**Exhibit
10.16**
 **CONFIDENTIAL
TREATMENT**
 
 
 
 Contract
No. 19032
 
 
 
 **CONTRACT
FOR SALE AND**
 **PURCHASE
OF LIQUID HELIUM**
 **between**
 
 
 
 **KEYES
HELIUM COMPANY, LLC**
 
 
 **and**
 
 
 
 
 **AIR
PRODUCTS HELIUM, INC.**
 
 
 
 **amended
and restated as of**
 
 
 
 **1
January 1999**
 
 
 
  
 
   TABLE
OF CONTENTS
 ARTICLE
    PageI
    DEFINITIONS
    2II
    FACILITY
    7III
    TERM
    8IV
    SALE
      AND PURCHASE OF HELIUM
    8V
    PRICE
    10VI
    TOLLING
    14VII
    QUALITY
    16VIII
    MEASUREMENT
    17IX
    PREPARATION
      AND DELIVERY
    17X
    BILLING
      AND PAYMENT
    19XI
    FORCE
      MAJEURE
    20XII
    REGULATION:
      WAIVER OF DEFAULT
    21XIII
    WARRANTY
    21XIV
    GENERAL
    22XV
    NOTICES
    23XVI
    GOVERNING
      LAW
    25
 
   
   
   **CONTRACT
FOR SALE AND PURCHASE OF LIQUID HELIUM**
 **AS
AMENDED AND RESTATED**
 
 
 **THIS
AGREEMENT** is made
and entered into, as amended and restated, as of the 1 st day of
January 1999, by and between **KEYES**  **HELIUM
COMPANY, LLC,** a **** Colorado
limited liability company (“KHC” or “Seller”) and **AIR
PRODUCTS HELIUM, INC** ., a
Delaware corporation, (“Buyer”).
 
 
 W I T
N E S S E T H :
 
 **WHEREAS** , Seller
has access to sources of natural gas containing Helium, and is able to supply
Liquid Helium from Seller’s purification and liquefaction facility located in
Cimarron County, Oklahoma;
 
 **WHEREAS** , Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller, the Liquid
Helium production from Seller’s facility; and
 
 **WHEREAS** , Buyer
has Crude Helium available for Tolling in Seller’s Facility on the terms set
forth herein.
 
 **NOW,
THEREFORE,** in
consideration of the premises and the agreements contained herein, Seller and
Buyer mutually covenant and agree as follows:
 
 
 
 
 
  ARTICLE
I
 
 DEFINITIONS
 
 Unless
the context otherwise requires, and in addition to the terms defined above, the
following terms shall have the following respective meanings, all definitions
being equally applicable to both the singular and plural forms.
 
 “Additional
Volumes” means any volumes of Helium owned by Seller, which are produced or
which Seller expects to produce at a facility other than Seller’s Facility, and
which are not subject to Seller’s obligations to third parties predating this
Agreement.
 
 “Adjustment
Period” means: (a) for purposes of the Tier I volume price
 
 adjustment
provided for in Section *5.2,* the 12
Month period commencing 1 October
 
 1994 and
ending 30 September 1995 and each 12 Month period thereafter; and (b)
for
 
 purposes
of the Tier II volume price adjustment provided for in Section 5.2, the
12
 
 Month
period commencing 1 October 1995 and ending 30 September 1996 and
each
 
 12 Month
period thereafter.
 
 “Affiliate”
means, with respect to a person, any other person who is directly or indirectly,
controlling, controlled by, or under common control with, the
person.
 
 “Article”
means an Article of this Agreement, unless otherwise noted.
 
 “Base
Period” means: (a) for purposes of the Tier I volume price
adjustment
 
 2
 
 provided
for in Section 5.2, Buyer’s 1994 fiscal year, 1 October 1993 - 30 September
1994;
 
 and (b)
for purposes of the Tier II volume price adjustment provided for in Section 5.2,
 
 Buyer’s
1995 fiscal year, 1 October 1994 - 30 September 1995.
 
 
 
 “Buyer”
means Air Products Helium, Inc., a Delaware corporation, and, for purposes of
Section 5.2, its Affiliates.
 
