ex_1049.htm

Exhibit 10.49


    ANHYDROUS

    AMMONIA
SALES AGREEMENT

    


    


    THIS
ANHYDROUS AMMONIA SALES AGREEMENT (this "Agreement") is entered into on this
   3rd   
day of December, 2008, and made effective January 1, 2009 (the
"Effective Date"), between KOCH NITROGEN INTERNATIONAL SÀRL, a Switzerland
corporation, with a branch office located at Grand Cayman, Cayman Islands,
B.W.I. (hereinafter "Seller") and EL DORADO CHEMICAL COMPANY, an Oklahoma
corporation, with principal offices at 16 S. Pennsylvania, Oklahoma City,
Oklahoma 73107 (hereinafter "Buyer"). Seller and Buyer are sometimes
collectively referred to herein as the "Parties" and individually referred to
herein as a "Party".

     

    WITNESSETH:

     

    WHEREAS,
as specified in this Agreement, Buyer and Seller desire to enter into an
anhydrous ammonia sales agreement under which Seller agrees to supply to Buyer,
and Buyer agrees to purchase from Seller, 100% of its Product Requirements (as
defined below) and

    WHEREAS,
Seller's intent is to supply Buyer's Product Requirements primarily by pipeline
deliveries and supply Buyer's Railcar Product Requirements (as defined below)
either by railcar or pipeline.

     

    NOW
THEREFORE, in consideration of the mutual promises herein contained, the receipt
and sufficiency of which is hereby acknowledged, the Parties agree as
follows:

     

    I.           DEFINITIONS

     

    Whenever
used in this Agreement, the following terms shall have the following respective
meanings:

     

    
      	
              A.

            	
              "Adder"
      shall have the same meaning assigned to that term in Article VI, Section
      B.

            


    

     

    
      	
              B.

            	
              "Affiliate"
      means, with respect to any Person, any other Person directly or indirectly
      controlling or controlled by, or under direct or indirect common control
      with such Person. 

            


    

     

    

      
        
          PORTIONS
OF THIS DOCUMENT HAVE BEEN OMITTED FROM THIS PUBLIC FILING PURSUANT TO A REQUEST
BY THE COMPANY FOR CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE
COMMISSION.  THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH
THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST.

        

        
          1 


          
            

          

        

        
           


        

      



    
      	
               

            	
              For purposes of this
      definition, the term "control" (including the correlative terms
      "controlled by" and "under the common control of"), as used with respect
      to any Person, means the possession, directly or indirectly, of the power
      to direct or cause the direction of the management and policies of such
      Person, through the ownership of voting securities, by contract or
      otherwise.

            


    

     

    
      	
              C.

            	
              "Ammonia
      Pipeline" shall mean the anhydrous ammonia pipeline currently owned by
      NuStar Pipeline Operating Partnership,
L.P.

            


    

     

    
      	
              D.

            	
              "Ammonia
      Pipeline Tariff" means the Ammonia Pipeline's current tariff for
      interstate movement of anhydrous ammonia, as amended from time to
      time.

            


    

     

    
      	
              E.

            	
              "Ammonia
      Pipeline Transportation Charge" shall have the same meaning assigned to
      that term in Article VI, Section C.

            


    

     

    
      	
              F.

            	
              "Buyer
      Facility" shall mean Buyer's chemical production facility located at El
      Dorado, Arkansas, as presently
configured.

            


    

     

    
      	
              G.

            	
              "
      *****" shall mean
      the                               *****                       per
      metric ton of the weekly price range published under the heading "Ammonia
      Price Indications, Delivered prices, US Gulf/Tampa, - Tampa" in Fertecon Ammonia Report
      ("Fertecon") and (ii) the
      *****      per metric ton of the weekly
      price range published under the heading "Ammonia c+f Tampa" in the FMB Weekly Fertilizer Report
      ("FMB") for the week Product is delivered by pipeline to Buyer or
      shipped by railcar to Buyer. For example, if Product is delivered to Buyer
      by the Ammonia Pipeline during the week from Monday, December 15, 2003
      through Sunday, December 21, 2003,
      the   *****   published in the December 18,
      2003 issue of Fertecon
      and the December 18, 2003 issue of FMB shall apply. The
      Parties acknowledge that currently, both Fertecon and FMB publish a price
      range for Tampa/US Gulf prices and a Tampa only price. The Tampa only
      price, as set forth above, shall be used to calculate
      the             *****            .
      If either publication or the price contained in such publication that is
      necessary to calculate
      the          *****            is
      not published far a particular week for any reason, then the publication
      or price, 

            


    

     

    

      
        
          *****  INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN
OMITTED FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.  THE
OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST.

        

        
          2 


          
            

          

        

        
           


        

      


       

    

    
      	
               

            	
              as applicable, from
      the previous week shall be used to calculate the *****. Examples of how
      ***** is calculated are set forth on Exhibit
1.

            


    

     

    
      	
              H.

            	
              "Delivery
      Point" shall mean: (i) for pipeline deliveries, the discharge side of the
      Ammonia Pipeline's Product meter located at Buyer's Facility, or (ii) for
      rail or truck deliveries, the point at Buyer's Facility where the truck or
      rail cars enter Buyer's Facility, or (iii) an alternate delivery point
      along the Ammonia Pipeline; provided that Buyer gives Seller at least
      forty-five (45) days written notice prior to the date it wishes to begin
      delivery at such alternate delivery
point.

            


    

     

    
      	
              I.

            	
              "KNC
      Facility" shall mean any of the anhydrous ammonia production facilities
      owned by Seller’s affiliate, Koch Nitrogen
  Company.

