exv10w20



 







    Exhibit 10.20



 



    *** indicates confidential portions have been




    redacted and submitted separately pursuant to




    confidentiality request with the Commission



 


 




    AGREEMENT
    FOR THE EXCLUSIVE SUPPLY OF STYRENE

    TEXAS CITY — TEXAS

    Dated September 17, 2007

    By and between

    STERLING CHEMICALS, INC.

    and

    NOVA CHEMICALS INC.



 












 










 



    This Agreement for the Exclusive Supply of Styrene dated
    September 17, 2007 is made and entered into between
    Sterling Chemicals, Inc., a Delaware corporation
    (“Producer”), and NOVA Chemicals Inc., a
    Delaware corporation (“Customer”).








 



    In consideration of the mutual undertakings herein contained,
    the Parties hereto agree as follows:



 


		
	
    1.  
	
    Definitions
    and Interpretation




 




    1.1  Definitions



 



    In this Agreement, except to the extent that the context
    requires otherwise:



 



    “AAA” means the American Arbitration
    Association.



 



    “AAA Rules” has the meaning set forth in
    Clause 21.2.1.



 



    “Acquisition Transaction” has the meaning set
    forth in Clause 19.1 (Styrene Monomer Business).








 



    “Affected Party” has the meaning set forth in
    Clause 8.1 (Event of Force Majeure).








 



    “Affiliate” means, in relation to any Person,
    any other Person that, directly or indirectly, controls, is
    controlled by or is under common control with such specified
    Person. Reference to “control” of a Person by
    another means that the other (whether alone or acting in concert
    with others, whether directly or indirectly and whether by the
    ownership of share capital, the possession of voting power,
    contract or otherwise) has the power to appoint
    and/or
    remove all or the majority of the members of the board of
    directors or other governing body of that Person or of any other
    person which controls that Person or otherwise controls or has
    the power to control the affairs and policies of that Person or
    of any other Person which controls that Person (and
    “controlled” and “controlling”
    shall be construed accordingly).



 



    “Agreement” means this Agreement for the
    Exclusive Supply of Styrene and its Schedules.



 



    “Applicable Law” means any applicable Law,
    permit, approval, concession, grant, franchise, license,
    agreement or requirement of any Governmental Entity having
    jurisdiction over the matter or matters in question, and in each
    case existing to the extent having force of law at the time in
    question.








 



    “Assigned Contracts” has the meaning set forth
    in Clause 17 (Other Matters).








 



    “Authorization” means an authorization,
    consent, approval, resolution, certificate, license, exemption,
    permit, filing or registration required under Applicable Law.



 



    “Business Day” means a day (other than a
    Saturday or Sunday) on which banks are open for general business
    in New York.



 



    “Claims” means any and all rights, claims,
    counterclaims, complaints, demands and causes of action of any
    nature or kind, whatsoever and howsoever arising, whether known
    or unknown, whether in law or in equity or pursuant to statute,
    and whether in any court of law or equity or before any
    arbitrator or other body, board or tribunal.



 



    “Confidential Information” means:



 



    (i) information regarding the terms and conditions of this
    Agreement; and








 



    (ii) all communications between the Parties or their
    respective Affiliates and all information and other material
    supplied to, or received by, either Party or its Affiliates from
    the other Party or its Affiliates in connection with this
    Agreement (or in connection with Product provided pursuant to
    this Agreement) which is either marked “confidential”
    or by its nature is intended to be for the knowledge of the
    recipient
    and/or any
    other Person within Clause 15.2 (Permitted
    Disclosure) alone.








 



    “Consequential Loss” means any indirect,
    consequential, incidental or special damage or loss, loss of
    production, loss of profit, loss of margin, loss of revenue,
    loss of contract, loss of goodwill, or punitive damages;
    provided, however, that in no event shall all or
    any portion of the non-refundable capacity reservation charge be
    deemed or considered a Consequential Loss.




    

    2








 






    “Contract” means all agreements, arrangements,
    contracts, purchase orders or other commitments in any way
    relating to the sale, distribution or marketing of styrene from
    the Texas City Styrene Plant, whether written or oral,
    including, without limitation, customer contracts, distributor
    contracts, sales orders and storage contracts.



 



    “Customer” has the meaning set forth in the
    preamble hereto.








 



    “Customer Indemnified Person” has the meaning
    set forth in Clause 13.1 (Indemnification of Customer).













 



    “Defaulting Party” has the meaning set forth in
    Clause 10.1 (Losses).








