THE PORTIONS OF THIS EXHIBIT 10.9 MARKED "[CONFIDENTIAL*]" HAVE BEEN
OMITTED HEREFROM AND CONFIDENTIALLY FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
DO NOT COPY - NOT FOR DISTRIBUTION
AGREEMENT
FOR
SULPHUR SUPPLY
dated as of
July 1, 1993
among
Freeport-McMoRan Resource Partners,
Limited Partnership,
IMC Fertilizer, Inc.
and
IMC-Agrico Company
TABLE OF CONTENTS
PAGE
I. Definitions ........................................................ 2
II. Agreements to Purchase and Sell .................................... 8
III. Contract Term ...................................................... 9
lV. Quantity; Pricing Allocation ....................................... 9
V. Price .............................................................. 13
VI. Scheduling ......................................................... 19
VII. Deliveries ......................................................... 22
VIII. Weights and Measures ............................................... 29
IX. Quality and Form ................................................... 30
X. Title and Risk ..................................................... 31
XI. Invoicing and Payment .............................................. 31
XII. Safety, Lability, Warranties ....................................... 35
XIII. Taxes .............................................................. 36
XIV. Audit .............................................................. 36
XV. Force Majeure ...................................................... 37
XVI. Sulphur Sales by FRP to IMC ........................................ 39
XVII. FRP Use of Partnership Facilities .................................. 39
XVIII. Commercial Impracticability ........................................ 41
XIX. Successor Manager .................................................. 42
XX. Notices ............................................................ 43
XXI. FRP/IMC Agreements ................................................. 45
XXII. SATCO Exchanges .................................................... 46
XXIII. Assignment ......................................................... 46
XXIV. Confidentiality .................................................... 47
XXV. Damages ............................................................ 48
XXVI. Amendments ......................................................... 48
XXVII. Governing Law ...................................................... 48
XXVIII. Successors and Assigns ............................................. 49
XXIX. Conflict of Interest ............................................... 49
XXX. Headings ........................................................... 49
Schedule A - Agreed basis for determining Base Sulphur to
Supplemental Sulphur Supply Ratios
Schedule B - Sulphur Allocation Worksheet
Addendum No. 1 to Agreement for Sulphur Supply - Excess IMC Sulphur
Addendum No. 2 to Agreement for Sulphur Supply - Deleting Pennzoil
Supply Contract as an Exclusion to [Confidential*]
Addendum No. 3. to Agreement for Sulphur Supply - Xxxxxxxx Plant
Exception
December 1, 1994
AGREEMENT
FOR
SULPHUR SUPPLY
This Agreement is made and entered into this 1st day of July, 1993 among
Freeport-McMoRan Resource Partners, Limited Partnership ("FRP") IMC Fertilizer,
Inc. (ZINCS), and IMC-Agrico Company, a Delaware general partnership
("Partnership").
RECITALS
A. Partnership owns and operates phosphate chemical manufacturing plants
and wishes to secure a long-term supply of sulphur for its manufacturing
requirements;
B. IMC wishes to supply sulphur to Partnership on a long term basis;
C. FRP wishes to supply sulphur to Partnership on a long term basis;
THEREFORE the parties agree as follows:
I. DEFINITIONS
Whenever used in this Agreement, the terms set forth below shall have the
meanings assigned to them in this Article I. Unless otherwise expressly
specified therein, the terms defined in this Article I shall have the same
meanings when used in any attachments to this Agreement.
1.01 "AFFILIATE" means when used in relation to a party to this Agreement,
any firm, corporation, partnership, joint venture or other entity, that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with such party.
1.02 "AGREEMENT" means this Agreement for Sulphur Supply and Schedules A
and B attached hereto, which Schedules are incorporated into this Agreement by
reference, and any amendments hereto.
1.03 "ALLOWED SPOT PURCHASES" shall have the meaning prescribed for such
term in Section 1.12 hereof.
1.04 "BASE SULPHUR" means a category into which sulphur supplied by FRP and
IMC hereunder shall be allocated for purposes of pricing sulphur to be sold
under this Agreement, all as more fully set forth in Article IV hereof.
1.05 "BASE TONNAGE" shall have the meaning prescribed for such term in
subparagraph (c) of Article IV hereof.
1.06 "CONTRACT TERM" means the period of time beginning as of the date
hereof and continuing thereafter for so long as the business of Partnership has
a requirement for sulphur.
1.07 "DELIVERED PRICE PER TON" means, when used with respect to sulphur
delivered to a particular Partnership plant, the amount per ton paid by
[Confidential*] for such sulphur delivered to such plant [Confidential*] from
point of origin to such plant. In the case where sulphur destined for a central
Florida Partnership plant is delivered into Partnership-furnished trucks at a
marine sulphur terminal located in the Port of Tampa, Florida and transported
therein from such terminal to such plant at Partnership's expense, the
"Delivered Price Per Ton" in such case shall mean with respect to such plant an
amount per ton equal to the sum of [Confidential*].
1.08 "EXCESS IMC SULPHUR" means sulphur obtained by whatever means by IMC
for the purpose of supplying hereunder the sulphur requirements of Partnership,
but which sulphur proves to be in excess of such requirements.
1.09 "XXXXXXXX PLANT" means the fertilizer plant owned and operated by
Partnership and located at Donaldsonville, Louisiana.
1.10 "IMC MAIN PASS SULPHUR" means all sulphur produced for the account of
IMC from the offshore Louisiana Main Pass 299 sulphur mine.
1.11 [CONFIDENTIAL*] means, with respect to a month [Confidential*] paid by
IMC to FRP and to parties other than FRP that are not affiliated with IMC or
Partnership for sulphur purchased by IMC and delivered to Partnership's
phosphoric acid manufacturing plants located in central Florida (excluding the
Xxxxxxx plant) during such period of time; exclude. (i) purchases from IMC's
existing sulphur purchase contract with Pennzoil Sulphur Company dated November
25, 1985, (ii) any and all purchases from whatever source that are not
equivalent to arm's length contract transactions representative of the then
current. market for like quantities, terms and deliveries, and (iii)
transactions such as, but not limited to, those involving an exchange of an
unlike commodity for sulphur and those involving payment and other contract
terms which would not customarily be available from sulphur suppliers in general
at the time the agreement governing the transaction was entered into, and (iv)
[Confidential*] (purchases under contracts of less than one year's duration)
excepts for Allowed Spot Purchases. [Confidential*] shall have the following
meaning:
Of the total sulphur purchased by Partnership during such month (excluding
purchases during such month of the kind described in subclauses (i), (ii)
and (iii) of the preceding sentence and excluding [Confidential*] during
such month which meet the criteria set forth in subclauses (ii) and (iii)
of the preceding sentence), the portion of such total sulphur which is
purchased on a [Confidential*] up to a maximum of [Confidential*] of such
total sulphur, shall be considered [Confidential*].
The quantity of the [Confidential*] if any, shall be deemed to have been
purchased at a price per ton equal to the [Confidential*]. The [Confidential*]
shall mean the [Confidential*] of all sulphur purchased by IMC on a
[Confidential*] basis during such month (excluding [Confidential*] during such
month meeting the criteria of subclauses (ii) and (iii) of the first sentence of
this Section 1.12); provided however, that for purposes of calculating the
[Confidential*] for such month:
(i) should the [Confidential*] for such month exceed by more than
[Confidential*] the [Confidential*] for such month, the
[Confidential*] for such month in such event shall be deemed to be an
amount equal to the [Confidential*] for such month plus
[Confidential*]; or
(ii) should the [Confidential*] for such month exceed by more than
[Confidential*] the [Confidential*] for such month, the
[Confidential*] for such month in such event shall be deemed to be an
amount equal to the [Confidential*] for such month less
[Confidential*].