            


    

     

    
      	
              J.

            	
              "KNC
      Terminal" shall mean Koch Nitrogen Company’s anhydrous ammonia terminal at
      Taft, Louisiana, capable of receiving ammonia by vessels, loading and
      shipping ammonia in a barge, and re-injecting ammonia into the Ammonia
      Pipeline.

            


    

     

    
      	
              K.

            	
              "Month"
      shall mean a calendar month.

            


    

     

    
      	
              L.

            	
              "Performance
      Assurance" means collateral in the form of either cash, letter(s) of
      credit, or other security acceptable to Seller in its sole
      discretion.

            


    

     

    
      	
              M.

            	
              "Person"
      means any individual, corporation (including any non-profit corporation),
      general or limited partnership, limited liability company, joint venture,
      estate, trust, unincorporated organization, business, syndicate, sole
      proprietorship, association, organization, other entity or governmental
      body.

            


    

     

    
      	
              N.

            	
              "Price"
      shall be described in Article VI, Section A
  hereof.

            


    

     

    
      	
              O.

            	
              "Product"
      shall mean commercial anhydrous ammonia provided hereunder having the
      following specifications:

            


    

     

    Ammonia
(NH3)
Content:                     
99.5% minimum, by weight %

     

    Water:                                                      0.2%
minimum to 0.5% maximum, by weight %

     


    
      
        *****  INDICATES INFORMATION
IN THIS DOCUMENT WHICH HAS BEEN OMITTED FROM THIS PUBLIC FILING PURSUANT TO A
REQUEST BY THE COMPANY FOR CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE
COMMISSION.  THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH
THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST.

      

      
        3 


        
          

        

      

      
         


      

    

     

    Oil:                                                          
5 ppm maximum, by weight

     

    
      	
              P.

            	
              "Product
      Requirements" shall mean total Product purchased by Buyer for Buyer's
      account for further processing at Buyer's Facility, as adjusted to
      accommodate Buyer's Railcar Product Requirements. Currently, the Product
      Requirements during a calendar year at Buyer's Facility are approximately
      165,000 to 175,000 short tons, which includes approximately 45,000 short
      tons currently used by Buyer to manufacture finished product on behalf of
      Orica USA Inc., but is exclusive of any tolling arrangements by Buyer with
      third parties. Product Requirements shall not include approximately 45,000
      additional short tons of anhydrous ammonia annually, for production of
      finished product for Orica USA Inc. The 45,000 additional short tons
      referenced above shall be excluded from the Product Requirements during
      the Term of this Agreement, unless Buyer requests and Seller elects, at
      Seller's sole option, to include such quantity in the Product
      Requirements. Provided that Buyer has given Seller at least sixty (60)
      days prior written notice, Product Requirements shall not include Product
      supplied to Buyer's Facility which shall be produced by Buyer or an
      Affiliate of Buyer and physically delivered to Buyer's
      Facility.

            


    

     

    
      	
              Q.

            	
              "Seller"
      shall mean Seller.

            


    

     

    
      	
              R.

            	
              "short
      ton" shall mean 2,000 pounds.

            


    

     

    
      	
              S.

            	
              "Taxes"
      shall have the same meaning assigned to that term in Article IX
      hereof.

            


    

     

    
      	
              T.

            	
              "Total
      Credit Exposure" shall mean the sum of the (i) outstanding invoice(s) for
      Product delivered from Seller to Buyer, (ii) the estimated invoice for
      Product delivered to Buyer but not yet invoiced by Seller, and (iii) the
      estimated invoice amount for Product that shall be delivered from Seller
      to Buyer until the payment due date of the oldest outstanding invoice,
      less the amount of any Performance
Assurance.

            


    

     

    II.           TERM

     

    
      	
              A.

            	
              Term. The term
      of this Agreement (the "Term") shall commence at 12:01 a.m. central time
      on January 1, 2009 and shall terminate at 11:59 p.m. on December 31,
      2010,

            


    

     


    
      
         


      

      
        4 


        
          

        

      

      
         


      

    

     

    
       

      
        	
                 

              	
                
                  ("OriginalTermination
      Date") unless otherwise terminated earlier in accordance with this
      Agreement or extended pursuant to Section B
  below.

                

              


      

       

    

    
      	
              B.

            	
              Renewal. At the
      Original Termination Date, this Agreement may be extended for a one (1)
      year period (commencing on January 1st
      and ending on December 31st)
      upon the written agreement of both Seller and Buyer made no later than
      November 1st
      of the then current year. Notwithstanding the foregoing, neither Party
      shall be obligated to renew this
Agreement.

            


    

     

    III.           QUANTITY

     

    
      	
              A.

            	
              Quantity.
      During the Term, Buyer shall purchase from Seller one hundred percent
      (100%) of its Product Requirements for Buyer's Facility. However, in the
      event Buyer installs railcar unloading capabilities at Buyer's Facility,
      then Buyer shall have the option to purchase up to twelve percent (12%) of
      Buyer's Product Requirements during a calendar year from a third party
      ("Railcar Product Requirements"); provided, such Railcar Product
      Requirements must be delivered to Buyer's Facility by railcar; and
      provided further, Buyer gives Seller the right of first refusal to match
      any bona fide third party railcar delivered price. Buyer shall provide
      Seller with a written copy of such third party offer. In the event Seller
      determines to meet the price for any Railcar Product Requirements to
      Buyer's Facility within two (2) business days after its receipt of a
      written copy of the third party offer, Seller shall have the option to
      deliver the Railcar Product Requirements to Buyer's Facility either by
      railcar or pipeline. In addition, if Buyer installs railcar unloading
      capabilities at Buyer's Facility, then Seller may request, from time to
      time, that Buyer take delivery of a specified quantity of Buyer's Product
      Requirements by railcar, instead of delivery by pipeline, during each
      calendar year; provided Seller gives Buyer thirty (30) days written notice
      that Seller wants to deliver Product by railcar. Buyer shall make
      reasonable commercial efforts to accommodate Seller's request as stated
      above; however, it shall be Buyer's option to grant such
      request.