 “Commencement
Date” means the first day of the month in which the first delivery of Liquid
Helium to Buyer under this Agreement occurs, namely, 1 January
1999.
 
 “Contract
Year” means each period of 12 consecutive Months beginning on the 1 January
after the Commencement Date and each succeeding 1 January.
 
 “Crude
Helium” means the gaseous product extracted from natural gas, which product is
comprised of Helium together with other constituents of natural gas and which is
acceptable for storage in the BLM System.
 
 “Force
Majeure” means act of god, strike, lockout or other industrial disturbance, act
of public enemy, war, blockade, insurrection, riot, epidemic, landslide,
lightning, earthquake, fire, storm, flood, washout, arrest and restraint of
rulers and peoples, civil disturbance, explosion, breakage or accident to
machinery or equipment, or lines of pipe, freezing of wells or lines of pipe,
partial or entire failure of gas wells or pressure
 
  3
  protection
devices, machinery or equipment breakdown, scheduled and unscheduled maintenance
of equipment, inability to obtain materials, supplies, or permits, and any laws,
orders, rules, regulations, acts or restraints of any government or governmental
body of authority whether civil or military, and any other cause, whether
similar or dissimilar to any of the causes or categories of causes described
above, not within the reasonable control of the Party claiming suspension and
which by the exercise of due diligence such Party is unable to
avoid.
 
 “Helium”
is an element with unique properties such as the second lightest, next to
hydrogen, inert to chemical reaction, high thermal conductivity and the lowest
boiling point, 4.2°K, of any known element.
 
 “Liquid
Helium” means Helium in the liquid state.
 
 “MCF”
means one thousand SCF, and “MMCF” means one million SCF.
 
 “Merchant
Helium” means all sales of refined Helium sold by Buyer to unrelated third
parties on other than a wholesale or swap basis.
 
 “Month”
means a period of time beginning at 8:00 a.m. local time at Seller’s Facility on
the first day of a calendar Month an ending at 8:00 a.m. local time at Seller’s
Facility on the first day of the next succeeding calendar
Month.
  4
   “Notice”
means a written notice, and “Notify” means the giving of a Notice, in accordance
with Section 15.1.
 
 “Party”
or “Parties” means KHC and/or Air Products Helium, Inc., and their successors or
assigns.
 
 “Required
Volumes” has the meaning identified in Section 4.1.
 
 “Sales
Value” means the proceeds of the Total Volume sold for delivery during the Base
Period or the applicable Adjustment Period in the United States of America.
Sales Value shall not include amounts that Buyer charges customers for
equipment, freight and service charges.
 
 “Sales
Volumes” means all volumes of Helium owned by Seller which are produced at
Seller’s Facility (including any expansion of Seller’s Facility).
 
 “SCF”
means the volume of Helium contained in one cubic foot of space at a temperature
of 70° F and at an absolute pressure of 14.7 pounds per square inch. As used
with reference to Helium, SCF means the quantity of liquid which in the vapor
phase at the above conditions of temperature and pressure will occupy one cubic
foot of space. One pound of Helium is equivalent to 96.71 SCF.
 
 “Section”
means a Section of this Agreement, unless otherwise noted.
 
   5
   “Seller”
means KHC, its successors and assigns and, for purposes of Section 4.2 only, CIG
Resources Company, an Affiliate of KHC.
 
 “Seller’s
Facility” means Seller’s Helium purification and liquefaction plant located in
Cimarron County, Oklahoma.
 
 “Supply
Period” means the period beginning on the Commencement Date, and continuing for
a period of 252 consecutive Months after the Commencement Date, unless extended
thereafter by mutual consent.
 
 “Taxes”
means any tax, assessment, excise or duty applicable to the transactions
contemplated hereby.
 
 “Toll
Price” means the price per MCF for Tolling Tolled Volumes, as set forth in
Article VI.
 
 “Tolled
Volumes” means volumes of Crude Helium Buyer Tolls pursuant to Article
VI.
 
 “Tolling”
or “Tolls(s)” means the refining of Buyer’s Crude Helium at Seller’s Facility
for the Toll Price.
 