1.12 [CONFIDENTIAL*] means, with respect to month, the actual
[Confidential*] paid by IMC to FRP and to parties other than FRP that are not
affiliated with IMC or Partnership for sulphur purchased by IMC and delivered to
Partnership's phosphoric acid manufacturing plants located in central Florida
(excluding the Xxxxxxx plant) during such month; excluding (i) purchases from
IMC's existing sulphur purchase contract with Pennzoil Sulphur Company dated
November 25, 1985, (ii) any and all purchases from whatever source that are not
equivalent to arm's length contract transactions representative of the then
current market for like quantities, terms and deliveries, and (iii) transactions
such as, but not limited to, those involving an exchange of an unlike commodity
for sulphur, those involving payment and other contract terms which would not
customarily be available from sulphur supplies in general at the time the
agreement governing the transaction was entered into, and (iv) [Confidential*]
(purchases under contracts of less than one year's duration).
1.13 "NEW WALES PLANT" means the fertilizer plant owned and operated by
Partnership and located at New Wales, Florida.
1.14 "NICHOLS PLANT" means the fertilizer plant owned and operated by
Partnership and located at Nichols, Florida.
1.16 "PARTNERSHIP" means IMC-Agrico Company, a Delaware general
partnership.
1.17 "PARTNERSHIP PLANT" means any of the New Wales plant, the South Xxxxxx
plant, the Xxxxxxxx plant, the Uncle Xxx plant and the Xxxxxxx plant.
1.18 "SHORTFALL" shall have the meaning prescribed for such term in
subparagraph (b) of Article IV hereof.
1.19 "SOUTH XXXXXX PLANTS" means the phosphoric acid fertilizer plant owned
and operated by Partnership and located at Bartow, Florida.
1.20 [CONFIDENTIAL*] shall have the meaning prescribed for such term in
Section 1.12 hereof.
1.21 "SUPPLEMENTAL SULPHUR" means a category into which sulphur supplied by
FRP and IMC hereunder shall be allocated for purposes of pricing sulphur to be
sold under this Agreement; all as more fully set forth in Article IV hereof.
1.22 "SUPPLEMENTAL TONNAGE" shall have the meaning prescribed for such term
in subparagraph (c) of Article IV hereof.
1.23 "XXXX PLANTS" means the fertilizer plant owned and operated by
Partnership and located at Taft, Louisiana.
1.24 "TON" means a long ton of 2240 pounds.
1.25 "UNCLE SAME PLANT" means the fertilizer plant owned and operated by
Partnership and located at Uncle Xxx, Louisiana.
II. AGREEMENTS TO PURCHASE AND SELL
FRP and IMC will sell and deliver, and Partnership will purchase and
accept, during the Contract Term, the quantities of sulphur described in Article
IV hereof at the prices set forth in Article V hereof.
III. CONTRACT TERM
The term of thin Agreement shall begin as of the date hereof and shall
continue thereafter for so long as the business of Partnership has a requirement
for sulphur.
IV. QUANTITY PRICING ALLOCATION
FRP and IMC shall collectively, supply 100% of Partnership's sulphur
requirements during the Contract Term with the quantity to be supplied by each
of FRP and IMC being determined as set forth in subparagraphs (a) through (d)
below of this Article IV, unless otherwise agreed by each of Partnership, FRP
and IMC. The sulphur sold by FRP and IMC to the Partnership shall be allocated
as prescribed it subparagraphs (a) through (d) below of this Article IV between
the categories "Base Sulphur" [Confidential*] and "Supplemental Sulphur."
Schedule A attached hereto and made a part hereof represents the agreement of
the parties hereto as to the manner in which quantities of sulphur to be
supplied by FRP and IMC would be allocated among Partnership plants shown on
such schedule, as well as the allocation of such quantities as between Base
Sulphur and Supplemental Sulphur, in the event Partnership's requirement for
sulphur for a year should be exactly 3,025,000 tons. Schedule B attached hereto
and made a part hereof is a sulphur allocation worksheet which incorporates the
allocation ratios of Schedule A, as supplemented and modified by subparagraphs
(a) through (d) below of this Article IV, and as such constitutes the mechanism
by which quantities to be supplied hereunder to Partnership plants shown on
Schedule A hereof, and the allocation of such quantities for purposes of the
pricing provisions hereof, shall be calculated.
(a) FRP will supply 100% of the requirements of the Xxxxxxxx, Uncle Xxx
and South Xxxxxx plants, with the allocation of Base Sulphur and
Supplemental Sulphur to each of such plants to be calculated by the
use of the Sulphur Allocation Worksheet set forth on Schedule B.
(b) All sulphur requirements for the New Wales plant will be supplied by
FRP and IMC with the portion of such requirements to be supplied by
each of FRP and IMC for the New Wales plant, and the allocation of
each such portion as between Base Sulphur and Supplemental Sulphur, to
be determined by the use of the Sulphur Allocation Worksheet set forth
on Schedule B, except if at any time IMC has insufficient IMC Main
Pass Sulphur to meet IMC's Base Sulphur supply obligation at such time
as determined from Schedule B, it shall so notify FRP and the number
of tons of IMC Main Pass Sulphur required to meet such obligation (the
Shortfall) may be supplied by FRP at FRP's election, provided notice
of FRP's election to supply is furnished to IMC within 30 days of
FRP's receipt of IMC's notice of the Shortfall. Should FRP decline or
fail to elect to supply the Shortfall, the Shortfall shall be supplied
by IMC. In the event of a Shortfall the tonnage supplied by either FRP
or IMC, as the case may be, to make up the Shortfall shall be deemed
to be Supplemental Sulphur.
c) Notwithstanding subparagraphs (a) and (b) above of this Article IV it
is intended that
(i) if the total sulphur consumed by all of Partnership's then
operating plants (excluding the Xxxxxxx plant) during any
calendar year is 1,275,000 tons (the "Base Tonnage"), then
FRP shall supply 775,000 tons and IMC shall supply 500,000
tons and all such tonnage shall be Base Sulphur (except as
provided otherwise in subparagraph (b) above of this
Article IV in respect of any Shortfall),
(ii) if the total sulphur consumed by all of Partnership's then
operating plants (excluding the Xxxxxxx plant) during any
calendar year is less than the Base Tonnage, then FRP shall
supply 60.78% of such total and IMC shall supply 39.22% of
such total and all such sulphur shall be deemed to be Base
Sulphur, and
(iii) if the total sulphur consumed by all of Partnership's then
operating plants (excluding the Xxxxxxx plant) during any
calendar year is greater then the Base Tonnage (with tonnage
in excess of the Base Tonnage being hereinafter referred to
as "Supplemental Tonnage"), then FRP shall supply 64.52% of
such Supplemental Tonnage and IMC shall supply 35.48% of
such Supplemental Tonnage, except that if in such year the
quantity of IMC Main Pass Sulphur available for sale exceeds
500,000 tons, IMC shall deliver such excess IMC Main Pass
Sulphur to Partnership and the quantity of Supplemental
Tonnage shall be reduced by the quantity of such excess IMC
Main Pass Sulphur so delivered. All Supplemental Tonnage and
all such excess IMC Main Pass Sulphur shall be deemed to be
Supplemental Sulphur.
(d) All sulphur requirements of the Xxxxxxx plant will be supplied by FRP
and IMC in equal quantities and all such sulphur supplied to such
plant shall be deemed to be Supplemental Sulphur.
V. PRICE
5.1 PRICE: GENERAL. The price to be paid by Partnership to FRP and IMC
for all sulphur purchased and sold hereunder shall, unless otherwise agreed by
each of Partnership, FRP and IMC, be determined an set forth in Sections 5.2 and
5.3 below.