            


    

     

    
      	
              B.

            	
              No Resale.
      Buyer shall use the Product delivered to Buyer for processing at Buyer's
      Facility only, and shall not resell, transfer, exchange, or otherwise
      assign Product without

            


    

     

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    
       

      
        	
                 

              	
                first
      obtaining the prior written consent of Seller, which consent may be
      granted or withheld by Seller in its sole
  discretion.

              


      

       

    

     

    
      	
              C.

            	
              Measurement.
      The quantity of Product delivered hereunder to Buyer by the Ammonia
      Pipeline shall be governed by the weights and measures taken by meters
      owned by the Ammonia Pipeline at the Delivery Point pursuant to the
      Ammonia Pipeline Tariff. For truck or rail deliveries, the quantity of
      Product delivered to Buyer shall be governed by the weights and measures
      taken as the trucks or rail cars are loaded at the KNC Facility, KNC
      Terminal, alternative Seller supply sources, or at an alternative third
      party supply source and as stated on the bill of lading. The foregoing
      measurements of said quantities shall be final and conclusive, unless
      proven to be in error.

            


    

     

    IV.           QUALITY

     

    
      	
               

            	
              All
      Product delivered hereunder shall conform to the specifications set forth
      in Article I, Section O. All claims by Buyer that any Product delivered
      hereunder does not conform to the specifications set forth in Article I,
      Section O, shall be made in writing and sent within thirty (30) days after
      Seller's delivery of such Product to the Delivery Point. Failure to give
      written notice of such claim within the specified time shall constitute an
      unqualified acceptance of the Product and a waiver by Buyer of all claims
      with respect thereto.

            


    

     


    
      
         


      

      
        6 


        
          

        

      

      
         


      

    

    


    V.     WARRANTIES

     

    
      	
              A.

            	
              As
      its exclusive warranties, Seller warrants to Buyer that, at the Delivery
      Point: (i) the Product shall conform to the specifications specifically
      set forth in Article I, Section O and (ii) title to the Product shall be
      free from any security interest, lien, or encumbrance. EXCEPT AS
      SPECIFICALLY SET FORTH IN THE PRECEDING SENTENCE, (I) BUYER ACKNOWLEDGES
      AND AGREES THAT KOCH NITROGEN, AND ITS RESPECTIVE AFFILIATES HAVE NOT
      MADE, DO NOT MAKE, AND EXPRESSLY DISCLAIM ANY WARRANTIES, REPRESENTATIONS,
      COVENANTS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING BY
      OPERATION OF LAW OR OTHERWISE, AS TO THE MERCHANTABILITY, QUANTITY,
      CONDITION, OR QUALITY OF THE PRODUCT OR ITS SUITABILITY OR FITNESS FOR ANY
      PARTICULAR PURPOSE OR USE AND (II) THE PRODUCT IS SOLD "AS
      IS".

            


    

     

    
      	
              B.

            	
              Seller's
      liability, and Buyer's exclusive remedy, for any cause of action arising
      out of or related to the breach of the warranty above, is, at Buyer's
      option, limited to (i) replacement of the non-conforming Product at the
      Delivery Point or (ii) a refund to Buyer of the portion of the Price
      allocable to such non conforming Product. IN NO EVENT WILL SELLER'S
      CUMULATIVE LIABILITY UNDER THE AGREEMENT EXCEED THE TOTAL SALES PRICE OF
      THE PRODUCT OR THE COST OF SUBSTITUTE PRODUCT, WHETHER ARISING UNDER
      WARRANTY, GUARANTEE, CONTRACT, NEGLIGENCE, STRICT LIABILITY,
      INDEMNIFICATION, FAILURE OF ESSENTIAL PURPOSE OR ANY OTHER CAUSE OR
      COMBINATION OF CAUSES WHATSOEVER. WITHOUT LIMITATION ON THE FOREGOING,
      UNDER NO CIRCUMSTANCES SHALL EITHER KOCH NITROGEN OR BUYER BE LIABLE OR
      HAVE ANY RESPONSIBILITY TO THE OTHER OR ANY OTHER THIRD PARTY FOR ANY
      INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES,
      INCLUDING, WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS, OR BUSINESS
      INTERRUPTION.

            


    

     


    
      
         


      

      
        7 


        
          

        

      

      
         


      

    


    VI.     PRICE

     

    
      	
              A.

            	
              Price. Except
      as set forth below, for each short ton of Product sold to Buyer hereunder,
      Seller shall charge, and Buyer shall pay to Seller, the following
      Price:

            


    

     

    
      	
               
      

            	
              Price
      per short ton = *****.

            


    

     

    
      	
               

            	
              However,
      in the event Seller agrees to sell any of Buyer's Railcar Product
      Requirements as set forth in Article III, Section A, then the Price- for
      each short ton of Product sold to Buyer as Railcar Product Requirements
      shall be as determined in accordance with Article III, Section A and
      documented in writing between the Parties. The Price shall be determined
      on
a  *****  basis.

            


    

     

    
      	
              B.

            	
              Adder. Adder
      shall equal   *****     per short
      ton.  However, if the Ammonia Pipeline Transportation Charge is
      modified as set forth in Section VI C. of this Agreement, the Parties
      agree to modify the Adder as set forth in Section VI
  C.