 “Total
Volume” means the volume of Merchant Helium sold by Buyer and its
 
 6
 
 Affiliates
in the United States of America in arms-length sales to unrelated third parties
expressed in MCF.
 
 “Unit”
means Helium tankers or containers.
 
 “Unit
Price” means the price per MCF (per volume tier) sold and purchased hereunder,
as set forth in Article V.
 
 “BLM”
means the United States Bureau of Land Management.
 
 “BLM
System” means the BLM Storage and Pipeline System.
 
 
 ARTICLE
II
 
 FACILITY
 
 2.1. Installed
Facility . Seller
has constructed and placed in operation Seller’s Facility.
 
 2.2. Seller’s
Obligation to Obtain Contracts . It is
recognized by the Parties that Seller’s ability to supply Helium to Buyer is
dependent upon Seller obtaining contracts with third parties to supply Seller’s
Facility with natural gas containing Helium. The Parties recognize, however,
that Seller makes no representation or warranty of an ability to obtain
contracts to supply Seller’s Facility natural gas containing
Helium.
 
 2.3 Seller’s
Facility Capability .
Seller’s Facility has an installed nominal
 
  7
  capacity
of 170 MMCF of Liquid Helium per Contract Year. Actual capacity on a daily
operating basis is currently approximately 150 MMCF of Liquid Helium per
Contract Year. Seller agrees to refine, at Seller’s facility, Additional Volumes
of Crude Helium produced at any other facility connected to the BLM System, in
lieu of requiring Buyer to provide Tolled Volumes pursuant to Section
6.1.
 
 
 ARTICLE
III
 
 TERM
 
 3.1. Term . The
term of this Agreement shall be from the execution hereof until terminated in
accordance with the other provisions of this Agreement.
 
 3.2. Primary
Term . Either
Party may terminate this Agreement as of
 
 December
31, 2021, or as of any anniversary date thereafter by giving not less than
24
 
 Months
prior Notice to the other Party, which Notice shall be given in accordance
with
 
 Section
15.1, subject to any extensions pursuant to Section 11.2.
 
 ARTICLE
IV
 
 SALE
AND PURCHASE OF HELIUM
 
 4.1 Basic
Obligation . During
each Contract Year during the Supply Period Buyer shall purchase, at the Unit
Price, all of the Sales Volumes produced at Seller’s Facility (“Required
Volumes”).
 
 4.1.1 If,
in any Contract Year, Buyer fails to take all of the Required Volumes, Buyer
shall make a payment to Seller as determined by multiplying the
difference
 
 8
 
   between:
(a) the Sales Volumes actually taken by Buyer; and (b) the Required Volumes,
times the Unit Price. Such payment shall be made within 30 days of the end of
the applicable Contract Year.
 4.1.2
Buyer shall use reasonable good faith efforts to take Helium hereunder in
relatively equal monthly quantities.
 
 4.2 Additional
Volumes . Seller
shall Notify Buyer and solicit from Buyer an offer of purchase of any Additional
Volumes other than (a) those Additional Volumes of Crude Helium processed at
Seller’s Facility and (b) those Additional Volumes Seller chooses to store. If
Buyer Notifies Seller that it elects not to purchase such Additional Volumes, or
does not respond within 90 days thereafter, Seller may offer such Additional
Volumes to third parties. If Buyer offers to purchase such Additional Volumes,
Seller may during the next 90 days solicit offers of purchase from third
parties, but Seller may not sell such Additional Volumes to a third party on
terms more favorable to the third party than those offered by Buyer. If Seller
has not agreed to sell such Additional Volumes to a third party within this
period, or elected to store or not produce such Additional Volumes, Buyer’s
offer shall be deemed accepted. Buyer shall have the rights in this Section 4.2
for such Additional Volumes only where such rights do not conflict with Seller’s
obligations predating this Agreement or with Seller’s ability to enter into new
projects (including with Nitrotec Corporation).
 