5.2 FRP SALES TO PARTNERSHIP.
(a) The price to be paid by Partnership to FRP for all sulphur which
is deemed to be Base Sulphur pursuant to Article IV above shall be as
follows:
i. f.o.b. plant for consumption at a Partnership plant located
in central Florida excluding the Xxxxxxx plant, a price per ton
equal to the [Confidential*].
ii. f.o.b. plant for consumption at the Xxxxxxxx and Uncle Xxx
plants, a price per ton equal to the [Confidential*] per ton for
the month which includes the date of delivery [Confidential*].
(b) The price to be paid by Partnership to FRP for all sulphur which
is deemed to be Supplemental Sulphur pursuant to Article IV above
shall be as follows:
i. f.o.b. plant for consumption at a Partnership plant located
in central Florida, excluding the Xxxxxxx plant a price per ton
[Confidential*] for the month which includes the date of
delivery.
ii. f.o.b. plant for consumption at the Xxxxxxxx and Uncle Xxx
plants, a price per ton equal to the [Confidential*] the month
which includes the date of delivery [Confidential*].
iii. f.o.b. plant for consumption at the Xxxxxxx plant, a price
per ton [Confidential*] and to parties other than FRP that are
not affiliated with IMC or Partnership for sulphur which IMC
supplied to the Xxxxxxx plant during the month which includes the
date of delivery but excluding from such [Confidential*] (i) any
and all purchases from whatever source that are not equivalent to
arm's length contract transactions representative of the then
current market for like quantities, terms and deliveries, (ii)
transactions such as, but not limited to, those involving an
exchange of an unlike commodity for sulphur and those involving
payment and other contract terms which would not customarily be
available from sulphur suppliers in general at the time the
agreement governing the transaction was entered into, and (iii)
[Confidential*] (purchases under contracts of less than one
year's duration).
5.3 IMC SALES TO PARTNERSHIP
(a) The price to be paid by Partnership to IMC for all sulphur which
is deemed to be Base Sulphur pursuant to Article IV above shall
be as follows:
i. f.o.b. plant for consumption at a Partnership plant located
in central Florida, excluding the Xxxxxxx plant,
[Confidential*] the month which includes the date of
delivery [Confidential*].
ii. f.o.b. plant for consumption at the Xxxxxxxx and Uncle Xxx
plants (in the event IMC supplies sulphur to those plants
pursuant to subparagraph (c) of Article IV), a price per ton
[Confidential*] the month which includes the date of
delivery [Confidential*].
(b) The price to be paid by Partnership to IMC for all sulphur which
is deemed to be Supplemental Sulphur pursuant to Article IV above
shall be as follows:
i. f.o.b. plant for consumption at a Partnership plant located
in central Florida, excluding the Xxxxxxx plant, a price per
ton [Confidential*] Per Ton [Confidential*] to third parties
for such sulphur.
ii. f.o.b. plant for consumption at the Xxxxxxxx and Uncle Xxx
plants, a price per ton equal to the [Confidential*].
iii. f.o.b. plant for consumption at the Xxxxxxx plant, a price
per ton [Confidential*].
5.4 PRICE REDETERMINATION: BASEBALL ARBITRATION. If (i) at the end of any
period of six calendar months which began on January 1 or July 1 of any calendar
year of the Contract Term the aggregate total of the monthly tonnages during
such period used to calculate the [Confidential*] for each month of such period
should be less than 100,000 tons, or (ii) at the end of any month of the
Contract Term the [Confidential*] for such month cannot be
calculated because no sulphur properly includible in such calculation has
been purchased by IMC and delivered during such month, then, in either such
event, the parties shall have the rights and obligations hereinafter net
forth in this Article V.
5.4.1 At the end of any six-month period described in subclause (i) of
Section 5.4 above, FRP, IMC or Partnership may by written notice
to the other parties given within 5 days after the end of such
period request redetermination of the price payable for sulphur
delivered hereunder during such period. Not later than five days
after the end of any month described in subclause (ii) of Section
5.4 above IMC shall confirm by written notice to FRP the absence
of a basis for calculating the [Confidential*] for such month and
the parties shall proceed pursuant to Section 5.4.2 below to
[Confidential*] sulphur delivered hereunder during such month.
Sulphur delivered during a month for which a price is unavailable
pending a price redetermination pursuant to this Article V, shall
be invoiced and paid for at the price which would have been
applicable to such sulphur if delivered in the most recent prior
month for which the [Confidential*]. With respect to any final
price redetermination made during a month, any billing
adjustments required to be made by FRP or IMC as the result
thereof shall be accomplished in the billing party's next monthly
invoice.
5.4.2 In the event a notice of either kind contemplated by Section
5.4.1 is given, FRP, IMC and Partnership shall have a period of
10 days after the day such notice is given in which to commence
redetermination of and agree upon the price payable for sulphur
delivered hereunder during the period to which the notice is
applicable. In the event the parties are unable to agree upon a
redetermined price by the end of such 10 day period, the price
shall be determined through a proceeding for resolution of
disputes submitted to Endispute Incorporated ("Endispute") in San
Francisco, California, with the party whose position is upheld by
Endispute in such proceeding being entitled to recover its
reasonable attorneys' fees and expenses from the other party. If
at the time the dispute occurs Endispute is not in the business
of resolving disputes in San Francisco, California, either party
may ask the Chief Judge of the United States Court of Appeals for
the Ninth Circuit to select a similar firm located in San
Francisco, California. The determination of Endispute or such
similar firm shall be final and binding on the parties.
5.4.3 Unless otherwise agreed by the parties in any particular
instance, a proceeding for dispute resolution under Section 5.4.2
shall be based on a "baseball arbitration" pursuant to which each
party shall produce a written statement setting forth the price
it believes to be the [Confidential*] located in central Florida
for the time period in issue. The dispute shall be resolved by
adoption of one of such prices submitted by the parties and not
at a third price.
VI. SCHEDULING
6.1 GENERAL; PLANT ACCESS. Partnership shall cooperate in good faith with
each of FRP and IMC for the purpose of obtaining information required for
scheduling sulphur supply logistics, including a rights in each of FRP and IMC
to enter upon the premises of any Partnership plant when such entry is
reasonably required to obtain such information and subject to the prior consent
of Partnership (which consent shall not be unreasonably withheld). Required
information would include, but not be limited to, plant sulphur inventory levels
in tanks and railcars, mechanical condition of transportation equipment, and
sulphur logistic limitations, e.g., dock outage, sulphur pit repairs.
Partnership shall also permit access to Partnership plants from time to time by
FRP and/or IMC contractors as may be reasonably required for purposes of
conducting repairs on transportation equipment, provided reasonable advance
notice is given and provided the conduct of such repairs would not unreasonably
interfere with plant operations.
6.2 DAILY REPORT. On any day or from day to day as either FRP or IMC
should request, Partnership shall provide to the requesting party, by telecopy
and for each Partnership plant, a report setting forth all deliveries of sulphur
made by each of FRP and IMC to such plant during the preceding day, as well as
the number of tons of sulphur consumed at such plant during such preceding day.
6.3 OPERATING FORECASTS. Partnership shall provide to each of FRP and IMC,
as and when FRP and/or IMC shall request from time to time during the Contract
Term, a timely forecast of sulphur consumption by plant using the
Sulphur Allocation Worksheet attached hereto as Schedule B and of expected
delivered prices, as well as periodic updates revising such forecast as
needed for purposes of budgeting and providing uninterrupted sulphur supply.
