ex_1028.htm


    Exhibit
10.28

     

    FIRST
AMENDMENT TO AN SUPPLY AGREEMENT

     

    This First Amendment to AN
Supply Agreement (“First Amendment”) is entered into by and between Orica
International Pte Ltd. (“Orica”) and El Dorado Chemical Company (“EDC”), with an
effective date of March 1, 2010 (“Effective Date”) in reference to the
following:

     

    A.           Orica
and EDC entered into that certain AN Supply Agreement made effective as of
January 1, 2010 (the “Agreement”)”.  Capitalized terms that are not
otherwise defined herein shall have the meaning given such terms in the
Agreement.

     

    B.           The
parties desire to modify certain provisions of the Agreement.

     

    NOW, THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:

     

    1.           Preamble.   The
preamble is hereby incorporated herein by reference; provided that, in case of
any inconsistency between any part of the preamble and any part of the body of
the Agreement, then the body of the Agreement shall prevail.

     

    2.           Ammonia.  
Sections 3.1, 3.2, 3.3 and 3.4 of the Agreement shall be deleted in their
entirety and the following shall be substituted therefor:

     

    
      	
              “3.1

            	
              The
      current term of the Koch Ammonia Agreement expires on December 31, 2012.
      The Koch Ammonia Agreement contemplates that EDC will purchase
      approximately 60,000 Tons of Ammonia that will be used in the production
      of AN to be purchased by Orica under this Agreement. The cost to EDC of
      such Ammonia shall be included in the amounts owed by Orica to EDC under
      Section 14.2.1 (a) of this
Agreement.

            


    

     

    
      	
              3.1.1

            	
              Orica
      is not and shall not be deemed to be a party to the Koch Ammonia
      Agreement.

            


    

     

    
      	
              3.1.2

            	
              Orica
      acknowledges and agrees that, prior to December 31, 2012, Orica shall not
      be permitted to supply its own Ammonia in substitution for the 60,000 Tons
      of Ammonia to be supplied under the Koch Ammonia Agreement nor require EDC
      to supply the 58,000 Tons of Ammonia Orica will supply from another
      supplier, in either case without the consent of
  KNI.

            


    

     

    
      	
              3.1.3

            	
              EDC
      will provide to Orica material information in EDC’s possession regarding
      the operation of the Koch Ammonia Agreement and will provide copies to
      Orica of any material notices or other correspondence EDC receives from or
      issues to KNI in respect of the Koch Ammonia
  Agreement.

            


    

     

    
      	
              3.1.4

            	
              EDC
      shall consult with Orica prior to the exercise by EDC of any of the rights
      conferred upon it pursuant to Sections I.H, VI.D, VII.A, XI.B, XII and XIV
      of the Koch Ammonia Agreement.

            


    

     

    
      	
              3.1.5

            	
              EDC
      shall not, without obtaining Orica’s prior written approval, exercise any
      of the rights conferred upon it pursuant to Sections I.P, II.B, III.B
      (unless the resale, transfer, exchange or assignment does not affect
      Ammonia to be supplied to Orica), V.B, or XV (unless any such amendment
      has no effect on Orica) of the Koch Ammonia Agreement
  

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    relating to the 60,000 Tons
of Ammonia to be supplied by EDC to Orica prior to December 31,
2012.

     

    
      	
              3.1.6

            	
              EDC
      shall be solely responsible for any costs or expenses claimed against EDC
      by KNI pursuant to Article XI Section A of the Koch Ammonia Agreement,
      except to the extent that any such costs or expenses are directly
      attributable to any failure by Orica to timely make payment to EDC in
      accordance with Section 3.6 of this
Agreement.

            


    

     

    
      	
              3.1.7

            	
              Notwithstanding
      any other provision of this Agreement and unless otherwise agreed in
      writing, EDC shall not be obligated to supply Ammonia hereunder for the
      manufacture of AN for Orica (a) if EDC fails to provide Ammonia prior to
      December 31, 2012 but such failure is not caused by any default of EDC
      under the Koch Ammonia Agreement or (b) after December 31,
      2012.

            


    

     

    
      	
              3.2

            	
              Prior
      to December 31, 2012, Orica will supply 58,000 Tons of Ammonia to EDC from
      a supplier other than KNI and EDC agrees to accept deliveries of such
      Ammonia in the same manner as in Section 3.4 of this
      Agreement.  The cost to EDC of such Ammonia shall be included in
      the amounts owed by Orica to EDC under Section 14.2.1 (b) of this
      Agreement.

