"SCHEDULE A" TO STORAGE AND HANDLING AGREEMENT
----------------------------------------------
I. HANDLING PRODUCT
----------------
A. WAREHOUSEMAN shall not unload or load Product under adverse
weather conditions such as rain, snow, sleet, hail or drizzle if
unloading or loading stations are located in an exposed area.
B. WAREHOUSEMAN shall immediately advise IMC KALIUM by
telephone and withhold unloading, pending inspection by IMC KALIUM, if
any inbound shipments of Product show any evidence of damage or other
unsatisfactory condition. Demurrage caused by delay in unloading
pending inspection and instructions shall be for IMC KALIUM's account.
C. WAREHOUSEMAN shall unload barges/railcars at a rate of
_________ net tons per eight-hour, weather-free day.
D. WAREHOUSEMAN shall screen and load bulk xxxxxx cars and/or
bulk trucks at the rate of ________ net tons per eight-hour
weather-free day, excluding Saturdays, Sundays and holidays.
E. WAREHOUSEMAN shall be responsible for demurrage if it fails
to meet the above minimum volume schedules, except if such failure is
due to causes reasonably beyond WAREHOUSEMAN's control.
II. SUPPLIES
--------
IMC KALIUM shall supply and WAREHOUSEMAN shall receive, handle and
store, without charge, various receiving, shipping and inventory forms
necessary for the performance of WAREHOUSEMAN's obligation hereunder.
III. QUALITY CONTROL
---------------
WAREHOUSEMAN shall be certain at all times that Bulk Product is kept
clean and dry, and that various grades are kept separate in the
warehouse and free from adulteration or contamination by any
incompatible material.
IV. EQUIPMENT
---------
Equipment to be supplied by WAREHOUSEMAN shall include but not be
limited to Equipment suitable for receiving and unloading bulk material
from railcars and barges, and reloading to railcars or trucks.
V. STANDARD OF CARE
----------------
WAREHOUSEMAN shall perform the contracted services in a manner
consistent with that level of care and skill ordinarily exercised by
other warehousemen in similar circumstances. WAREHOUSEMAN shall take
reasonable efforts to protect Product from loss in quantity, damage,
contamination, adulteration, or pilferage.
VI. EXTENDED HOURS OF SERVICE
-------------------------
Normal hours of operation are ____ a.m. to _____ p.m., Monday through
Friday. During peak season, however, extended hours of service shall be
provided. These extended hours of service during peak season will be
provided at no additional cost or expense to IMC KALIUM.
"SCHEDULE B" TO STORAGE AND HANDLING AGREEMENT
----------------------------------------------
FOR IMC KALIUM PRODUCT
----------------------
CHARGES
-------
HANDLING IN-BULK $ 3 per ton
HANDLING OUT-BULK $ 3 per ton
Storage charges are included in the handling charges above. Compensation to
WAREHOUSEMAN for its performance of the following services shall be
included in the charges for storage and handling set out above:
Acknowledging of receipts of Product on behalf of IMC KALIUM on inbound bills of
lading; ordering of transportation equipment for outbound shipments as
requested by IMC KALIUM; in the case of bulk shipments, requesting the
weighing of outbound materials and providing IMC KALIUM with completed
copies of certified weight certificates; preparing bills of lading and
other necessary documents for outbound shipments; maintaining adequate
records relating to receipts, shipments, purchases by WAREHOUSEMAN and
inventory in reasonable detail as IMC KALIUM shall require; and
advising IMC KALIUM as of the beginning of each working day of all
shipments of Product handled on the immediately preceding working day.
IMC KALIUM may supply WAREHOUSEMAN, for its use only during the term of
this Agreement, with a personal computer interface system ("PC
Interface"). In such case WAREHOUSEMAN shall use the PC Interface to
monitor all inventories of IMC KALIUM Product by daily entering all
additions to and subtractions from inventories, in accordance with IMC
KALIUM's instructions.
SCHEDULE 1
Products
--------
Kalium
------
K-MAG Standard
K-MAG Granular
SOP Standard
SOP Granular
MOP Standard
MOP Granular/Coarse
Agrico
------
DAP
GMAP
GTSP
SMAP (powdered)
PFS (phos. acid)
Phosphate Rock
SCHEDULE 2
**
**These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
SCHEDULE 3
**
**These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
SCHEDULE 4
Requirements
------------
See attached list of "ship to" points for retail business.
See attached list of "ship from" points for wholesale business.