6.4 MONTHLY DELIVERY BALANCING. For purposes of maintaining a balance
between the quantities of sulphur each of FRP and IMC are entitled to deliver
hereunder to a Partnership plant and their respective actual deliveries thereto,
Partnership shall, in addition to any other consumption forecasts which
Partnership may be requested to provide under Section 6.3 hereof and by use of
the Sulphur Allocation Worksheet attached as Schedule B hereto, provide to each
of FRP and IMC not later than 30 days prior to the beginning of each calendar
month, or any other period of time as may be mutually agreed upon, a forecast
allocation of the quantities of sulphur to be delivered by each of FRP and IMC
during such month, to each of Partnership plants. Within 5 business days after
the end of such month, Partnership shall utilize such worksheet to determine the
actual allocation of such quantities for such month. Should it appear from the
actual allocation that FRP or IMC, as the case may be, delivered during such
month to a particular Partnership plant a quantity of sulphur greater than the
quantity it was entitled to deliver to such plant during such month, the
quantity in excess of such entitled quantity shall be referred to as an
"over-delivery". Within such 5-day period, Partnership shall provide to each of
FRP and IMC an amended allocation forecast for the then current calendar month
which reflects, for each Partnership plant to which an over-delivery was made
during the preceding calendar month a reduction in the tonnage to be delivered
during such current month to such plant by the over-delivering party and a
corresponding increase in the tonnage to be delivered during such current month
to such plant by the under-delivering party.
VII. DELIVERIES
7.1 DELIVERIES: GENERAL. Partnership's written orders specifying the
tonnage of sulphur which Partnership shall wish to take from each of FRP and IMC
during each month shall be placed with FRP and IMC, respectively, within the
first ten days of the month preceding the month in which deliveries are desired.
Deliveries shall be made and taken at a reasonably uniform rate during the
Contract Term. All shipments of sulphur hereunder will be made on commercial
bills of lading. There is reserved to each of FRP and IMC the right to route
shipments of and to select the carriers for the sulphur to be shipped by each
hereunder. All shipments of sulphur hereunder shall be on [Confidential*], with
the shipping party (FRP or IMC, as applicable) responsible for [Confidential*]
on the sulphur shipped by it from point of origin to such plant; EXCEPT THAT in
the case of sulphur designated by FRP or IMC (as applicable) for delivery to
Partnership at a marine sulphur terminal located in the Port of Tampa, Florida,
Partnership shall provide the trucks required to take delivery of such sulphur
at such terminal and transport same to the Partnership plant for which such
sulphur in destined and all costs of providing such trucks and transporting such
sulphur from such terminal to such plant shall be paid by [Confidential*].
7.2 FACILITIES. Partnership will provide, maintain, and make available
facilities, at Partnership plants for unloading rail cars, trucks and barges, as
applicable, delivering sulphur pursuant to this Agreement including but not
limited to rail track to receive railcars and to steam railcars, necessary
transfer lines, pumps, storage tanks, and any other necessary or related
facilities. Such unloading shall be accomplished promptly and any demurrage
and/or detention charges which become due shall be paid by Partnership, unless
the delay is directly attributable to FRP or IMC.
Partnership will provide, maintain and make available a safe berth for
FRP's barges at each of the Uncle Xxx plant and the Xxxxxxxx plant. Each such
safe berth will provide adequate unloading facilities to accommodate a towboat
and a two barge tow.
7.3 DAMAGE TO TRANSPORTATION EQUIPMENT. Partnership agrees to (i)
compensate each of FRP and IMC for loss or damage, excepting sulphur corrosion
and ordinary wear and tear, to the property of each and (ii) indemnify and save
each of FRP and IMC harmless from any damage to property other than the property
of each and from any injuries to persons relating in any way to the use of such
railcar(s), trucks(s) and barge(s) which is due to the fault or negligence of
Partnership. Partnership further agrees to promptly report to each of FRP and
IMC, as appropriate, any damage which may be sustained by the railcars(s),
truck(s) or barge(s).
FRP and IMC agree to (i) compensate Partnership for loss or damage,
excepting ordinary wear and tear, to the property of Partnership and (ii)
indemnify and save Partnership harmless from any loss or damage to property
other than the property of Partnership and from any injuries to persons related
in any way to the use of such railcar(s), truck(s) and barge(s) which is due to
the fault or negligence of either FRP or IMC or their agents or employees.
7.4 UNLOADING; DEMURRAGE.
BARGE - Barge deliveries shall be made by FRP into Partnership's
shorelines at the Uncle Xxx and Xxxxxxxx plants. The sulphur shall be deemed to
have been delivered as it is progressively discharged into such shorelines.
Partnership shall use reasonable efforts to accept multi-barge deliveries: In
no event shall the number of deliveries by barge to the Uncle Xxx and Xxxxxxxx
plants obliged to be made by FRP during a month exceed a combined total of 25
such deliveries, nor shall FRP be obligated to make barge deliveries in lots
less than approximately 4,000 tons.
Partnership shall provide, [Confidential*] proper dock facilities where
FRP's barges can moor, together with such flexible connections, shorelines and
other facilities as may be needed to connect such lines with the discharge lines
on FRP's barges and to receive discharge from the barges at a rate of not less
than 500 tons per hour. Partnership shall also provide, without cost to FRP,
such shore labor and facilities as may be needed for the prompt and proper
handling of mooring lines, the making and breaking of shore connections and the
handling of sulphur into and through Partnership's shorelines. Discharge of the
sulphur shall commence promptly following berthing of the barges, and shall
continue with all reasonable dispatch and without interruption, including
nights, Saturdays, Sundays, and holidays. The parties agree to cooperate in
scheduling the arrival of barges and the use of Partnership's docks to the end
that an open berth will be provided for FRP's barges upon their arrival.
If at any time during the Contract Term a barge is presented at the Uncle
Xxx plant or the Xxxxxxxx plant for unloading and Partnership is unable at such
plant to receive any and/or all of the sulphur available for unloading from such
barge at such time, then, unless such inability, is the fault of the employees
and/or equipment of FRP or its agents, Partnership shall be responsible for
payment of any freight or other associated costs incurred by FRP in redirecting
or diverting the barge in order to discharge therefrom the sulphur which
Partnership was unable to receive as aforesaid. In the event delays are
experienced in the unloading of sulphur from FRP' barges into shorelines at
either of the Uncle Xxx or Xxxxxxxx plants, regardless of the cause of such
delay except fault of the employees or equipment of FRP or its agents or force
majeure, Partnership shall for each barge so delayed pay FRP Barge Demurrage for
each hour and any fraction of an hour by which actual laytime for unloading
FRP's barges exceeds twelve hours for a single barge tow or twenty-four hours
for a two barge tow; such Barge Demurrage to be an hourly rate reflecting the
full operating cost of the towboat and barge (or towboat and barges, as the case
may be) during the period of time with respect to which the Barge Demurrage is
chargeable. Laytime for unloading shall commence when the barge is tendered to
the plant, berth or no berth, day or night, including Saturday, Sunday and
holidays. Laytime shall end when all shore connections have been disconnected
and removed from FRP's barge, or when notice is given that Partnership is unable
to load the barge.
TRUCKS - Partnership will provide and maintain a daily tank truck unloading
capability at each of the Partnership plants equal to the average number of tank
trucks unloaded per day at such plant during the period of one year immediately
preceding the date of this Agreement. Necessary personnel and safety equipment
will be provided to accommodate the unloading of tank trucks 7 days a week,
including holidays, 365 days per year. Tank trucks will be unloaded on a "first
come-first served" basis. Any truck detention or demurrage charges incurred by
FRP or IMC at a Partnership plant shall be reimbursed to the incurring party at
cost by Partnership unless such charges were imposed through the fault of the
incurring party.
