Isoprene Sales Contract



 Exhibit 10.45 
  
 CONFIDENTIAL TREAMTMENT REQUESTED 
 WITH RESPECT TO CERTAIN PORTIONS HEREOF 
 DENOTED WITH “***” 
  
 CONFIDENTIAL 
  

					
	 	 	 	 	 Control No. 4950999

	

	 	SALES CONTRACT	 	 
	 	 	Dated: Sept 11, 1999	 	 

  
 1. PARTIES. 
  

	Shell: 	SHELL CHEMICAL COMPANY, for itself and as agent for Shell Oil Company 


	    	   (“Seller”), P.O. Box 2463, Houston, TX 77252-2463, Facsimile no. 713-241-6465. 

  

	Buyer: 	SHELL ELASTOMERS LLC. (For Belpre Plant) 

  
 2. PRODUCT. 
  

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 2.1. PRODUCT QUALITY. 
  
 Isoprene, (hereinafter referred to as “Product”) supplied and maintained on consignment at Belpre in accordance with Article 6, and will be in
accordance with specifications set forth in Exhibit A. 
  
 Seller
will facsimile to the Buyer at time of shipment a Certificate of Analysis (COA). Seller will provide Buyer six (6) months advanced notification if there is a change in the manufacturing process that will affect the material specifications of Product
provided to the Buyer. Product produced by the Seller in different plants is viewed as coming from different supply sources and requires separate qualifications. Product to be shipped for the Seller from third parties must be from a third party
qualified by the Buyer based on Buyer’s criteria as specified in Exhibit B. Buyer will have the right to confirm each such shipment-conforms to the agreed specification; 
  
 Seller must obtain approval prior to shipment any material that does not meet the Buyers specifications. If Seller
deliveries Product failing to comply with the specifications set out in Exhibit A, Seller will reimburse Buyer for freight expenses associated with such shipment and be entitled at its option to i) require Seller to replace such defective Product at
a price not to exceed the invoice value or ii) to reimburse the invoice value of the defective Product. 
  
 If, Buyer has cause to complain that the quality of Product delivered to it pursuant to the Contract does not comply with the specification set out in
Exhibit A, Buyer will give written notice specifying the nature of its complaint and the parties will promptly meet so as to resolve that complaint. In absence of any agreement to resolve the complaint the parties will appoint at their joint cost a
mutually acceptable independent surveyor to examine whether the quality of Product as delivered complied with the specifications set forth in Exhibit A. In 

  









 
the absence of any written notice from Buyer to Seller within 30 days after delivery of the Product, the Product shall be deemed to have been delivered and
accepted by Buyer in a satisfactory condition and in all respects in accordance with the specifications and Seller shall have no liability to Buyer with respect to that delivery. 
  
 3. PERIOD. The period of this Sales Contract will begin on July 1, 1999 and end on December 31, 2009, but will continue thereafter,
subject to termination effective on such ending date, or at any subsequent time, by either Party giving the other at least twelve (12) months’ prior written notice at any time for any reason, provided that such termination will not take effect
before December 31, 2009. 
  
 4. PRICE AND PAYMENT TERMS. 
  

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 4.2. TAX. Any tax (other than on income), duty or other governmental charge now or hereafter imposed on the Product or on any raw material used in
manufacturing the Product (or on Seller, or required to be paid or collected by Seller, by reason of the manufacture, transportation, sale or use of such Product or raw material) will be paid by Buyer in addition to the price. 
  
 5. QUANTITY. 
  
 5.1 Scheduling and planning 
  

The volume of Product shall be agreed to annually between Seller and Buyer, by October 1 of the previous year (Agreed Volume). 
  
 5.2 Five year production estimate 
  
 Buyer shall advise Seller by October 1 of each year of its best estimate of
the annual requirements of Product in the nearest following 5 years. 
  
 5.3 Three month rolling forecast 
  
 Subject to
Clauses 5.1 and 5.2 Buyer will indicate to Seller in writing its monthly requirement on the basis of a rolling three months program. This program will be revised and updated on a monthly basis and will 

  









 
be made available to Seller latest five working days before the beginning of the first month on the three months program. Seller will take all reasonable
efforts to supply Product based on Buyer’s forecast. 
  
 5.4 Information on shutdowns 
  
 Buyer and Seller
shall inform each other at earliest opportunity, but not later than twelve months before it occurs, of any planned shutdown or maintenance program, and its duration, which may affect Seller’s capability to supply, or Buyer’s capability to
purchase Product. Buyer shall use all reasonable efforts, given its own market requirements, to purchase Product approximately evenly spread each Month throughout the Year. 
  