  9
    ARTICLE
V
 
 PRICE
 
 5.1 Unit
Price . The
Unit Price shall be F.O.B. the Seller’s facility and shall be:
 
 VolumeTier
    PriceUp
      to 70 MMCF (Tier I volume)
    **[****]**Above
      70 MMCF (Tier II volume)
    **[****]**
 If in any
Contract Year the Required Volume is greater or less than 150 MMCF, then the
billed amount for Tier II volumes for such Contract Year shall be adjusted as
follows:
 
 A.  Sales
Volumes > 70,000 MCF < 115,000,001 SCF shall be valued at **[****]**
 B.  Sales
Volumes> 115,000 MCF up to the total Required Volume shall be valued at **[****]**
 
 The sum
of A + **** B minus
the Tier II billed value for that Contract Year shall be invoiced or credited to
Buyer by Seller as an adjustment in the invoice for January of the following
Contract Year.
 
 5.2 Price
Adjustment . The
Unit Price shall be subject to annual adjustment with respect to all Contract
Years commencing on or after 1 January 1999, determined by application of the
following formula:
 
 Certain
confidential information has been omitted from this exhibit and filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934. Brackets surrounding asterisks on this page in
this exhibit denote the omission.
 10
   PN
    =
    $**[applicable
      Volume Tier price] x [XAP/XBP]Where:
    PN
    =
    the
      adjusted Unit Price for the particular Contract Year, in $/MCF, using the
      method set forth in this Section 5.2.
 Price
changes for Buyer shall be determined by calculating the average Sales Value
(“X AP ”) of
Buyer, in $/MCF, for Liquid Helium sold by Buyer during the Adjustment Period
immediately prior to the commencement of the Contract Year for which the
adjusted Unit Price is being determined, which shall be calculated in accordance
with the following formula:
 
 XAP
    =
    SAP/VAPWhere:
    SAP
    =
    Sales
      Value from sales of Merchant Helium by Buyer
      during
      the Adjustment Period.VAP
    =
    Total
      Volumne in MCF of Merchant Helium sold by Buyer corresponding to
      Buyer’s Sales Value duringthe
      Adjustment Period.
  The
initial calculation for that portion of any adjustment attributable to a change
in average sales price shall equal the net change, from fiscal 1994 and 1995, in
Buyer’s sales revenues and volumes for the Adjustment Period. Annual price
adjustments shall be effective 1 January of each subsequent Contract
Year.
 
 The
average sales price of Buyer, in $/MCF, for Helium sold by buyer during
the
 
 
 11
  Base
Period (“X BP ”) **** shall **** be
calculated in accordance with the following formula:
 
 XBP
    =
    SBP/VBPWhere:
    SBP
    =
    Sales
      Value from sales of Merchant Helium by Buyer during the Base
      Period.VBP
    =
    Total
      volume in MCF of Merchant Helium sold by Buyer corresponding to Buyer’s
      Sales Value during the Base Period.
 
 5.3 Unit
Price Floor . Buyer
and Seller agree that the Unit Price for Liquid Helium delivered hereunder shall
be not lower than **[** **$45.00/MCF** **]** for the
first 70 MMCF (Tier I volume) of Liquid Helium sold to Buyer during any Contract
Year, and not lower than **[** **$38.00/MCF** **]** for all
Liquid Helium sold to Buyer above 70 MMCF (Tier II volume) in any Contract
Year.
 
 5.4 Books
and Records . Buyer
shall maintain true and complete books of account, containing an accurate record
of all information necessary for the proper computation of the Unit Price for
Helium under the procedure described above in Section 5.2. Buyer shall transmit
to Seller within three Months after the end of the Base Period or applicable
Adjustment Period, as the case may be, the weighted average selling price for
the Base Period or Adjustment Period required in the application of such
formulae. For a period of not more than two years from the transmittal of said
weighted average price data, Seller shall have the right at all reasonable times
to inspect such books to such extent as may be reasonably necessary to verify
such data. Such inspection shall be subject to such restriction on disclosure as
may be
 
 12
  reasonably
necessary to protect the confidentiality of proprietary information of Buyer.
Buyer is not required to preserve said books for longer than two years from the
transmittal of said price data to which such books relate.
 