            


    

     

    
      	
              C.

            	
              Ammonia Pipeline
      Transportation Charge. The Ammonia Pipeline Transportation Charge
      per short ton shall be a flat rate of ***** per short ton from Taft,
      Louisiana or Sterlington, Louisiana to the Delivery Point for pipeline
      deliveries.  In the event
      the   ****            is
      increased
      above                              *****                        ,
      then the Ammonia Pipeline Transportation Charge for both injection points
      shall be changed to the revised Ammonia Pipeline Tariff rate as published
      for       *****     .  Notwithstanding
      the foregoing, starting January 1, 2009, for the first increase of the
      Ammonia Pipeline Transportation Charge in each calendar year of the Term,
      Seller will, up to a maximum
      of          *****          per
      short ton, decrease the amount of the Adder per short ton by an amount
      equal to *****. For
      any other increases of the Ammonia Pipeline Charge in the same calendar
      year, the Adder shall not be
changed.

            


    

     

    

      
        
          *****  INDICATES INFORMATION
IN THIS DOCUMENT WHICH HAS BEEN OMITTED FROM THIS PUBLIC FILING PURSUANT TO A
REQUEST BY THE COMPANY FOR CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE
COMMISSION.  THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH
THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST.

        

        
          8 


          
            

          

        

        
           


        

      


       

    

    
      	
              D.

            	
              Market Publications
      and Prices. If either (a) Fertecon or FMB or (b) the price
      contained in such publication that is necessary to calculate
      the             *****              is
      not published for three (3) consecutive weeks, then Seller and Buyer shall
      meet in person, negotiate, and agree on a substitute publication or price,
      as applicable, within thirty (30) days of such event. During such thirty
      (30) day period, the publication or price that is published, as
      applicable, shall solely be used to calculate the Price hereunder. For
      example, if FMB
      was not published for three (3) consecutive weeks in March 2005,
      then Fertecon
      would solely be used to calculate the
  *****.

            


    

     

    
      	
              E.

            	
              Demurrage.
      Railcars shall be allowed ten (10) days of free time from the earlier of
      constructive or actual placement of the railcar at Buyer's Facility until
      being released by Buyer to the railroad. In the event Buyer is unable to
      obtain actual placement of railcars within a reasonable period of time
      after constructive placement due to issues beyond Buyer's control, then
      Seller shall adjust the free time allowed provided Buyer has notified
      Seller of this delay within three (3) business days of the delay. Any
      excess time shall be billed at $50.00 per car per
  day.

            


    

     

    
      VII.           CREDIT,
SECURITY AND PAYMENT TERMS

    

     

    
      	
              A.

            	
              If
      Seller provides Buyer a line of credit to facilitate purchases under this
      Agreement, such credit line may be amended, decreased or terminated at any
      time at the sole discretion of Koch by providing notice to
      Buyer.  Upon written notice of Seller’s election to decrease or
      terminate Buyer’s credit line, Buyer may terminate this
      Agreement.  Buyer’s failure to give written notice to Koch of
      the termination of this Agreement within thirty (30) days from the date of
      such notice shall constitute an unqualified acceptance of such reduction
      or termination and a waiver by Buyer of the right to terminate this
      Agreement  In addition to any other rights or remedies to which
      Seller may be entitled at law or in equity, in the event that Seller
      determines, in its sole discretion, that (a) the creditworthiness or
      future performance of Buyer is impaired or unsatisfactory, Seller may (i)
      immediately suspend deliveries of all Product; (ii) require prepayment by
      wire transfer at least two (2) business days prior to a scheduled shipment
      of Product; or (iii) require Performance Assurance at least three (3)
      business days prior to a scheduled shipment of
  Product.

            


    

     


    
      
        
           

          *****  INDICATES
INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED FROM THIS PUBLIC FILING
PURSUANT TO A REQUEST BY THE COMPANY FOR CONFIDENTIAL TREATMENT BY THE
SECURITIES AND EXCHANGE COMMISSION.  THE OMITTED INFORMATION HAS BEEN
FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION
FOR PURPOSES OF SUCH REQUEST. 

        

        9 


      

      
        
          

        

      

      
         


      

    


    
      	
              B.

            	
              Seller
      shall prepare and fax to Buyer a weekly invoice by Tuesday of every week
      during the Month in an amount equal to the Price per short ton based on
      the previous Friday's Price multiplied by the short tons delivered to
      Buyer during the period from the previous Monday through Sunday based on
      the meter reading at the Delivery Point provided by Buyer to Seller every
      Monday. In the event, Seller agrees to sell to Buyer any of Buyer's
      Railcar Product Requirements as set forth in Article III, Section A, then
      Seller shall prepare and fax to Buyer a weekly invoice by Tuesday of such
      week, in an amount equal to the Price per short ton as determined in
      accordance with Article VI, Section A multiplied by the short tons shipped
      by Seller to Buyer during the period from the previous Monday through
      Sunday based an the bill of lading quantity for such railcar shipments
      during the week. In the event Seller supplies to Buyer both Product
      Requirements and Railcar Product Requirements during any given week, then
      Seller shall prepare and fax Buyer two (2) separate invoices. Any Product
      returned to Seller in a railcar shall be deemed abandoned by Buyer and
      Buyer shall not receive any credit, payment, or other consideration for
      any abandoned Product, unless Buyer has provided written notification to
      Seller that Product in excess of three (3) short tons may remain in the
      railcar due to operational issues at Buyer's
  Facility.

            


    

     

    
      	
              C.