 5.5 Variations to Agreed volumes 
  
 In case of persistent underperformance of a party versus agreed plan, the underperforming party will immediately inform the
other party and both will seek to resolve the problem in mutual agreement minimizing the impact on both businesses. 
  

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 5.7 Logistics Planning 
  
 In July of each year Buyer and Seller will agree on the numbers of railcars needed in isoprene service for the next year. There are 99 such cars in
service at time of execution of this contract. If additional railcars are required and Seller is able to provide such additional cars, Seller will provide these railcars at their actual leasing and maintenance cost. 
  

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 6. SHIPMENTS. With Buyer’s consent, which shall not be unreasonably withheld, Seller will select the origin of shipment and the carrier. The quantity of all
bulk rail and truck shipments will be determined by Seller by outage tables with corrections for temperature or by weighmaster’s certificate as appropriate and Seller’s quantity determination will govern. Buyer will promptly unload each
shipment at its own risk and expense, including any demurrage or detention charges. 
  
 6.1. SUPPLIER MANAGED INVENTORY AGREEMENT FOR ISOPRENE, hereinafter referred to as “Consigned Product”. 
  
 A. SHIPMENTS - TITLE. Notwithstanding any provisions of this Contract to the contrary, shipments of Consigned Product will be made
by Seller on consignment into Buyer’s storage at its facilities at Belpre, Ohio and Seller’s quantity determination will govern unless proven in error. Should the quantity determination by Buyer after receipt differ by an amount greater
than one-half of one percent (0.5%) versus the quantity indicated on Seller’s bill of lading, it is Buyer’s responsibility to petition Seller for adjustment in writing within thirty (30) days of receipt. Buyer will ensure the prompt
unloading of each shipment of Consigned Product and will be responsible for any demurrage or detention charges. Seller will retain title to all Consigned Product until any of the following occurs, at which time Buyer will be deemed to have purchased
the Consigned Product involved: 
  

	 	1.	Buyer withdraws it from storage; 

  










	 	2.	the Consigned Product is lost, destroyed or damaged for any cause while in Buyer’s custody, regardless of fault, effective the date of such loss, destruction or damage; or


  

	 	3.	a period of 120 consecutive days elapses during which no withdrawals of Consigned Product are made by Buyer (in which case all remaining Consigned Product in storage at Buyer’s
location will be deemed purchased by Buyer). 

  

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 B. STORAGE REQUIREMENTS. Buyer agrees to permit physical inspection of the storage location and product handling facilities by
Seller’s representative or agents prior to the first consignment shipment. 
  
 C. FINANCING STATEMENT. Upon request by Seller, Buyer will execute and return to Seller for Seller’s filing, a Uniform
Commercial Code Financing Statement - Form UCC-1, for all Consigned Product delivered hereunder. 
  
 D. REPORTS. On the first work day of each calendar month, Seller will ascertain withdrawals of all Consigned Product during the
previous month via the Lotus Notes tool, SIMON. Buyer will pay for the amount of Consigned Product used or otherwise deemed purchased during the past calendar month as found on the “Reconciliation” screen and in the cumulative
“Calculated” column for the past calendar month. 
  
 Buyer is responsible for keeping SIMON accurate by recording complete information as to all receipts, withdrawals and handling of Consigned Product. Buyer will provide a physical inventory quantity on a monthly basis
and record in SIMON. Since SIMON data will also serve as the basis for invoice quantities (i.e., the quantity that the Buyer is obligated to pay upon), Seller will maintain the responsibility of verifying the inventory activity and will notify Buyer
of exceptions or rejection of data reported on the “Reconciliation” screen no later than the following working day, following the Month End Accounting Closing Date, defined as the last day of each calendar month. Upon prior reasonable
notice, Seller will have the right to verify SIMON data at any time during Buyer’s normal business hours by physical inspection of Buyer’s Consigned Product inventory or to require any or all of Buyer’s monthly reports to be certified
by a responsible officer of Buyer. 
  










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 F. WEBSITE ACCESS AND USE. Seller shall maintain a website (the “Website”) which will provide Buyer access to the
Internet Lotus Notes website tool SIMON. Seller hereby grants to Buyer a nonexclusive, nontransferable, and revocable license to use SIMON at the Website for Buyer’s own internal use. Buyer may make reports, data, and print any output of SIMON.
Any other rights not expressly granted to Buyer are reserved to Seller. 
  