Schedule 4
Agribusiness Retail Sites/"Ship to" Points
Name State DAP GMAP MAP GTSP K-Mag MOP SOP
--------------------------------------------------------------------------------------------------------
Aliceville AL x x x x
Dothan AL x x x x
Florence AL x x x x x x x
Hartford AL x x x
Montgomery AL x x
Robertsdale AL x x x
Indiantown FL x x x x
Xxx FL x x x
Xxxxxx FL x x x
Mulberry FL x x x x x x x
Princetown FL x
New Wales FL x x x
Americus GA x x x
Athen GA x x x
Augusta GA x
Bainbridge GA x
Donaldsonville GA x x x
Jesup GA x
LaFayette GA x x
Meigs GA x x
Moultrie GA x x
Oglethorpe GA x x x x
Swainsboro GA x x x x
Sylvester GA x x x x
Tifton GA x x x
Tifton GA x x
Baileyville IL x x
Clay City IL x x
Danville IL x x x
Edgewood IL x x
Greenfield IL x x x
Greenview IL x x
Harvel IL x x x x
Harvel IL x x
Iuka IL x x
Kansas IL x x
Lanark IL x
Litchfield IL x x x
Marseilles IL x
Xxxxx City IL x x
May's Station IL x x
Xxxxxxx IL x
Morrisonville IL x x x
Mt. Erie IL x
Neoga IL x x x
New Memphis IL x x x
Nokomis IL x
Paris IL x x x
Stolletown IL x x x
Toledo IL x x x
Virden IL x x x
Louisville IL x
Arcadia IN x x x
Bargersville IN x x x
Belle Union IN x x
Schedule 4
Agribusiness Retail Sites
Name State DAP GMAP MAP GTSP K-Mag MOP SOP
--------------------------------------------------------------------------------------------------------
Blackhawk IN x x
Boston IN x
Converse IN x x x x
Crown Center IN x
Xxxx IN x x
Xxxxxx IN x x x
Delphi IN x x x
Fairmount IN x x x
Fillmore IN x x
Xxxxxx IN x x
Greentown IN x x
Jasper IN x x x
Xxxxxxx IN x
XxXxxxxxxx IN
Liberty IN x x
Mentone IN x x x
Miami IN x x x
Middlefork IN x x x
Mt. Xxxxxx IN x x x x
Mulberry IN x x x
New Brunswick IN x x x
New Harmony IN x x
New Lebanon IN x x
New Xxxxx IN x x
North Salem IN x x x
Oaktown IN x x x x
Otwell IN x x
Petersburg IN x x x
Poseyville IN x x
Reiffsburg IN x
Roachdale IN x x x
Roann IN x x
Rushville IN x x x x
Saratoga IN x x
Shelburn IN x x x
Straughn IN x x x
Xxxxxx IN x x x
Washington IN x x
Wheatland IN x x x
Williamsburg IN x x x
Adairville KY x x x
Fancy Farm KY x x
Franklin KY x x x
Xxxxxxx KY x x x x x
Xxxxxx KY x x x
Murray KY x x x x x
Sedilia KY x x x
Utica KY x x x
Xxxxxxxxx LA x x
Ann Arbor MI x x x
Blissfield MI x
Cass City MI x x x
Deckerville MI x x
Dundee MI x x x
Xxxxxxxx MI x x x
Schedule 4
Agribusiness Retail Sites
Name State DAP GMAP MAP GTSP K-Mag MOP SOP
--------------------------------------------------------------------------------------------------------
Greenville MI x x
Holland MI x x x x
Xxxxxx MI x x
Mendon MI x x x
Morenci MI x x
Xxxx MI x x x
North Branch MI x x
Pompeii MI x x x
Riga MI x x x
St. Xxxxx MI x x x
Tecumseh MI x x x
Bowling Green MO x x x
Xxxxxxxx MO x x x
Xxxxxx MS x x x
Tupelo MS x x x x
Vicksburg MS x
Dunn NC x x x x
Elizabeth City NC x x x
Harrells NC x
Xxxxxxx NC x
Shelby NC x x x
Waynesville NC x x x x x
Wilson NC x x x
Winston Salem NC x x x x x x
Ansonia OH x x x
Ashville OH x x x
Belle Center OH x x x
Bellevue OH x x x
Botkins OH x x x
Bradford OH x x x x
Campbellstown OH x
Xxxxx OH x x
Cincinnati OH x
Circleville OH x
Columbus OH x x x x
Decatur OH x x
Delphos OH x x x
Delta OH x x
Dunkirk OH x
Eaton OH x x
Findlay OH x x x
Frankfort OH x
Hamler OH x x x
Highland OH x x x
Hillsboro OH x
Holgate OH x x
Jeffersonville OH x
Kirkwood OH x x x
Leesburg OH x
Leipsic OH x x x
London OH x x x
Midland City OH x x
Mowrystown OH x
Mt. Gilead OH x x
Mt. Sterling OH x
Schedule 4
Agribusiness Retail Sites
Name State DAP GMAP MAP GTSP K-Mag MOP SOP
--------------------------------------------------------------------------------------------------------
New Holland OH x
Ottawa OH x
Ottoville OH x x x
Polk OH x x x
Shandon OH x x
Springfield OH x
Xxxxxxxx OH x x x
Troy OH x x
Unionville OH x
Urbana OH x x x
Washington C.H. OH x x x x x
Waynesfield OH x x x
West Manchester OH x x x
Hartsville SC x x x x x
Orangeburg SC x x x x x
Starr SC x x
Clarksville TN x
Ethride TN x x
Huntindon TN x
Jackson TN x x
Lawrenceburg TN x
Palmersville TN x
Paris TN x
Springfield TN x
Yorkville TN x x
Xxxxxxx WI x x x x
Xxxxxxxx WI x x
Schedule 4
"Ship from" Points
Wholesale: Supply Sources -
----------
P(2)O(5)
----------------------------------------------------------
Source
------
DAP GTSP GMAP
---------------------------------
New Wales, FL x x x
Fort Madison, IA x x x
Granite City, IL x
Xxxxxx, IL x x x
Delphi, IN x x
Henderson, KY x x x
Melbourne, KY x x
Murray, KY x
Donaldsonville/Xxxx, LA x x x
Brunswick, MO x x x
K(2)O
----------------------------------------------------------