            	
              Twenty-one
      (21) days after the invoice date, Buyer shall pay the full amount of each
      invoice by wire transfer of immediately available funds to such account as
      Seller designates in writing. If the payment due date is a Saturday,
      Sunday, or holiday where banks are authorized to be closed, Buyer shall
      make such payment on the business day next succeeding such due date.
      Interest shall be charged on all past due amounts owed by Buyer hereunder
      at an interest rate equal to the lesser of 12% per annum and the maximum
      rate permitted by law, from the payment due date until paid in full (the
      "Default Rate"). Buyer agrees to accept as originals facsimile copies of
      invoices from Seller.

            


    

     

    
      	
              D.

            	
              For
      invoices prepared and faxed to Buyer by Seller, Buyer shall wire transfer
      funds to Seller’s designated bank account in London as designated on
      Seller’s invoice. The current wiring instructions for payment to Seller
      are as follows:

            


    

     

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    Koch
Nitrogen International Sàrl

    JP Morgan
Chase London

    Account
#25090201 USD

    SWIFT:
CHASGB2L

     

     

    VIII.                      DELIVERY

     

    
      	
              A.

            	
              Notices. No
      later than the 1st
      calendar day of the Month immediately prior to the Month of delivery of
      Product, Buyer shall notify Seller in writing of the amount of short tons
      and method of delivery that Buyer wishes to receive for such Month of
      delivery. Buyer shall promptly notify Seller in writing of any known or
      anticipated changes that will not permit Buyer to receive the monthly
      quantity of Product.

            


    

     

    
      	
              B.

            	
              Title and Risk of
      Loss. Seller shall deliver the Product hereunder to Buyer at the
      Delivery Point. Title and risk of loss of Product shall pass from Seller
      to Buyer and delivery shall occur when the Product passes the Delivery
      Point. Prior to delivery and transfer of title and risk of loss of the
      Product to Buyer, Seller agrees to be responsible for any damages or
      injury arising in connection with the Product. At and after delivery and
      transfer of title and risk of loss of the Product to Buyer, Buyer agrees
      to be responsible for any damages or injury arising in connection with the
      Product.

            


    

     

    
      	
              C.

            	
              Shipper of
      Record. Koch Nitrogen Company shall ship Product for Seller on the
      Ammonia Pipeline to Buyer at Buyer’s Facility and Koch Nitrogen Company
      will be the shipper of record.

            


    

     


    
      
         


      

      
        11 


        
          

        

      

      
         


      

    


    


    IX.           TAXES

     

    
      	
               

            	
              Buyer
      shall pay all material taxes, assessments, duties, fees, levies,
      penalties, licenses or charges imposed by any government authority
      ("Taxes") which may now or hereafter be imposed on or with respect to the
      Product at or after title and risk of loss passes to Buyer. If Seller is
      required to remit or pay Taxes that are Buyer's responsibility hereunder,
      Buyer shall reimburse Seller for such Taxes within ten (10) days of
      receipt of written notice hereunder. As the Buyer is assessed Taxes, both
      Parties agree to mutually work together to mitigate any
      assessment.

            


    

     

    X.           FORCE
MAJEURE

     

    
      	
              A.

            	
              Neither
      Seller nor Buyer shall be liable for any failure or delay in performance
      under this Agreement (except for the obligation to make money payments due
      hereunder for Product already purchased) due to a Force Majeure event. A
      "Force Majeure" event shall mean any event which may be due in whole or in
      part to any contingency, delay, failure, cause or other occurrence of any
      nature beyond a Party's reasonable control, which (i) physically prevents
      Seller from transporting or delivering the Product to or from the (a) KNC
      Terminal or (b) the Ammonia Pipeline, or (ii) which physically prevents
      Buyer from receiving or using Product at Buyer's Facility. Examples of
      Force Majeure events shall include, but not be limited to, the following:
      (a) physical events such as acts of God, disease, plague, landslides,
      lightning, earthquakes, fires, storms such as hurricanes or tornados, or
      explosions; (b) acts of others such as terrorist attacks, riots, sabotage,
      insurrections or wars; (c) breakage or accident to critical machinery or
      critical equipment; and (d) material allocation or material curtailment of
      natural gas or electricity, in either case under (c) or (d), rendering a
      Party incapable of satisfying its obligations under this Agreement (except
      for the obligation to make money payments due hereunder for Product
      already purchased) for more than fifteen (15) consecutive days or twenty
      (20) days in any thirty (30) day
period.

            


    

     

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    
      	
              B.

            	
              The
      term "Force Majeure" shall not include (i) an event caused by a Party's
      sole negligence or willful misconduct; (ii) Seller's ability to sell, or
      Buyer's ability to purchase from a third party, Product at a price more
      advantageous than the Price; (iii) Buyer's loss of markets for products
      produced at Buyer's Facility; (iv) shutdown of KNC's Terminal or Buyer's
      Facility for reasons other than a Force Majeure event; and (v) routine or
      scheduled maintenance at KNC's Terminal or Buyer's
    Facility.

            


    

    
      	
              C.

            	
              If
      a Force Majeure event occurs, the declaring Party may exercise its right
      under this Article X by giving timely notice thereof to the other Party
      setting forth with reasonable particularity the nature of the Force
      Majeure event. The declaring Party shall only be excused from performance
      hereunder during the duration of, and only to the extent of, the Force
      Majeure event. Under no circumstance shall (i) Seller be obligated to cure
      any deficiencies in deliveries of Product caused by Force Majeure or (ii)
      Buyer be obligated to cure any deficiencies in Product purchased caused by
      Force Majeure. Further, neither Seller nor Buyer (except as set forth in
      Article X, Section D below) shall be obligated to take any action which
      would result in increasing such Party's performance costs under this
      Agreement beyond the costs which it would have incurred in the absence of
      such Force Majeure event. The declaring Party shall give the other Party
      prompt notice of when the Force Majeure event
  ends.