RAILCARS - Partnership will unload railcars promptly at destination and
return them to the carrier in accordance with the routing instructions of FRP or
IMC, as applicable. Partnership will not divert any rail car from the
destination to which it was originally consigned by FRP or IMC without prior
notification to and approval by such consigning party (followed by written
confirmation of such approval). FRP and IMC will use best efforts to supply
railcars in good working order. Should a railcar require minor repair,
Partnership will provide available trackage for repair crews as long as in
Partnership's judgment it does not interfere with plant operations. Should a
railcar require repairs that cannot be accomplished in the plants, notification
will be given to FRP or IMC, as applicable for railcar disposition. Partnership
shall not be responsible for railcar repairs. FRP or IMC, as applicable, agree
to indemnify and hold harmless Partnership from any and all liability arising
out of or in any way related to the trackage provided for railcar repair,
railcar repair services or the presence of railcars awaiting repair as well as
instructions for dispatch after repair. Said liability and indemnification shall
include but not be limited to injury, sickness, death or property damage.
Partnership will provide and maintain a daily railcar unloading capability
at each Partnership plant equal to the average number of railcars unloaded per
day at such plant during the period of one year immediately preceding the date
of this Agreement.
Unloading of railcars will be performed 7 days a week, 365 days per year,
including holidays. Railcars will be unloaded in the order of their arrival.
Partnership will have a maximum of 5 free days unloading time starting at
7:00 a.m. on the morning following the time of the railroad's notification to
Partnership of the railcar's constructive placement and ending with official
notice to the railroad of release of the railcar as empty. After such 5 free
days Railcar Demurrage will be assessed against and paid by Partnership per day
or fraction of a day, per railcar, at a rate reflecting the actual cost incurred
by FRP or IMC, as applicable, as the result of the railcar being held by the
Partnership for a period longer than the allowed free time. FRP and IMC shall
each have the right, exercisable on December 31 of each year during the Contract
Term by notice to Partnership given on or before such date, to decrease the
number of free days then being allowed hereunder for unloading at a particular
Partnership plant to the lowest number of free days then being allowed pursuant
to its published tariffs of any railroad carrier for unloading of cars at such
plant (provided that such lowest number of free days is less than 5 free days).
VIII. WEIGHTS AND MEASURED
The quantity of sulphur delivered by each of FRP and IMC to Partnership
shall be determined based upon a certified xxxx of lading. The quantity
determination made by such delivering party will govern (except in case of
proven error) when the delivery is by truck or barge.
Railcar quantities shall be determined as follows:
The quantity placed on the xxxx of lading will be determined by certified
rail scales at point of railcar loading. In the event rail scales are
unavailable at origin, the railcar will be weighted in transit to
destination on railroad certified scales. In the event the quantity was
not determined at railcar loading or in transit to the destination, the
railcar will be weighed upon arrival at destination on certified rail
scales. If the railcar was not previously weighed prior to reaching
destination and should rail scales be unavailable or incapacitated at
destination, the quantity will be determined by tank car outage tables
provided by the tank car owner or lessee for that particular railcar,
taking into consideration correction factors for temperature.
Barge quantities shall be determined by volumetric measurements of shore
tank(s) prior to, and at the conclusion of, loading appropriately adjusted to
changes in density resulting from varying temperatures and carbonaceous
impurities. Partnership shall have the right to be represented, at Partnership's
expense, during any barge loading.
IX. QUALITY AND FORM
9.1 SPECIFICATIONS. Except as otherwise provided in Sections 9.2 and 9.3
below the sulphur to be purchased and sold hereunder shall meet the following
specifications:
Crude sulphur guaranteed 99.50% pure on a dry basis which shall be
commercially free of arsenic, selenium, and tellurium and which shall contain
not more than 0.25% carbon, not more than 50 parts per million (ppm) ash, and
not more than 10 ppm acidity: if over 99.50% purity, no charges shall be made
for the excess; if under, a pro-rata allowance shall be made or, at
Partnership's option, acceptance of delivery thereof may be refused by
Partnership (provided that such refusal shall not relieve the selling party (FRP
or IMC, as applicable) of its obligation to replace the quantity so refused with
an equal quantity of sulphur conforming to the specifications set forth in this
Article IX). The sulphur shall be in liquid (molten) form of not less than 260
degrees Fahrenheit when loaded into Partnership receiving facilities.
9.2 AMENDMENT OF SPECIFICATIONS. At any time or from time to time during
the Contract Term as a material change should occur in the quality
specifications which are usual and customary in sulphur supply agreements in
effect at the time between sulphur suppliers in general and their customers, the
parties hereto shall confer in good faith and amend this Agreement to accord
with such changed specifications.
9.3 UNCLE XXX PLANT EXCEPTION. The specifications set forth in Section
9.1 above shall apply to all sulphur delivered hereunder to the Uncle Xxx plant
except that such sulphur shall contain not more carbon than would raise the
calculated percentage of carbon in a storage tank at the Uncle Xxx plant to a
level greater than 0.4%.
X. TITLE AND RISK
Title to sulphur sold hereunder and risk of loss with respect thereto shall
pass to Partnership upon delivery.
XI. INVOICING AND PAYMENT
11.1 GENERAL. Within 5 days following the close of each calendar month,
Partnership shall furnish each of FRP and IMC a report setting forth the
quantities of sulphur delivered by each of FRP and IMC to each of Partnership
plants during the preceding month. On the basis of such report FRP and IMC shall
each invoice Partnership within 7 days following the close of each calendar
month for the quantities of sulphur delivered by each of them respectively to
each of Partnership plants during the preceding month. Within fifteen days from
the date of FRP's or IMC's invoice, Partnership shall make payment for the
sulphur so invoiced by electronic transfer of same-day funds. Partnership agrees
to pay FRP, or IMC, as the case may be, a service charge equal to .050% per day
(approximately 1-1/2% per month) on all payments due by Partnership not received
into FRP's or IMC's account, as the case may be, on or before the due date. For
invoicing purposes hereunder, the first quantities of sulphur delivered by FRP
and IMC hereunder to a Partnership plant during any month shall be deemed to be
in fulfillment of the quantity of Base Sulphur which the delivering party is
entitled to deliver to such plant during such month. Notwithstanding the
preceding sentence, with respect to the quantity of Base Sulphur delivered by
FRP during any calendar year, FRP shall endeavor, to the extent Partnership
plant consumption rates permit, to invoice Partnership for such annual quantity
in such manner as will permit such annual quantity to be distributed in
approximately equal portions over the twelve monthly invoices applicable to
deliveries made in such year.
11.2 FREIGHT REIMBURSEMENT. The monthly report of deliveries to be
furnished each of FRP and IMC pursuant to Section 11.1 above shall also contain
a per ton [Confidential*] (as more fully described hereinafter in this Section
11.2) applicable to the month covered in the monthly report. FRP and IMC shall
in their respective invoices for sulphur delivered during the month covered by
the report, [Confidential*] applicable to that month times the number of tons of
the invoicing party's sulphur delivered to Partnership at a marine sulphur
terminal(s) located in the Port of Tampa, Florida during such month.
The [Confidential*] for any month shall be [Confidential*] of transporting
sulphur from marine sulphur terminals located in the Port of Tampa, Florida to
Partnership plants in Florida during such month. Such [Confidential*] shall also
be used for purposes of calculating the terminable-to-plant truck delivery costs
contemplated by the definition
of "Delivered Price Per Ton" set forth at Section 1.08 hereinabove. In
calculating such [Confidential*]; (i) the per-ton cost of a truck movement
from terminal to plant with no [Confidential*] shall be the total cost of
such [Confidential*] in such movement, and (ii) the per- ton cost of a truck
movement from terminal to plant, with a [Confidential*] of another commodity
from the plant for Partnership's account, shall be determined by
[Confidential*].