 



    “Default Rate” means, with respect to any day,
    the rate per annum which is the lesser of (i) two percent
    (2%) above the rate of interest in effect for such day as most
    recently publicly announced or established by The Chase
    Manhattan Bank (National Association) in New York, New York as
    its “prime rate” and (ii) the maximum
    non-usurious rate of interest which may charged under laws
    applicable to the party to whom such interest is payable.



 



    “Dispute” means any dispute or difference of
    whatsoever nature arising under, out of, in connection with or
    in relation (in any manner whatsoever) to this Agreement,
    including (i) any dispute or difference concerning the
    initial or continuing existence of this Agreement or any
    provision thereof or as to whether this Agreement or any
    provision thereof is invalid, illegal or unenforceable (whether
    initially or otherwise) or (ii) any dispute or claim which
    is ancillary or connected, in each case in any manner
    whatsoever, to the foregoing.








 



    “Dispute Notice” has the meaning set forth in
    Clause 21.1 (Amicable Settlement).













 



    “Effective Date” has the meaning set forth in
    Clause 11 (Conditions)













 



    “EFT” has the meaning set forth in
    Clause 7.1.1 (Invoicing).








 



    “Environmental Damages” means all demands,
    claims, suits, proceedings, actions, or causes of action,
    assessments, losses, damages (including but not limited to,
    personal injury, injury to property and natural resource
    damages) liabilities (including, without limitation, strict
    liability), judgments, remedies, settlement amounts,
    deficiencies, fines and penalties, costs and expenses, including
    interest, penalties and reasonable attorney, accountant,
    consultant, contractor, laboratory and expert fees,
    disbursements and expenses, oversight, response, investigative
    and remediation costs (and reimbursement to Governmental
    Entities for same), costs and expenses of investigation or
    defense of any claim, and any moneys paid in settlement thereof,
    past, present and future, relating to or arising from or in
    connection with (i) Environmental Laws applicable to,
    arising with respect to, or otherwise relating to, the Texas
    City Styrene Plant or any other adjacent or nearby property
    owned by Producer or any of Producer’s Affiliates;
    (ii) the presence or alleged presence on the Texas City
    Styrene Plant or any other adjacent or nearby property owned by
    Producer or any of Producer’s Affiliates, or the migration
    or alleged migration to or from any such properties, of
    Hazardous Materials, regardless of when such Hazardous Materials
    came to be located on such properties and regardless of who
    caused them to be present thereon; (iii) claims (including,
    without limitation, bodily injury and property damage claims)
    relating to toxic torts or exposure to Hazardous Materials
    except to the extent that such toxic tort or exposure pertains
    to any Product at any time after title or risk of loss to such
    Product has transferred to Customer; (iv) any and all
    violations or alleged violations of Environmental Laws, whether
    occurring before or after the Effective Date, except to the
    extent that such violation or alleged violation pertains to any
    Product at any time after title or risk of loss to such Product
    has transferred to Customer; and (v) liability to any third
    party or Governmental Entity to indemnify or provide
    contribution to such third party or Governmental Entity; except
    to the extent that such liability pertains to any Product at any
    time after title or risk of loss to such Product has transferred
    to Customer. For purposes of this definition of Environmental
    Damages only, the term “Product” means
    (a) Product and (b) styrene monomer that does not meet
    the specifications set forth in Schedule A attached
    hereto to the extent, but only to the extent, that such failure
    to meet the specifications set forth in Schedule A
    attached hereto does not cause or exacerbate the relevant claim,
    violation or alleged violation of Environmental Laws or
    liability to any third party or Governmental Entity to indemnify
    or provide contribution to such third party or Governmental
    Entity.




    

    3








 






    “Environmental Law” means any Law relating to
    pollution, the protection of human health, safety or the
    environment, or the storage, management, treatment, disposal,
    release, or threat of a release of Hazardous Materials in the
    environment, process and product safety or occupational health
    and safety in effect as of the Effective Date.








 



    “Events of Force Majeure” has the meaning set
    forth in Clause 8.1 (Events of Force Majeure).













 



    “Force Majeure” has the meaning set forth in
    Clause 8.2 (Force Majeure).













 



    “FTC” has the meaning set forth in
    Clause 11 (Conditions).








 



    “Governmental Entity” means any federal, state,
    county, regional, municipal or local government, any
    subdivision, court, administrative agency or commission or other
    authority thereof, or any quasi-governmental or private body
    exercising any regulatory, taxing, importing or other
    governmental or quasi-governmental authority having jurisdiction
    over either of the Parties, the Texas City Styrene Plant, their
    neighbors or the subject matter of this Agreement.