            


    

    
      	
              D.

            	
              Notwithstanding
      any other provision of this Agreement, if the Ammonia Pipeline is
      interrupted or curtailed due to a Force Majeure event which prevents or
      delays Seller from making all or a portion of the required deliveries of
      Product hereunder, Seller shall use commercially reasonable efforts to
      arrange, at Buyer's cost and expense, rail or trucking transportation
      service from an alternative supply source to Buyer's Facility. Ammonia
      Pipeline allocation shall not constitute a Force Majeure event; provided,
      however, that a mechanical breakdown or any interruption of the Ammonia
      Pipeline may constitute a Force Majeure event. For the duration of the
      Force Majeure event, if (i) Seller's deliveries of Product to Buyer are
      impeded due to a Force Majeure event, or


            


    

    
 

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    
      	
               

            	
              (ii) the Ammonia
      Pipeline is allocated or curtailed, Seller shall have the right to
      apportion deliveries on a pro-rata basis (based up Seller's sales
      commitments or contracts) among Buyer, Seller's present and future
      customers (including regular customers not then under contract), and
      Seller or its Affiliates. Notwithstanding any other provision of this
      Agreement, Seller shall not be required to (a) cause ammonia production at
      the KNC Facility to resume or (b) to purchase Product from a third party,
      in either case, to remove a Force Majeure
event.

            


    

     

    XI.           DEFAULT
AND REMEDIES

     

    
      	
              A.

            	
              Defaults by
      Buyer. Upon the occurrence of any of the following events: (i)
      Seller shall not have received any payment due from Buyer hereunder by the
      date such payment is due under this Agreement, and such failure shall
      remain uncured for a period of two (2) business days after written notice
      thereof, (ii) the failure of Buyer to perform any other obligation in this
      Agreement and such failure is not excused or cured within five (5)
      business days after written notice thereof; (iii) the occurrence of a
      Bankruptcy Event with respect to Buyer or its Affiliates; or (iv) the
      failure by any Performance Assurance provider of Buyer to perform any
      obligation of such Performance Assurance provider under any document
      executed and delivered in connection herewith, and such failure shall
      remain uncured for a period of three (3) business days after written
      notice thereof; then Seller, in its sole discretion and without prior
      notice to Buyer, may do any one or more of the following: (a) suspend
      performance under the Agreement; (b) terminate the Agreement, whereby any
      and all obligations of Buyer, including payments due, will, at the option
      of Seller, become immediately due and payable; and/or (c) Set-off against
      any amount that Seller owes to Buyer under this Agreement. If Seller
      suspends performance and withholds delivery of the Product as permitted
      above, it may sell the Product to a third party and deduct from the
      proceeds of such sale the purchase price and all reasonable costs
      resulting from Buyer's default as identified above, including, without
      limitation, all costs associated with the transportation, storage, and
      sale of the Product. The foregoing rights, which shall include, but not be
      limited to, specific performance, 

            


    

     

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    
      	
               

            	
              shall be cumulative
      and alternative and in addition to any other rights or remedies to which
      Seller may be entitled at law or in equity. In addition, Seller shall be
      entitled to recover from Buyer all court costs, attorneys' fees and
      expenses incurred by Seller in connection with Buyer's default, and
      interest on past due amounts at the Default Rate. "Set-off" means set-off,
      offset, combination of accounts, netting of dollar amounts of monetary
      obligations, right of retention or withholding or similar right to which
      Seller is entitled (whether arising under this Agreement, applicable law,
      or in equity) that is exercised by Seller. "Bankruptcy Event" means the
      occurrence of any of the following events with respect to a Person: (i)
      filing of a petition or otherwise commencing, authorizing or acquiescing
      in the commencement of a proceeding or cause of action under any
      bankruptcy, insolvency, reorganization or similar law, or if any such
      petition is filed or commenced against it; (ii) making of an assignment or
      any general arrangement for the benefit of creditors; (iii) having a
      bankruptcy petition filed against it and such petition is not withdrawn or
      dismissed within sixty (60) days after such filing; (iv) otherwise
      becoming bankrupt or insolvent (however evidenced); (v) having a
      liquidator, administrator, custodian, receiver, trustee, conservator or
      similar official appointed with respect to it or any substantial portion
      of its property or assets; or (vi) being generally unable to pay its debts
      as they fall due.

            


    

     

    
      	
              B.

            	
              Defaults by
      Seller. Upon the occurrence of any of the following events: (i) the
      failure of Seller to perform any obligation in this Agreement and such
      failure is not excused or cured within ten (10) days after written notice
      thereof, provided, however, that Seller shall have an additional ten (10)
      day period (commencing immediately upon the expiration of the initial ten
      (10) day period) to cure such failure if Seller commences curative action
      within such ten (10) day period and proceeds diligently and in good faith
      thereafter to cure such failure until completion or (ii) a Bankruptcy
      Event with respect to Seller, then Buyer, in its sole discretion and
      without limitation, may terminate this Agreement, and Buyer's remedies
      shall be cumulative and alternative and in addition to any other rights or
      remedies to which Buyer may be entitled at law or in equity. Subject to
      Article V, Section C, if Buyer is the prevailing party in any action,
      litigation, or lawsuit against Seller for its default hereunder, Buyer
      shall be entitled to recover from Seller all court costs, attorneys' fees
      and expenses incurred by Buyer in connection with
  Seller's

            


    

     

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    
      	
               

            	
              default hereunder,
      and interest on past due amounts at the Default Rate. In addition to the
      foregoing, if. (i) Seller fails to perform a material obligation in this
      Agreement and (ii) Buyer notifies it in writing of such failure, then only
      while such failure remains uncured, Buyer may purchase Product from
      another Person and Buyer's Product Requirements shall be reduced by the
      amount of Product Buyer purchased from such other
  Person.