11.3 ANNUAL ASSESSMENT OF [Confidential*] PERIOD. An annual price
adjustment calculation shall be made hereunder by each of FRP and IMC within 30
days after the end of each calendar year to compare the invoiced amount for
sulphur delivered hereunder during such year against the amount which would have
been payable for such sulphur had the [Confidential*] and the [Confidential*]
each been computed on a quarterly, as opposed to a monthly, basis. Such
calculation, the details of which the parties agree to develop prior to January
1, 1994, would provide, for each [Confidential*] of such year, the total amount
which would have been owed by FRP and/or IMC to Partnership, or owed by
Partnership to FRP and/or IMC, as the case may be, had invoicing been conducted
on the [Confidential*] utilized in the calculation. Such [Confidential*] total
amounts for the year would be added together and the net amount obtained
thereby, constituting either an overpayment or underpayment by Partnership, as
applicable, would be duly billed or credited as appropriate in the next regular
invoices of FRP and IMC.
XII. SAFETY, LIABILITY, WARRANTIES
12.1 SAFETY DATA SHEETS. FRP and IMC shall each furnish to Partnership
Material Safety Data Sheets, including warnings and safety and health
information concerning the products sold hereunder. Partnership agrees to
disseminate such information so as to give warning of possible hazards to
persons who Partnership can reasonably foresee may be exposed to such hazards,
including but not limited to Partnership's employees, agents, contractors or
customers.
12.2 PRODUCT LIABILITY. FRP and IMC shall not, under any circumstances, be
liable for any special, indirect or consequential damages of any kind of the
Partnership arising from the handling, storage or use of the sulphur when
delivered, whether used singly or in combination with other materials. No claim
of any kind, whether in contract, tort or otherwise, arising out of such
handling, storage or use, shall be greater than, nor shall FRP or IMC in any
event be liable for, an amount in excess of the purchase price of the quantity
of sulphur in respect of which such claim is made.
12.3 WARRANTIES. FRP AND IMC MAKE NO WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED EXCEPT THAT THE SULPHUR SOLD HEREUNDER SHALL CONFORM TO THE
SPECIFICATIONS SET FORTH IN ARTICLE IX OF THIS AGREEMENT AND THAT FRP AND IMC
WILL CONVEY GOOD TITLE THERETO, FREE FROM ANY LAWFUL SECURITY INTEREST. FRP AND
IMC ASSUME NO OTHER LIABILITY WITH RESPECT TO THE SULPHUR AND MAKE NO OTHER
WARRANTY, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
OTHERWISE, EXPRESSED OR IMPLIED, WITH RESPECT THERETO.
XIII. TAXES
Partnership shall be responsible for the payment or satisfaction of any and
all taxes which may be imposed by Federal, State or local taxation authorities
after title to sulphur delivered hereunder has passed to Partnership, and shall
either (i) pay or (ii) demonstrate its exemption from any such taxes imposed
upon or levied coincident with the transfer of title to sulphur delivered
hereunder from the selling party (FRP or IMC, as applicable) to Partnership,
including but not limited to sales, use, gross receipts or other similar taxes,
but excluding income, excess profit, franchise, severance or production taxes.
XIV. AUDIT
FRP shall have the right to request and IMC will provide to FRP through
such nationally recognized independent firm of certified public accountants as
IMC shall designate a certified statement verifying that the calculation of the
[Confidential*] the [Confidential*] and IMC's [Confidential*] of sulphur
delivered to the Xxxxxxx plant have been accurately calculated and are in
accordance with the terms of this Agreement, and a certified statement that the
auditor has reviewed the records of Partnership's plants to the extent necessary
to verify that sulphur delivered to and consumed by Partnership has been
accurately calculated in accordance with the terms of this Agreement.
In the event IMC or an Affiliate of IMC shall cease to be the "Operating
Partner" under Partnership's Partnership Agreement, FRP and IMC shall thereafter
during the Contract Term each have the right through such nationally recognized
independent firm of certified public accountants as FRP and IMC shall
respectively designate (other than any such firm then serving as Partnership's
auditor at the time of the audit) to audit the records of Partnership's plants
to the extent necessary to provide the same [Confidential*] and sulphur delivery
and consumption verifications as theretofore were provided FRP by IMC's auditor
pursuant to the preceding sentence.
XV. FORCE MAJEURE
Provided a party hereto promptly notifies the other parties hereto thereof,
such party shall not be liable for any failure or delay in performance hereunder
which may be due in whole or in part to fire, explosion, earthquake, storm,
flood, drought or other adverse weather condition, accident, breakdown of
machinery or facilities including, but not limited to, the transportation,
terminal and handling facilities which may be employed in making deliveries
hereunder, transportation or handling difficulties, faults or errors in
navigation (including, but not limited to, any act or omission of carriers or
terminal operators), strike, lockout, combination of workmen or other labor
difficulties (from whatever cause arising, and whether or not the demands of the
employees are reasonable or within such party's power to grant), war,
insurrection, riot, act of God or the public enemy, law, act, order,
proclamation degree, regulation, ordinance, instruction or request of Government
or other public authorities, judgment or decree of a court of competent
jurisdiction, delay or failure of carriers or contractors, labor shortage, or
inability to obtain transportation equipment, operating materials, plant
equipment or materials required for maintenance or repairs, curtailment or
suspension of operations to remedy or avoid an actual or alleged violation or
violations of Federal, State, or local environmental, health or safety standards
as may be in effect from time to time during the contract period, or any other
contingency or delay or failure or cause of any nature beyond the reasonable
control of such party, whether or not of the kind hereinabove specified and
whether or not any such contingency is presently occurring or occurs in this
future. In the event that the transportation, handling or delivery capability of
FRP is impeded due to any such cause or causes FRP shall have the right to
reduce deliveries and to allocate its facilities in such manner as appears to it
to fairly apportion the consequences of such cause or causes among FRP's
customers, and FRP shall not be obligated to take any action which would remelt
in increasing its cost of performance beyond the cost which it would have
incurred in the absence of such cause or causes.
XVI. SULPHUR SALES BY FRP TO IMC
FRP and IMC shall not be precluded from entering into agreements whereby
FRP could sell to IMC a portion of the Supplemental Sulphur which IMC would be
obligated to supply to Partnership.
XVII. FRP USE OF PARTNERSHIP FACILITIES
17.1 STORAGE AND REDELIVERY. FRP may deliver sulphur to any Partnership
plant for redelivery therefrom at such time and in such manner as FRP shall
specify, subject to Partnership's agreement that any such Delivery and
redelivery will not disrupt operations at such plant. FRP shall reimburse
Partnership for actual costs incurred by Partnership in connection with and
reasonably related to any such delivery and redelivery.
17.2 BARGE FACILITIES. FRP shall have the right to fleet barges at docks or
other line-up facilities at the Xxxxxxxx, Xxxx and/or Uncle Xxx plants at any
time or from time to time provided Partnership determines such fleeting does not
cause interference with plant operations. FRP shall reimburse Partnership for
any actual costs incurred by Partnership as the result of, and reasonably
related to, such fleeting.
17.3 OTHER USES. With respect to Partnership facilities at the plants
owned by FRP prior to formation of Partnership, FRP shall be entitled to
continue to use such facilities provided (i) such use will not unduly interfere
with operations of Partnership, (ii) FRP reimburses Partnership for any actual
costs incurred by Partnership as the result of, and reasonably related to, such
use and (iii) FRP shall have first obtained the consent of Partnership (which
consent shall not be unreasonably withheld).
17.4 INDEMNITY. FRP shall defend, indemnify and hold harmless Partnership
against any and all liability arising out of or in any way connected with FRP's
use of Partnership facilities pursuant to this Article XVII including
but not limited to liability for injury, sickness, death and property damage
provided, however, that if Partnership has contributed to such liability
through gross negligence or willful misconduct, FRP's indemnity to
Partnership shall be reduced by the proportion in which Partnership's grows
negligence or willful misconduct contributed to such liability. In the event
any claim or demand as to which such indemnity relates is made on
Partnership, Partnership shall provide FRP with reasonable notice and
opportunity to defend. FRP shall carry liability insurance adequate to the
liability assumed by it hereunder. FRP shall reimburse Partnership for the
actual cost of any additional insurance which Partnership deems reasonably
necessary to insure its facilities against any and all liabilities which may
arise due to FRP's use fief Partnership facilities pursuant to this Article
XVII.