            


    

     

    
      	
              3.3

            	
              From
      and after January 1, 2013, to the extent Ammonia is available from EDC’s
      supplier or suppliers at costs acceptable to Orica (which shall not exceed
      EDC’s delivered to the EDC Site cost of Ammonia from EDC’s supplier), EDC
      shall acquire up to 60,000 Tons of Ammonia for use to manufacture AN for
      Orica under this Agreement for such periods as shall be requested by
      Orica. For the 60,000 Tons of Ammonia EDC is supplying, Orica shall give
      EDC at least 45 days’ advance notice of the quantities of Ammonia Orica
      requires EDC to acquire to be used by EDC for manufacturing AN for
      Orica.  The cost to EDC of such Ammonia shall be included in the
      amounts owed by Orica to EDC under Section 14.2.1 (a) of this
      Agreement.

            


    

     

    
      	
              3.4

            	
              From
      and after January 1, 2013, and subject to the terms and conditions hereof,
      Orica shall  supply to EDC, and EDC shall receive from Orica, up
      to 58,000 Tons of Ammonia from a supplier other than KNI at the times as
      required by EDC for conversion by EDC to meet Orica’s demand for AN
      hereunder.  EDC shall provide Orica with at least 30 days’
      advance notice of (a) the quantities of Ammonia it requires during the
      succeeding one-Month period to meet Orica’s demand for AN and (b) the
      required delivery dates of such Ammonia.  The parties shall
      cooperate in arranging such Ammonia deliveries.  Upon delivery
      Orica shall sell such Ammonia to EDC and EDC shall pay Orica for such
      Ammonia on or before the first day of the second Month succeeding the
      Month in which such Ammonia was delivered to EDC by Orica e.g. January
      Ammonia deliveries are paid for on March 1st. The
      cost to EDC of such Ammonia shall be included in the amounts owed by Orica
      to EDC under Section 14.2.1 (b) of this
  Agreement.”

            


    

     

    3.           Ammonia.     
Section 3.6 of the Agreement shall be deleted in its entirety and the following
shall be substituted therefor:


    
      
         


      

      
        2 


        
          

        

      

      
         


      

    

     

    
      	
              “3.6

            	
              If
      EDC is supplying Ammonia from its supplier, Orica shall reimburse EDC for
      its actual out of pocket delivered to the EDC Site cost of such Ammonia
      within the earlier of (a) eighteen (18) days from the Monday during the
      week KNI’s invoice is prepared under the Koch Ammonia Agreement and faxed
      to EDC, or (b) three (3) days before the date required by the payment
      terms in the Koch Ammonia Agreement. If the payment due date is not a
      Business Day, Orica shall make the payment on the next Business
      Day.”

            


    

     

    4.           United
Nations Convention.  A new Section 33.0 shall be added to the
Agreement as follows:

     

    
      	
              “33.0

            	
              UNITED
      NATIONS CONVENTION

            


    

     

    33.1           The
parties agree that the United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Agreement and is expressly
excluded.”

     

    5.           Koch
Ammonia Agreement.  In Schedule “A” to the Agreement, the
definition of Koch Ammonia Agreement shall be deleted and the following shall be
substituted therefore:

     

    ““Koch
Ammonia Agreement” means the Anhydrous Ammonia Sales Agreement between
Koch Nitrogen International SARL (“KNI”)
and EDC dated entered into on December 3, 2008 and made effective January 1,
2009, which was subsequently amended by (a) that certain First Amendment to
Anhydrous Ammonia Sales Agreement, dated June 25, 2009 and (b) that certain
Second Amendment to Anhydrous Ammonia Sales Agreement dated February __,
2010;”

     

    6.           No
Other Changes.     Except as provided in this First
Amendment, all other terms of the Agreement shall remain in full force and
effect.

     

    IN WITNESS WHEREOF, the
parties have executed this First Amendment effective as of the date first
written above.

     

    The Common Seal
of

    ORICA INTERNATIONAL PTE
LTD.

    was affixed in accordance
with its

    Articles of
Association

     

    By:
_______________________________________

    Name:
____________________________________

    Title:
_____________________________________

    Date of Signature:
___________________________

     

    EL DORADO CHEMICAL
COMPANY

     

    By:
_______________________________________

    Name:
____________________________________

    Title:
_____________________________________

    Date of Signature:
___________________________


    
      
         


      

      
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