            


    

     

    XII.           RIGHTS
NOT WAIVED

     

    
      	
               

            	
              The
      waiver by either Party of any default of this Agreement by another Party
      shall not be deemed to be a waiver of any successive or other default of
      this Agreement. Each and every right, power and remedy may be excused from
      time to time and so often and in such order as may be deemed expedient by
      the Party, and the exercise of any such right, power or remedy shall not
      be deemed a waiver of the right to exercise at the same time or
      thereafter, any other right, power or
remedy.

            


    

     

    Xlll.           NOTICES

     

    
      	
               

            	
              Any
      notices, requests or other communications required or permitted by any
      provision of this Agreement shall be in writing and shall be deemed
      delivered if delivered by hand, facsimile, national overnight courier
      service, or mailed by U.S. Postal Service, postage prepaid, by registered
      or certified mail, as follows:

            


    

     

    If to
Seller:

     

    Koch
Nitrogen International Sàrl

    P.O. Box
31359 KY1-1206

    Grand
Cayman, Cayman Islands, B.W.I.

    Attention:
Walker Hess, Managing Director

    Fax:
(345) 946-9325

     

    
      
         


      

      
        16 


        
          

        

      

      
         


      

    


    With copy
to Koch Nitrogen Company:

     

    Koch
Nitrogen Company

    4111 East
37th Street North

    Wichita,
Kansas 67220

    Attention:  Dion
Mick

    Director
Industrial Ammonia Sales & Product Planning

    Fax:
(316) 828-4084

     

    If to
Buyer:

     

    El Dorado
Chemical Company

    16 S.
Pennsylvania

    Oklahoma
City, Oklahoma 73107

    Attention:
Tony M. Shelby

    Fax:
(405) 236-5067

     

    With copy
to:

     

    El Dorado
Chemical Company

    16 5.
Pennsylvania

    Oklahoma
City, Oklahoma 73107

    Attn:
David Shear, General Counsel

    Fax:
(405)236-1209

     

    Any Party
may change the address to which notices are given by mailing written notice
thereof to the other Party as provided above.

     

    XIV.            ASSIGNMENT

     

    
      	
               

            	
              No
      Party shall assign or delegate, or permit by assignment or delegation, by
      operation of law or otherwise, any of its rights and obligations under
      this Agreement to any Person without first obtaining the prior written
      consent of the other Parties, which consent shall not be unreasonably
      withheld, conditioned, delayed or denied. Notwithstanding the foregoing,
      each Party shall be allowed to assign this Agreement to an Affiliate upon
      providing written notice to the other Parties, provided no such transfer
      shall operate to relieve the transferring Party of its obligations
      hereunder. Any assignment or delegation, or attempted assignment or
      delegation, in violation of this Article XIV shall be null and void, shall
      be considered a material breach of this Agreement, and shall permit the
      other Parties, in addition to any other rights which it may hereunder or
      at law or in equity, to 

            


    

     

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    
      	
               

            	
              terminate
      this Agreement and exercise any remedies available to the non-breaching
      Party hereunder or at law or in
equity.

            


    

     

    XV.           ENTIRE
AGREEMENT; AMENDMENT

     

    
      	
               

            	
              This
      greement shall supersede all prior negotiations, discussions, and dealings
      concerning the subject matter hereof, and shall constitute the entire
      agreement between Seller and Buyer concerning the subject matter
      hereof. No Party shall claim any amendment, modification or release of any
      provisions hereof unless the same is in writing and such writing: (i)
      specifically refers to this Agreement; (ii) specifically identifies the
      term amended; and (iii) is signed by duly authorized representatives of
      Seller and Buyer.

            


    

     

    XVI          CONFIDENTIALITY

     

    
      	
               

            	
              Except
      (i) as may be agreed to in writing on a case by case basis, (ii) for
      communications between Buyer and Orica USA, Inc., (iii) as may be
      necessary to perform its obligations herein, or (iv) as required by law,
      both Parties shall maintain in confidence a!1 information concerning costs
      and price to be disclosed in connection with the other's performance under
      this Agreement. Such information shall be disclosed to no one other than
      officers and other employees who need to know the same in connection with
      performance under this Agreement, and such officers and other employees
      shall be advised of the confidential nature of such information, or when
      disclosure is required by law. The Parties shall take all proper
      precautions to prevent such information from being acquired by any
      unauthorized person or entity.

            


    

     

    XVII.        ARTICLE
AND SECTION HEADINGS

     

    
      	
               

            	
              Article
      and section headings are for the convenience of the Parties and are not
      considered parts of this Agreement, it being stipulated that any headings
      in conflict with the substantive provisions of this Agreement shall have
      no force and effect.

            


    

     

    XVIII.       GOVERNING
LAW; NO JURY TRIAL

     

    
      	
               

            	
              The
      Agreement and its execution, performance, interpretation, construction and
      enforcement shall be governed by the law, both procedural and substantive,
      of the State of 

            


    

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    
      	
               

            	
              
                Kansas,
      without regard to its conflicts of law rules. No course of dealing,
      course of performance, or usage of trade shall be considered in the
      interpretation or enforcement of this Agreement. Any action or proceeding
      between Seller and Buyer relating to this Agreement shall be commenced and
      maintained exclusively in the State of Kansas or in the Federal courts
      governing Kansas, and each Party submits itself unconditionally and
      irrevocably to the personal jurisdiction of such courts. EACH PARTY
      WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
      MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, CLAIM OR
      PROCEEDING RELATING TO THIS
AGREEMENT.