XVIII. COMMERCIAL IMPRACTICABILITY
The parties acknowledge that the allocation and pricing provisions of
Articles IV and V are based on assumptions about Partnership operations and
sulphur and sulphur transportation markets in accordance with which those
provisions are expected to yield generally balanced and equitable results. If
fundamental changes in those operations or markets render such an assumption
invalid and performance of this Agreement by a party becomes commercially
impracticable or grossly inequitable, that party may so notify the other
parties, setting forth its reasons in reasonable detail. The parties will
negotiate in good faith toward amending the affected provisions of the Agreement
in a manner intended to restore its balance and equity. Ordinary cyclical
changes in markets shall not be grounds for invoking negotiation under this
Article. A party invoking negotiation will have the burden of proving that an
assumption upon which the Agreement was based has fundamentally altered.
XIX. SUCCESSOR MANAGER
In the event IMC or an Affiliate of IMC shall cease to be the "Operating
Partner" under Partnership's Partnership Agreement, then with respect Into IMC's
rights and obligations to supply sulphur hereunder:
(a) IMC Main Pass Sulphur will be supplied to the Partnership by IMC and
otherwise dealt with hereunder in the same manner as would be the case
if IMC continued having responsibility for general management of the
Partnership; and
(b) the rights and obligations of IMC to supply hereunder sulphur other
than IMC Main Pass Sulphur shall vest in Partnership.
As the result of the vesting of such rights and obligations pursuant to
subclause (b) above, the Partnership shall assume the Sulphur purchasing
functions theretofore performed by IMC in connection with IMC's non-IMC Main
Pass Sulphur supply obligations hereunder, and, accordingly the pricing
provisions of Article V, [Confidential*] shall thenceforward be based upon the
[Confidential*] of the [Confidential*].
XX. NOTICES
Any notice, election, payment or other correspondence required or permitted
under this Agreement shall be made in writing and shall be sufficiently
delivered if delivered personally to the party to whom directed by courier or
otherwise deposited in the United States certified or registered mail, sent by
Western Union telegram or mailgram, or sent by telecopy if followed immediately
by written notice by U. S. certified or registered mail, with all necessary
postage or chores fully prepaid, return receipt requested (or in the case of a
telecopy, telegram or mailgram, confirmation of delivery), and addressed to the
party to whom directed at its below specified address, to wit:
As to FRP:
Freeport Sulphur Company Division
Freeport-McMoRan Resource Partners,
Limited Partnership
P. O. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
As to IMC:
IMC Fertilizer, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
As to IMC-Agrico Company:
IMC-Agrico Company
0000 Xxx Xxxxxxx 00
P. O. Xxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Such notice, election, payment or other correspondence shall be deemed to
have been properly given upon receipt by the party to whom directed. A party
may change its address for the purpose of notices or communications under this
Agreement by furnishing notice of the change to the other parties in compliance
with this Article XIX.
XXI. FRP/IMC AGREEMENTS
21.1 EXCESS IMC SULPHUR. As soon as practicable after the date hereof, FRP
and IMC shall negotiate in good faith the terms and conditions of, and execute,
an agreement whereunder FRP shall be obligated to dispose of any Excess IMC
Sulphur. Included in the terms and conditions of such Agreement shall be an
equitable commercial arrangement to compensate FRP for its services in
liquidating such Excess IMC Sulphur.
21.2. IMC MARINE TRANSPORTATION AND TERMINAL REQUIREMENTS. Not later
than the fourth quarter of each calendar year of the Contract Term, FRP and IMC
shall commence good faith negotiations for the provision by FRP, during the next
succeeding calendar year, and to the extent FRP at that time has existing and
available infrastructure therefor, of all marine transportation and sulphur
terminaling services required by IMC to fulfil its sulphur supply obligations to
Partnership during such succeeding year (except as to IMC sulphur produced at
the offshore Louisiana Main Pass 299 sulphur mine and transported by FRP under
that certain Restated Processing and Transportation Agreement between FRP and
IMC made as of July 1, 1990). [Confidential*].
XXII. SATCO EXCHANGES
FRP, directly or through FRP's affiliate, Sulphuric Acid Trading Company
("SATCO"), shall have the right at any time and from time to time to deliver to
any Partnership plant sulphuric acid of generally accepted commercial
specification in exchange for a grade-adjusted equivalent quantity of higher
grade sulphuric acid, provided such exchange in Partnership's judgment would not
adversely affect Partnership and provided FRP or SATCO, as the case
may be, reimburses Partnership for any actual cost incurred by Partnership in
connection with, and reasonably related to, the effectuation of the exchange.
XXIII. ASSIGNMENT
No party hereto shall have the right to assign, directly or indirectly, any
of such party's rights, interests or duties under this Agreement, without the
prior written consent of the other parties hereto, and any attempted such
assignment shall be void, except that such consent shall not be required in the
event of an assignment of this contract by a party hereto pursuant to a merger,
reorganization, amalgamation or sale or transfer of substantially all of such
party's assets.
XXIV. CONFIDENTIALITY
The parties agree that all terms and conditions of this Agreement and any
amendment or amendments thereof are confidential and shall not be disclosed
during the Contract Term by any party hereto to any party that is not a party to
this Agreement without the prior written consent of the other parties hereto;
provided, however, that such consent shall not be required in the case of a
party's disclosure thereof to such party's Affiliates, financial institutions,
legal and business advisers and consultants, or to parties with whom a party is
negotiating in good faith for the purpose of the sale of all or part of its
assets or for merger or consolidation or to any governmental agency pursuant to
any law, regulation or legal process. A party making such disclosure shall
notify the other parties hereto as to the identity of the party to whom
disclosure is made and shall direct the party to whom disclosure is made to
exercise a level of care sufficient to preserve the confidential nature of the
disclosed information, or in the case of disclosure to a governmental agency,
use its best efforts to restrict, to the full extent permitted by law or
regulation, its distribution.
XXV. DAMAGES
No claim shall be made by or allowed against any party hereto for indirect
or consequential damages of another party hereto, including loss of revenues or
loss of profits, or for punitive damages.
XXVI. AMENDMENTS
This Agreement may be amended or modified only by due agreement of all the
particle hereto and execution of a written amendment(s) thereto.
XXVII. GOVERNING LAW
The validity, operation and performance of this contract shall be governed
and controlled by the law of the State of Florida, and its terns shall bail
construed and interpreted in accordance with said law without reference to
principles of conflict of laws.
XXVIII. SUCCESSORS AND ASSIGNS
The terms, conditions, covenants and agreements contained in this Agreement
shall extend to, be binding upon, and inure to the benefit of the successors and
permitted assignees of the parties.
XXIX. CONFLICT OF INTEREST
All parties hereto shall exercise reasonable care and diligence to prevent
any actions or conditions which could result in a conflict of interest.
XXX. HEADINGS
The headings used in this Agreement are for convenience only and shall not
be taken or construed to define or limit any of the terms or provisions of this
Agreement.
IN WITNESS WHEREOF, this Agreement is executed by the parties on the date
first set out above.
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxx
----------------------------------
Title:General Counsel
--------------------------------
IMC FERTILIZER, INC.