 Access to the Website and use of the Software requires concomitant use of an Internet browser commercially available by third parties and access to the Internet. Buyer shall bear all responsibility for obtaining the
necessary rights for use and installation thereof. 
  
 SELLER
REPRESENTS AND WARRANTS ONLY THAT IT HAS THE RIGHT TO MAKE THE GRANTS SET FORTH ABOVE BUT MAKES NO REPRESENTATIONS, EXTENDS NO WARRANTIES. EITHER EXPRESS OR IMPLIED, AND ASSUMES NO RESPONSIBILITIES WHATSOEVER WITH RESPECT TO THE PERFORMANCE,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE WEBSITE OR SOFTWARE OR ANY INFORMATION CONTAINED THEREIN. THE SOFTWARE AND ANY ASSOCIATED SERVICES (e.g., INSTALLATION AND UPGRADING OF THE SOFTWARE) ARE PROVIDED TO BUYER HEREUNDER ON AN
“AS IS” BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY CONCERNING THE RESULTS OR EFFECTS OBTAINED THROUGH THE USE OF THE SOFTWARE OR THAT IT WAS FIT FOR ANY USE INTENDED, OR CAN BE USED WITHOUT
INFRINGING THE PATENT RIGHTS, COPYRIGHTS, OR OTHER INTELLECTUAL PROPERTY OF THIRD PARTIES. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES RESULTING IN ANY WAY FROM ANY USE OF THE WEBSITE OR THE
SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOSS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON BUYER’S INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 

 
 Seller shall not be responsible for, and shall have no obligation to
Buyer with respect to, any claim by any other person arising, from, or attributable to, Buyer’s use of the Website or SIMON. 
  









 Seller’s cumulative liability to Buyer for any claims arising from, or in any way related to, this
Agreement, the Website or date contained thereon, or Simon or data contained therein, whether based on contract, tort, warranty, strict liability or other form of action, shall not exceed the total amount of any license fee(s) paid by Buyer to
Seller hereunder. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. Seller shall have no liability for loss of data or documentation, it
being understood that Buyer is responsible for reasonable backup precautions. 
  
 Shipments of Product hereunder will be in accordance with schedules mutually agreeable to both Parties with all reasonable efforts made to ship and receive Product at as even a rate over each year as practicable.

  
 7. WARRANTIES. Seller warrants that each Product will meet
specifications designated as such in this Contract or in Shell’s applicable publications. Shell warrants that it will comply with all applicable laws and governmental rules, regulations and orders. SHELL MAKES NO OTHER WARRANTIES, WHETHER OF
MERCHANTABILITY, FITNESS OR OTHERWISE, AND NONE WILL BE IMPLIED. 
  
 8. EXCUSES
FOR NONPERFORMANCE. Either Seller or Buyer will be excused from the obligations of this Contract to the extent that performance is delayed or prevented by any circumstance (except financial) reasonably beyond its control or by fire, explosion,
mechanical breakdown, strikes or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Product or compliance with any law, regulation, order, recommendation or request of any governmental
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 9. SAFETY AND HEALTH
COMMUNICATIONS. Seller will furnish to Buyer Material Safety Data Sheets which include health, safety and other hazard communication information on Product consistent with the Occupational Safety and Health Administration’s Hazard
Communications Standard. Seller will also furnish other health or safety information as available. Buyer will disseminate appropriate health and safety information to all persons Buyer foresees may be exposed to Product (including but not limited to
Buyer’s employees, contractors and customers). If Product is further processed, mixed or incorporated into another product, Buyer will likewise disseminate appropriate health and safety information to all persons Buyer foresees may be exposed.

  
 10. LIABILITIES - CLAIMS - INDEMNIFICATION. Buyer will indemnify Shell
against any liability (whether strict or otherwise) for any claim, loss or expense on account of any injury, disease or death of persons (including Buyer’s employees) or damage to property (including Buyer’s) arising out of: 
  









 A. Buyer’s unloading, storage, handling, sale of use or the Product (except to the extent caused by
Seller’s negligence); and/or 
  
 B. Any failure by Buyer to
disseminate safety and health information as provided in Article 9, SAFETY AND HEALTH COMMUNICATIONS; 
  
 and these indemnity obligations of Buyer will survive termination of this Contract. Shell or Buyer will not have any liability to the others for any claim (except for indebtedness of Buyer to Seller, or Buyer’s
failure to perform its purchase obligations hereunder) arising out of or in connection with this Contract unless claimant gives the other Party notice of the claim, setting forth fully the facts on which it is based, within ninety (90) days of the
date such facts were discovered or reasonably should have been discovered. Shell’s liability for defective or nonconforming Product, whether or not based on negligence, will not exceed the purchase price of the Product involved in the claim.
Seller will indemnify Buyer for any claim, loss or other expense to the extent of Seller’s negligence in the handling or manufacture of the product, except to the extent caused by Buyer’s negligence. NO PARTY WILL BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. 
  