 5.5 Taxes . Seller
shall be responsible for Taxes imposed or assessed prior to the point of
delivery into Buyer’s Units. Buyer shall be responsible for Taxes imposed or
assessed after the point of delivery into Buyer’s Units, provided, however,
Taxes levied or imposed by any future law or any governmental authority in
connection with the transactions contemplated hereby (excluding, however, any
tax upon the net income of Seller imposed by a governmental authority of the
United States of America, and further excluding any reimbursement in whole or in
part for any liability which Seller may have to any third party, including
without limitation any oil and gas lessor, lessee, mineral owner or pipeline
company, with respect to any sums attributable to the Helium sold by Seller to
Buyer hereunder) shall, if paid by Seller as the result of performance of the
Agreement, be added to the price and paid by Buyer. Any further real or personal
property Taxes shall only be payable by Seller if solely attributable to the
Helium purification and liquefaction portions of the Seller’s Facility. Prior to
the payment of any such Taxes, Buyer shall be afforded the opportunity to
challenge any such Taxes at its election and expense.
 
 5.6 Price
Renegotiation . For
Contract Years commencing 1 January 2009 and 1 January 2016, the then-current
Unit Price, the Unit Price floor mentioned in Section 5.3, Toll Price and
adjustment terms for Helium and Tolling under this
  13
  Agreement,
shall be subject to renegotiation upon Notice by either Party to the other. Such
Notice shall be given not later than the 1 October 2007 and 1 October 2014,
respectively. If the Parties have been unable to reach agreement prior to the 1
October 2008 or 1 October 2015, as the case may be, after having conducted
good-faith negotiations with respect to the modification of the then-current
Unit Price, the Unit Price floor mentioned in Section 5.3, Toll Price and
escalation terms, then either Party shall have the right to terminate this
Agreement as of December 31, 2008, and December 31, 2015,
respectively.
   ARTICLE
VI
 
 TOLLING
 
 6.1 Tolling
Request By Seller . If
requested by Seller, Buyer will provide Crude Helium via the BLM System to be
Tolled by Seller through Seller’s Facility up to the quantity of Crude Helium
sufficient to allow Seller’s Facility to produce 170 MMCF per year of Liquid
Helium during the fifth through tenth Contract Years of the Supply Period (not
to exceed 500 MMCF of Tolled Volumes during the fifth through tenth Contract
Years). If, in any Contract Year, Buyer fails to provide Tolled Volumes which
have been requested hereunder, Buyer shall make a payment to Seller as
determined by multiplying the amount of the Tolled Volumes requested but not
provided, and the Toll Price. Such payment shall be made within 30 days of the
end of that Contract Year.
 6.2 Tolling
Request by Buyer . Seller
will Toll Crude Helium at Buyer’s request
 
 14
 if (a)
capacity is available at Seller’s Facility, and (b) Buyer tenders a quantity of
Crude Helium sufficient to allow Seller’s Facility to produce up to 170 MMCF of
Liquid Helium per Contract Year. Seller may shut down Seller’s Facility at the
end of any Contract Year and terminate this Agreement if Buyer has failed to
give the Notice required under Section 6.3 during such Contract
Year.
 
 6.3 Notices
of Tolling Requirement . During
the first six Contract Years, Seller will provide Buyer, for each Contract Year
no later than 15 November of the previous Contract Year, a Notice containing a
forecast of Seller’s Tolling capacity available and whether such Tolling will be
required during the next Contract Year. Starting in the sixth Contract Year,
Buyer will provide Seller, for each contract Year no later than 15 November of
the previous Contract Year, a Notice containing a forecast of Buyer’s Tolling
requirements for the subsequent Contract Year. Seller shall be prepared to Toll
such forecasted volume, but Seller’s obligation to Toll shall be limited to the
Tolling capacity available during such Contract Year. Seller’s Tolling capacity
shall be limited to the extent that Seller has available Crude Helium from other
sources for processing, which shall take precedence to Tolling Buyer’s Crude
Helium.
 6.4 Toll
Price . Buyer
shall pay **[**** ****]** per MCF
(“Toll Price”) for the Liquid Helium produced by Tolling and delivered into
Buyer’s Units. Buyer shall be responsible for any BLM charges associated with
Tolled Volumes. The Toll Price is subject to adjustment in accordance with
Section 6.6.
 