BY: /s/ Xxxxx X. Xxxxx
----------------------------------
Title: Executive Vice President
--------------------------------
IMC-AGRICO COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Title: Vice President
--------------------------------
Schedule A Agreed basis for determining Base Sulphur to Supplemental
Sulphur Supply Ratios [CONFIDENTIAL]
Schedule B Sulphur Allocation Worksheet [CONFIDENTIAL]
ADDENDUM NO. 1 TO AGREEMENT FOR SULPHUR SUPPLY
This Addendum No. 1, dated as of January 1, 1994 ("Addendum") to AGREEMENT
FOR SULPHUR SUPPLY, dated July 1, 1993 ("Agreement") is entered into among
Freeport-McMoRan Resource Partners, Limited Partnership ("FRP"), IMC Fertilizer,
Inc. ("IMC"), and IMC-Agrico Company ("IMC-Agrico"). Captioned terms used herein
without definition shall have the same meaning given them in the Agreement.
Now, therefore FRP, IMC and IMC-Agrico hereby agree to determine the
quantity of ''Excess IMC Sulphur" (EIS), defined in Section 1.08 of the
Agreement as of the close of any month as follows:
Quantity of IMC sulphur over/(under) supplied to "Partnership Plant" as
calculated by Schedule B of the Agreement......................................#
Plus...IMC sulphur held by FRP in liquid inventory for whatever reason from
all sources including but not limited to, sulphur acquired from arms-length
purchase contracts, sulphur residing with FRP under transportation or
terminating agreements, sulphur sales by FRP to IMC pursuant to Section XVI fit
the Agreement, IMC sulphur acquired through exchanges, and sulphur withdrawn
from solid inventory for IMC's account by FRP, but excluding Allowable IMCF
Working Liquid Inventory ("IMCWLI") and IMCF Sulphur as defined below..........#
Less IMCWLI...........................................................12,000
Equals EIS.................................................................#
Upon mutual agreement of all parties, the IMCWLI may be revised upward or
downward from time-to-time. Adjustments, for the most part will be determined by
transportation and/or terminal contractual agreement(s) between IMC and FRP for
the use of FRP facilities by IMC.
Within seven business days following IMC's receipt of a written notice from
FRP to IMC of the existence of EIS, IMC shall notify FRP in writing of the
liquidation option that FRP shall use to dispose of the EIS. Liquidation
options shall include the following:
A. FRP markets EIS on behalf of IMC when market conditions allow, or
B. EIS is vatted by FRP for IMC's account.
FRP's notice to IMC of the existence of an EIS shall include the market
sales price which FRP can obtain and the commercial arrangements to compensate
FRP for its services under liquidation option A and FRP's solid sulphur
inventory costs associated with liquidation option B. Depending upon IMC's
liquidation option, IMC shall execute a sulphur marketing agreement or solid
storage agreement with FRP containing the cost terms contained in the EIS
notice. Should IMC fail to execute such an agreement within seven business days
following IMC's receipt of notice from FRP to IMC of the existence of EIS, all
EIS shall be considered as placed in solid inventory for IMC's account pursuant
to liquidation option B.
ADDENDUM NO 1 TO AGREEMENT FOR SULPHUR SUPPLY
The storage cost of sulphur and solid inventory is time sensitive. Labor, fuel,
equipment and environmental costs will change over time. From time-to-time,
and/or as required, revised costs will be provided to IMC. Accordingly,
Freeport will make best efforts to identify representative costs associated with
vatting and melting sulphur in parcels of 50,000 tons. Requests by IMC to vat or
melt in quantities less than 50,000 tons could result in additional costs.
FRP's 1994 solid sulphur inventory handling costs are as follows:
Vatting Charge .......... [Confidential*] (invoiced as EIS is placed into
solid inventory)
Melting Charge ......... [Confidential*] (invoiced as EIS is withdrawn from
solid inventory)
IMCF SULPHUR
In determining solid storage vatting and melting requirements and the costs
attributable thereto, the terms and provisions of the Processing and
Transportation Agreement, as amended, between Freeport Sulphur Company, a
division of Freeport McMoRan Resource Partners Limited Partnership, and IMC
Fertilizer, Inc., dated December 1, 1989, shall apply.
In witness hereof, the parties hereto have caused this Addendum to be
executed as of the date first above written.
FREEPORT-McMoRan RESOURCE
PARTNERS, Limited Partnership
By: /s/ J. R. Xxxxx
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Title: VICE PRESIDENT
IMC FERTILIZER, INC.
By: /s/ Xxxxx X. Xxxxx
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Title. EXECUTIVE VICE PRESIDENT-
OPERATIONS
IMC-AGRICO COMPANY
By: /s/ Xxxxx X. Xxxxx
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Title: EXECUTIVE VICE PRESIDENT-
OPERATIONS
AMENDMENT NO. 2 TO AGREEMENT FOR SULPHUR SUPPLY
This Amendment, dated July 1, 1994 by and between Freeport-McMoRan Resource
Partners, Limited Partnership ("FRP"), IMC Fertilizer, Inc. ("IMC") and
IMC-Agrico Company ("IMC-Agrico").
W I T N E S S E T H:
WHEREAS, FRP, IMC and IMC-Agrico entered into that certain Agreement for Sulphur
Supply, dated July 1, 1993 and Addendum No. 1 thereto, dated January 1, 1994
(hereinafter collectively called the "Agreement"); and
WHEREAS, the parties to the Agreement desire to amend same as hereinafter
provided.
NOW, THEREFORE, it is hereby agreed by and among FRP, IMC and IMC-Agrico to
amend the Agreement as follows:
1. Article I. Definitions, Section 1.11 is amended by deleting therefrom any
and all references to subclause (i) thereof.
2. Article I. Definitions, Section 1.12 is amended by deleting therefrom any
and all references to subclause (i) thereof.
3. The effective date of this Amendment shall be July 1, 1994.
All of the terms and conditions of the Agreement, as amended, shall remain in
full force and effect.
IN WITNESS WHEREOF, FRP, IMC and IMC-Agrico have executed this Amendment on the
date first hereinabove set forth.
Freeport-McMoRan Resource Partners,
Limited Partnership
By: /s/ J. R. Xxxxx
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Its: Vice President
IMC Fertilizer, Inc.
By: /s/ Xxxxx X. Xxxxx
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Its: President & COO
IMC-Agrico Company
By: /s/ Xxxxx X. Xxxxx
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Its: Vice President
FORM OF AMENDMENT NO. 3 TO AGREEMENT FOR SULPHUR SUPPLY
This Amendment, dated October 1, 1997, by and between Freeport-McMoRan Resource
Partners, Limited Partnership ("FRP"), IMC Fertilizer Inc.("IMC") and IMC-Agrico
Company ("IMC-Agrico"),
W I T N E S S T H:
WHEREAS, FRP, IMC and IMC-Agrico are parties to that certain Agreement for
Sulphur Supply, dated July 1, 1993, as amended, (the "Agreement"), and
WHEREAS, the parties to the Agreement desire to amend it as hereinafter
provided,
NOW, THEREFORE, FRP, IMC and IMC-Agrico hereby agree to amend the Agreement as
follows:
1. Article IX is amended by adding a new Section 9.4:
"XXXXXXXX PLANT EXCEPTION. The specifications set forth in
Section 9.1 above shall apply to all sulphur delivered
hereunder to the Xxxxxxxx plant except that such sulphur
shall contain not more carbon than would raise the
calculated percentage of carbon in a storage tank at the
Xxxxxxxx plant to a level greater than 0.6%."
2. The effective date of this amendment shall be October 1, 1997.
3. All of the terms and conditions of the Agreement, as amended, shall remain
in full force and effect.
IN WITNESS WHEREOF, FRP, IMC and IMC-Agrico have executed this Amendment on the
date first hereinabove set forth.
Freeport-McMoRan Resource Partners,
Limited Partnership
By:
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Its:
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IMC Fertilizer Inc.
By:
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Its:
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IMC-Agrico Company
By:
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Its:
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