 11. REMEDIES.
If Buyer fails to pay any indebtedness to Seller in accordance with the terms for such indebtedness (whether or not under this Contract), Seller may, in addition to any other remedies, suspend shipments, change terms of payment or terminate this
Contract by notice to Buyer. Buyer’s obligation to perform will not be limited by any previous waiver by Seller. In the event that Buyer breaches any term or condition of this Contract, Buyer will reimburse Shell for all costs and expenses
related to Shell’s pursuit of payment for any claim in any way arising from such breach, including but not limited to reasonable attorneys’ fees. 
  
 12. NOTICES. Notice by either Shell or Buyer will be made only by facsimile or similar electronic transmission, effective at the time sent to the number set out in
Article I, PARTIES, with confirmation, or by letter or telegram addressed to the other Party at its address in Article I and will be considered given as of the time it is sent by facsimile transmission or deposited with the U.S. Postal Service or
the telegraph company, postage or charges prepaid. 
  
 13. GOVERNING LAW.
THIS CONTRACT WILL BE INTERPRETED AND THE RIGHTS, OBLIGATIONS AND LIABILITIES OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 
  
 14. ASSIGNABILITY. The Buyer shall be entitled to assign this Agreement to any Affiliate that acquires all or substantially all of
its property, without the prior written consent thereto of the Seller. Any assignment of the Agreement by the Buyer to a third party will require the consent of the Seller, such consent not to be unreasonably withheld or delayed. 
  
 Seller shall be entitled to assign this Agreement to any Affiliate or third party without the
prior written consent thereto of the Buyer. 
  
 “Affiliate” means in relation to Shell, N.V. Koninklijke Nederlandsche Petroleum Maatschappij, The “Shell” Transport and Trading Company, p.l.c. (together the “Parent Companies”) or any entity other than the
Parties which is directly or indirectly affiliated with either or both of the Parent Companies. In relation to the Buyer, “Affiliate” means any entity which is directly or indirectly affiliated with Buyer. In relation to any third party
successors of the Parties, “Affiliate” means any entity which is directly or indirectly affiliated with that Third Party successor. 
  









 For the purposes of this definition, a particular entity is: 
  

	 	(i)	directly affiliated will another entity or entities if the latter hold(s) or otherwise control(s) by proxy or agreements shares or other ownership interests carrying fifty percent
(50%) or more of the votes exercisable at a general shareholders meeting (or its equivalent) of the entity in question; and 

  

	 	(ii)	indirectly affiliated with an entity or entities (the “parent or parents”) if a series of entities can be specified, beginning with their parent or parents and ending with
the particular entity, so related that each entity or entities in the series, except the parent or parents, is directly affiliated with one or more of the entities earlier in the series; 

  
 ENTIRETY AND RELEASE 
  
 This Contract, as of the beginning date of its Period, contains the complete and exclusive agreement of Shell and Buyer
concerning the Product identified in Article 2, PRODUCT, merges and supersedes all prior understandings and representations (oral or written) and terminates all prior contracts between Shell and Buyer concerning the same product. Except for any
indebtedness or indemnity obligation of Buyer to Shell, each Party releases the other from all claims arising in connection with any such prior contract. Neither this Contract nor any agreement supplementing or amending this Contract (including any
purchase order or other document issued by Buyer) will be binding unless signed by the Parties, and performance prior to such execution will not constitute a waiver of this requirement. 
  
 EFFECTIVE ONLY if signed by Buyer and returned within thirty (30) days of the contract date, and then signed by Seller. Any
shipment of Product made during the period of this Contract, but prior to execution, will be deemed to have been made under the terms hereof. 
  

									
	SHELL ELASTOMERS LLC	 	 	 	SHELL CHEMICAL COMPANY
					
	By	 	/s/ Illegible	 	 	 	By	 	/s/ Illegible
					
	 Date
	 	Illegible	 	 	 	 Date
	 	4/13/00

  









 Exhibit A 
  

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 Exhibit B 
  

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