 __________________________
Certain
confidential information has been omitted from this exhibit and filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934. Brackets surrounding asterisks on this page in
this exhibit denote the omission.
 15
  6.5 Delivery
of Tolling Quantities . Buyer
will provide Seller via the BLM
 System
1.02 units of Crude Helium for each unit of Liquid Helium to be delivered
into
 Buyer’s
containers at Seller’s Facility on a schedule mutually agreed to by Buyer
and
 Seller.
 
 6.6 Toll
Price Adjustment . The
Toll Price shall be adjusted 1 January 1999 and on each 1 January thereafter by
the same percentage change in Seller’s Liquid Helium price for Tier I volumes as
calculated in Section 5.2. Buyer and Seller agree that the Toll Price shall not
be lower than **[*** *****  ****]** during
any Contract Year.
 
 ARTICLE
VII
  QUALITY
 
 7.1 Purity . All
Liquid Helium delivered hereunder shall have a purity of not less than 99.999%
Helium by volume in accordance with Compressed Gas Association Helium
Specification G-9.1 Grade P-1992.
 
 7.2 Crude
Helium Specification . All
quantities of Crude Helium delivered hereunder shall conform to the
specification set forth in the contracts between the BLM and Buyer and/or Seller
to store Crude Helium in the BLM System.
 
 7.3 Samples . For
quality control purposes, representative samples of Helium after being vaporized
shall be analyzed by Seller by gas chromatography, or other mutually agreeable
method, as required.
 
 
 __________________________

Certain
confidential information has been omitted from this exhibit and filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934. Brackets surrounding asterisks on this page in
this exhibit denote the omission.
 16
 ARTICLE
VIII
 MEASUREMENT
 
 8.1 Scales . Seller
shall install, own, operate and maintain equipment, scales and instruments
required for the measurement of Liquid Helium delivered hereunder. Seller shall
weigh each Unit used for the transportation of Buyer’s Liquid Helium, with the
Unit’s liquid nitrogen reservoir completely filled, immediately before and after
filling and calculate the quantity, by weight, of Liquid Helium delivered into
each such Unit, converted to SCF of Helium. At the time of weighing of the Unit
prior to shipment, pressure within the Unit shall not exceed 3 **** pounds
per square inch gauge. Buyer shall have the right to witness testing or
calibration of Seller’s measuring equipment, scales or instruments. Buyer hall
have the right at all reasonable times to inspect the above-referenced records
covering not more than 24 Months immediately preceding each such inspection.
Seller shall not be obligated to preserve such records for more than two
years.
 
 8.2 Unit
of Measurement . The
unit of measurement for measuring Helium hereunder shall be one
SCF.
 
 ARTICLE
IX

PREPARATION
AND DELIVERY
 
 9.1 Liquid
Nitrogen . Seller
shall fill with liquid nitrogen the shielding reservoirs in Buyer’s Units as
required at Seller’s Facility. Buyer shall pay Seller $200 for the liquid
nitrogen furnished to Buyer by Seller for use in the preparation and filling of
the shielding reservoir of each of Buyer’s Units regardless of
size.
 
 17
 9.2 Service
Charges . Service
charges for cool down and purging Buyer’s Units required by Seller at Seller’s
Facility shall be as follows:
  9.2.1  The
charge for Helium used to cool down buyer’s Units to Liquid Helium temperatures
shall be a lump sum of **[**** *****  ***]** for
those Units arriving at Seller’s Facility with an inside temperature of minus
315°F or lower and a lump sum of **[****]** for
those Units arriving at Seller’s Facility with an inside temperature of minus
316°F or above, but no cooldown charge will be assessed for Units arriving at
Seller’s Facility with an inside temperature of minus 423°F or
lower.
 
 9.2.2  Buyer’s
Units arriving at Seller’s Facility in a contaminated condition will be assessed
a charge of **[****]** to purge
these Units when the contamination is greater than 150 ppm.
 