              

            


    

     

    XIX.          SEVERABILITY

     

    
      	
               

            	
              The
      provisions of this Agreement are severable and, if any provisions are
      determined to be void or unenforceable in whole or in part, the remaining
      provisions shall remain unaffected and shall be binding and enforceable in
      accordance with the terms hereof.

            


    

     

    XX.           MISCELLANEOUS

     

    
      	
              A. 

            	
              Additional Rules of Interpretation and
      Construction.

            


    

     

    
      	
              1. 

            	
                   
      No Construction Against Draftsman. No implications or inferences
      shall be drawn from the deletion of or addition to the terms of previous
      drafts of this Agreement. Seller and Buyer acknowledge that each has had
      the opportunity to participate in the preparation of this Agreement and,
      therefore, in the event of any ambiguity in, or controversy with respect
      to the meaning of, any term or provision contained in this Agreement, no
      presumption or inference shall be drawn against any Party in the
      interpretation of this Agreement by reason of the participation by such
      Party or its attorneys in the preparation of this
    Agreement.

            


    

     

    
      	
              2. 

            	
                   
      Gender. Words of any gender in this Agreement shall include
      the other gender, and words in the singular number shall include the
      plural, when the context requires.

            


    

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    
      	
              3. 

            	
                   
      Days. The term "days", as used herein, shall mean actual days
      occurring, including, Saturdays, Sundays and national holidays. The term
      "business days" shall mean days other than Saturdays, Sundays and national
      holidays.

            


    

     

    
      	
              4. 

            	
                   
      Counterparts. This Agreement may be executed in multiple
      counterparts, each of which shall be deemed an original, and all of which
      executed counterparts together shall constitute one
    agreement.

            


    

     

    
      	
              B.

            	
              Binding Effect. Without
      limitation of the foregoing, this Agreement shall inure to the benefit of
      and be binding upon Seller and Buyer, including their respective
      successors and assigns.

            


    

     

    
      	
              C.

            	
              Brokers. Any
      commissions, fees and expenses in connection with any broker or agent
      retained by Seller shall be the sole responsibility of Seller. Any
      commissions, fees and expenses in connection with any broker or agent
      retained by Buyer shall be the sole responsibility of
    Buyer.

            


    

     

    
      	
              D.

            	
              Independent
      Contractors. Seller and Buyer are independent contractors only
      and are not partners, master/servant, principaUagent or involved herein as
      parties to any other similar legal relationship with respect to the
      transactions contemplated under this Agreement or otherwise, and no
      fiduciary, trust, or advisor relationship, nor any other relationship
      imposing vicarious liability shall exist between the parties under this
      Agreement or otherwise at law.

            


    

     

    
      	
              E.

            	
              No Third Party Beneficiaries.
      This Agreement is solely for the benefit of, and shall inure to the
      benefit of, Buyer and Seller, and shall not otherwise be deemed to confer
      upon or give to any third party any right, claim, cause of action or other
      interest herein.

            


    

     

    
      	
              F.

            	
              Survival of Terms and Conditions.
      This Agreement, and all covenants, promises, agreements,
      conditions, warranties, representations and understandings contained
      herein, or contained in any modification, change or amendment of this
      Agreement pursuant to Article XV hereof, shall survive the termination or
      expiration of the term of this Agreement for purposes of enforcement of
      rights occurring prior to such termination or
  expiration.

            


    

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

    


     

    IN
WITNESS WHEREOF, the Parties have executed this Agreement to be effective on the
Effective Date by their respective officers thereunto duly
authorized.

     

    KOCH
NITROGEN INTERNATIONAL SÀRL

    


    By:  _____________________________     

    


    Title: ____________________________

    


    


    EL
DORADO CHEMICAL COMPANY

    


    By: /s/ Tony M. Shelby            

    


    Title: Vice President              

    


     

    
      
         


      

      
        21 


        
          

        

      

      
         


      

    


    EXHIBIT
1

     

    Examples
of how the ***** is calculated in Article I, Section G is as
follows:

     

    
      	
               

            	FMB
      Weekly Fertilizer Report


    

     

    
      	
               

            	 	
              Fertecon Ammonia
      Report 

            	
              FMB
      Weekly Fertilizer Report

            
	 	 	 	 	 	 
	 	 	 	 *****	 *****	 
	 	Publication
      Date	 *****	 *****	 *****	 
	 	December 4,
      2003	 ***** 	 *****	 *****	 *****
	 	December 11,
      2003	 ***** 	 *****  	 ***** 	 *****
	 	December 18,
      2003	 *****    	 ***** 	 *****	 *****
	 	December 25,
      2003	 ***** 	 	 *****	 
	 	 	 	 	 	 


    

     

    
      	 	 Delivery
      Dates 	 Publication Date Used  	*****
	 	 December 1 to
      7, 2003	 December 4,
      2003	*****
	 	 December 8 to
      14, 2003	 December 11,
      2003	*****
	 	 December 15 to
      21, 2003	 December 18,
      2003	*****
	 	 December 22 to
      28, 2003	 December 18,
      2003	*****


    

     

                                                                                                                                            

    All
prices in the above example are stated as a dollar ($) per metric ton
price.

     

     

    
      
        
          *****  INDICATES INFORMATION IN THIS DOCUMENT
WHICH HAS BEEN OMITTED FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE
COMPANY FOR CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE
COMMISSION.  THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH
THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST. 

          #193855