Source
------
K-Mag MOP SOP
---------------------------------
Carlsbad, NM x x x
Canada x
Minneapolis, MN x
Wildwood, FL x
Tampa, FL x x x
Mulberry, FL x
Murray, KY x x
Melbourne, KY x x
Schedule 4
Source
------
K-Mag MOP SOP
---------------------------------
Mount Xxxxxx, IN x x
Petersburg, IN x
Jeffersonville, IN x
Xxxxxxxxxx Xxxxx Xxxxx, XX x x
Xxxx Xxxxxxxxx, XX x
Brunswick, MO x
St Louis, MO x
Kansas City, MO x
Jefferson City, MS x
Boonville, MS x
Hersey, MI x
Bensenville, IL x
Danville, IL x
Granite City, IL x
Xxxxxxxxx, IL x
Xxxxxx, IL x
Bainbridge, GA x
Albany, GA x
Fort Valley, GA x
Nashville, TN x
Moscow, TN x
Ogden, UT x
Mobile, AL x
Hanceville, AL x
Fort Madison, IA x
Schedule 5
**These portions of this agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
SCHEDULE 6
Alternative Dispute Resolution
------------------------------
(a) Dispute Notification. In the event of a dispute between Purchaser and Seller
arising our of or related to the Agreement (a "Dispute"), either Seller or
Purchaser may submit the Dispute to binding arbitration (the date of receipt as
indicated by the Postal Service return receipt, the "Arbitration Institution
Date") by giving notice to the other party. Such notice shall describe in detail
the nature of the Dispute, the specific facts that constitute the Dispute, and
shall identify an individual with authority to settle the Dispute on behalf of
that Party (the "Dispute Notice"). The scope of the arbitration shall be limited
to the facts of the Dispute Notice, though the arbitration can address all of
the ramifications resulting from such facts through the date of such
arbitration.
(b) Choosing an Arbitration Panel. The Party electing to arbitrate shall request
the American Arbitration Association to supply the Parties with a list, within
fourteen (14) days after such request, of at least four (4) potential
arbitrators who are knowledgeable in the crop production inputs business. Within
seven (7) days after receipt of such list, each Party shall select one (1)
arbitrator from the list. The two arbitrators selected by the Parties shall
select, within ten (10) days, a third arbitrator with the requisite
qualifications to serve as chair of the arbitration panel. The third arbitrator
can be, but need not be, selected from the list of four candidates. If the two
(2) selected arbitrators are unable to agree to the third arbitrator within the
specified time, they shall notify the American Arbitration Association which
shall select a third arbitrator in accordance with its Commercial Arbitration
Rules. Notwithstanding the provisions of this Section (b), Purchaser and Seller
-----------
may, by written agreement, elect to submit the Dispute to a single arbitrator
who shall be chosen in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, unless such election specifies an alternative
selection method.
(c) Arbitration Date and Rules. The three (3) arbitrators shall agree upon a
date for the arbitration to begin, which date shall be as soon as reasonably
practicable after the Arbitration Institution Date, and notify the Parties of
such date as soon as possible. The arbitration shall be conducted, to the extent
not inconsistent herewith, in accordance with the then-prevailing Commercial
Arbitration Rules of the American Arbitration Association. The arbitrators shall
render their decision and award, upon the concurrence of at least two (2) of
them, not later than thirty (30) days after the arbitration is completed. Their
decision and award shall be in writing and counterpart copies thereof shall be
delivered to each of Seller and Purchaser. In rendering their decision and
award, the arbitrators shall not have any power to modify any of the provisions
of this Agreement (including liability limitations), and the jurisdiction of the
arbitrators is limited accordingly.
(d) Fees and Costs. The fees and authorized costs of any arbitrators shall be
shared equally by Seller and Purchaser. Any costs incurred by a party, including
counsel fees, witnesses, etc., shall be borne entirely by that party.
(e) Federal Aribitration Act. Seller and Purchaser acknowledge and agree that
performance of the obligations under the Agreement necessitates the use of
instrumentalities of interstate commerce and, notwithstanding other general
choice of law provisions in the Agreement, Seller and Purchaser agree that the
Federal Arbitration Act shall govern and control with respect to relevant
provisions of this Exhibit 6.
---------