 9.3 Suitable
Containers . Buyer
assumes full responsibility for providing Units suitable for filling by Seller.
Buyer shall use reasonable efforts to provide Units with minimum residual for
filling at Seller’s Facility. Seller shall have the right to refuse to fill
Buyer’s Units if they are not in a condition normally acceptable in the industry
for filling with Liquid Helium. Buyer shall provide a suitable Unit for filling
at Seller’s Facility at all times during the Supply Period. Buyer and Seller
will cooperate so that the scheduling of Units for delivery of Liquid Helium is
on a reasonably consistent basis, and that the unavailability of such Units does
not disrupt operations of Seller’s Facility.
 
 __________________________
Certain
confidential information has been omitted from this exhibit and filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934. Brackets surrounding asterisks on this page in
this exhibit denote the omission.
 18
 9.4 Delivery
Point . The
Liquid Helium and liquid nitrogen shall be delivered to Buyer F.O.B. Buyer’s
Units at Seller’s Facility.
 
 ARTICLE
X
 
 BILLING
AND PAYMENT
 
 10.1 Statement Seller
shall render to Buyer bimonthly (i.e., twice a month) a billing statement
showing the quantity of Helium delivered, the applicable Unit Piece, the
applicable Toll Price (volumes of Liquid Helium produced by Tolling to be
clearly identified), the total amount due for Helium, the rate for preparation
of each Unit, the total amount due for preparation of Units during the billing
period, the total amount due for Unit service charges, and the total amount due
Seller for that shipment. Reconciliation of Tolled Volume balances shall be on a
monthly basis within 30 days of statement date.
 
 10.2 Payment . Buyer
shall, within 15 days after receipt of the billing statement described in
Section 10.1, pay to Seller the amount of money due Seller for Helium, and
service charges for the shipments covered by the statement.
 
 10.3 Claims . Notice
of any claims based on an error in any billing statement rendered or payment
made shall be given to the Party against whom such claim is made with 24 Months
from the date of the relevant billing statement or payment, and in the absence
of such Notice each such billing statement and each such payment shall be
conclusively presumed to be correct.
  19
 
 10.4 Books
and Records . Seller
shall maintain true and complete books of account, containing an accurate record
of all price and production information necessary for the proper computation of
the information required for each billing statement in accordance with Section
10.1. Buyer shall have the right at all reasonable times to inspect such records
of Seller to such extent as may be reasonably necessary to verify such
information for a period of not more than two years from the date of the
applicable billing statement. Such inspection shall be subject to such
restriction on disclosure as may be reasonably necessary to protect the
confidentiality of proprietary information of Seller. Seller is not required to
preserve said books and records for longer than said two year
period.
 
 
 ARTICLE
XI
 
 FORCE
MAJEURE
 
 11.1 Relief
From Performances . In the
event of either Party being rendered unable wholly or in part by Force Majeure
to carry out any of its obligations under this Agreement, other than to make
payments of amounts due hereunder, upon such Party giving Notice to the other
Party, stating the full particulars of such Force Majeure as soon as possible
after the occurrence of the cause stated in said Notice, performance of the
obligations of the Party giving such Notice, so far as they are affected by such
Force Majeure, shall be suspended during the continuance of any inability so
caused by no longer period, and such inability to perform shall, so far as
possible, be remedied with all reasonable dispatch.
 
 20
  11.2 Extension
of  Time . When
Seller is unable by reason of Force Majeure to supply any Helium which Seller is
otherwise obligated to supply to Buyer hereunder, then the supply Period will be
extended as necessary to permit Seller to supply such Helium to
Buyer.
 
 
 ARTICLE
XII
 
 REGULATION:
WAIVER OF DEFAULT
 
 12.1 Regulations . This
Agreement is subject to valid present or future, laws, rules, regulations, and
orders of duly constituted authorities having jurisdiction or
control.
 
 12.2 No
Waiver . No
waiver by either Party of any one or more defaults by the other in the
performance of any provisions of this Agreement shall operate or be construed as
a waiver of any future default or defaults, whether of a like or of a different
character.
 
 
 ARTICLE
XIII
 
 WARRANTY
 
 13.1 Seller’s
Warranties . Seller
warrants that the Sales Volumes delivered to Buyer shall conform to the
specification set forth in Section 7.1, and that at the time of delivery, Seller
shall have good title and right to transfer the same and that the same shall be
delivered free of encumbrances.
 
 21
 13.2 Buyer’s
Warranty . Buyer
warrants that, as to the Tolled Volumes, Buyer shall have good title and right
to transfer the same for Tolling and that the same shall be delivered free of
encumbrances.
 
 13.3
    No
      Other Warranties.**THE WARRANTIES SET FORTH IN
SECTIONS**
 
 **13.1**  **AND
13.2 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR**
 
 **IMPLIED,
IN FACT OR BY LAW, INCLUDING, WITHOUT LIMITING THE**
 
 **GENERALITY
OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR**
 
 **FITNESS
FOR A PARTICULAR PURPOSE.**
 
 
 
 ARTICLE
XIV
 
 GENERAL
 
 14.1 Headings . All
headings appearing in this Agreement are for convenience only and shall not be
considered part of this Agreement for any purpose, or as in any way
interpreting, construing, varying, altering, or modifying this Agreement or any
of the terms and provisions thereof.
 
 14.2 Complete
Agreement . The
terms of this Agreement express and constitute the full agreement between the
Parties with respect to the subject matter thereof, and there are no warranties,
covenants, stipulations, or conditions existing apart from the terms of this
Agreement.
 
 14.3 Binding
Nature . This
Agreement shall be binding upon and inure to the
  22
 benefit
of the Parties, their successors and assigns.
 14.4  Assignment . This
Agreement shall not be assignable by any Party without the prior consent of the
other Parties given in accordance with Section 15.1, which assignment shall not
be unreasonably withheld
 
 14.5  Prior
Agreement . The
Contract for Sale and Purchase of Liquid Helium between Buyer and Seller dated 1
November, 1993, as amended, is terminated as of 1 January 1999. Provided
however, Buyer and Seller remain obligated for performance, payments and
accounting adjustments attributable to the period prior to 1 January
1999.
 
 ARTICLE
XV
 
 NOTICES
 
 15.1  Manner
of Giving Notice . All
notices and other writings expressly required to be given in accordance with
this Section 15.1 shall be in writing and shall be sent by registered or
certified United States Mail (return receipt requested), as
follows:
 
 **SELLER:**
 Keyes
Helium Company, LLC
 P.O. Box
1087
 Colorado
Springs, CO 80944
 Attention:  John
Connor
 
 **BUYER:**
 Air
Products Helium, Inc.
 7201
Hamilton Boulevard
 Allentown,
PA 18195-1501
 Attention:
Corporate Secretary
 
 23
 Notices
and other writings given under this Section 15.1 shall be deemed given effective
the third business day following the date of deposit thereof in the United
States Mail or with a recognized overnight courier.
 
 15.2 Other
Communications . All
communications given under this Agreement other than those Notices governed by
Section 15.1 shall be given in a manner such that the communication is likely to
be received in a timely manner by a responsible representative of the receiving
Party.
 
 15.3 Change
in Address . Either
Party shall have the right at any time to Notify the other in writing of a
different address to which Notices are to be sent under Section
15.1.
 
 15.4 Statements
and Billings . All
statements and billings to be given under this Agreement shall be in writing and
shall be delivered or sent to the Parties at the above--
 stated
addresses by regular U.S. Mail, postage prepaid or as otherwise agreed by the
Parties.
 
 15.5 Counterparts . This
Agreement may be executed in two or more counterparts, each of which shall have
full force and effect and shall be equally binding on the Parties.
 
 24
 ARTICLE
XVI
 GOVERNING
LAW
 
 This
Agreement, both as to interpretation and performance, shall be governed by the
laws of the State of Colorado, without giving effect to its conflict of laws
provisions.
 
 **IN
WITNESS WHEREOF** , the
Parties have caused their duly authorized representatives to execute this
Agreement in duplicate copies, each an original for all purposes, as of the date
and year first above written.
 **KEYES
      HELIM COMPANY, LLC**
    **AIR
      PRODUCTS HELIUM, INC.**By:*/s/*Donald
      J. Zinko
      Donald
      J. Zinko
      Chair,
      Managers’ Committee
    By:[Signature
      Illegible]
      Name:
      ________________
      Title:
      __________________
 ****
 25