 



    “Hazardous Materials” means (i) all toxic,
    explosive, corrosive, flammable, infectious, carcinogenic,
    mutagenic, radioactive or other hazardous substances or
    materials, wastes, pollutants and contaminants including without
    limitation, petroleum, petroleum distillates, derivatives and
    products, asbestos and asbestos containing materials,
    radioactive materials, and all other substances of any nature
    regulated in any manner pursuant to any Environmental Law;
    (ii) any substance or material which is or becomes defined
    as a “hazardous waste,” “hazardous
    substance,” “pollutant,” or
    “contaminant” under any Environmental Laws, including,
    without limitation, the Comprehensive Environmental Response,
    Compensation and Liability Act (42 U.S.C. § 9601
    et seq.) and the Resource Conservation and
    Recovery Act (42 U.S.C. § 6901 et
    seq.) and any state or local counterpart thereof;
    (iii) any substance or material which becomes regulated by
    any Governmental Entity; (iv) without limitation, any
    substance or material the presence or concentration of which on
    the Texas City Styrene Plant or any other adjacent or nearby
    property owned by Producer or any of Producer’s Affiliates
    causes or threatens to cause a nuisance on such site or to
    adjacent properties, or poses or threatens to pose a hazard to
    the health or safety of persons on, about or adjacent to the
    applicable site; (v) any substance or material the presence
    or concentration of which on adjacent properties could
    constitute a trespass; (vi) without limitation, any
    substance or material which contains polychlorinated bipheynols,
    asbestos, lead-based paint, radon gas, or urea formaldehyde; and
    (vii) any substance, material or refuse, whether solid,
    liquid, semisolid, or contained gaseous material, that has been
    discarded, abandoned or otherwise resides, remains or
    accumulates on or in the Texas City Styrene Plant or any other
    adjacent or nearby property owned by Producer or any of
    Producer’s Affiliates.



 



    “HSR Act” means the United States
    Hart-Scott-Rodino
    Antitrust Improvements Act of 1976, as amended, and all
    applicable regulations promulgated by any Governmental Entity
    related thereto.








 



    “Indemnified Party” has the meaning set forth
    in Clause 13.3 (Indemnification Procedures).













 



    “Indemnifying Party” has the meaning set forth
    in Clause 13.3 (Indemnification Procedures).








 



    “Insolvency Event” means, in relation to any
    Person, that such Person:



 



    (i) files a petition commencing a voluntary case under any
    chapter of the federal bankruptcy laws with respect to such
    Person of any substantial part of its property; or



 



    (ii) files a petition or answer or consent seeking
    reorganization, arrangement, adjustment or composition under any
    similar applicable federal law, or consents to the filing of any
    such petition, answer or consent with respect to such Person of
    any substantial part of its property; or



 



    (iii) appoints or consents to the appointment of a
    custodian, receiver, liquidator, trustee, assignee or other
    similar official in bankruptcy or insolvency with respect to
    such Person of any substantial part of its property; or




    

    4








 






    (iv) has an order for relief against such Person entered by
    a court having jurisdiction in the premises under any chapter of
    the federal bankruptcy laws, and such order remains in force
    undischarged or unstayed for sixty (60) days; or



 



    (v) has a decree or order of a court having jurisdiction in
    the premises for the appointment of a custodian, receiver,
    liquidator, trustee, assignee or other similar official in
    bankruptcy or insolvency of such Person or any substantial part
    of its property, or for the winding up or liquidation of its
    affairs, has been entered, and such decree or order has remained
    in force undischarged or unstayed for a period of sixty
    (60) days; or



 



    (vi) has admitted in writing its inability to pay its debts
    generally as they become due or has made an assignment for the
    benefit of its creditors; or



 



    (vii) causes or is subject to any event with respect to it
    which, under the applicable laws of any jurisdiction, has an
    analogous effect to any of the events specified in (i) to
    (vi) inclusive.



 



    For the avoidance of doubt, an Insolvency Event shall not occur
    in relation to a Person as a result of any proceeding, process
    or other administrative action taken which is vexatious,
    frivolous or an abuse of the process of the court.



 



    “Inventory” means all inventories of styrene
    monomer, ethylene, benzene and ethylbenzene, and other raw
    materials and by-products, owned by Producer as of the Effective
    Date, including any ethylene, benzene or ethylbenzene committed
    to be purchased by Producer within 30 days after the
    Effective Date and any styrene monomer produced after the
    Effective Date pursuant to Section 19.1.








 



    “Invoice” has the meaning set forth in
    Clause 7.1.1 (Invoicing).








 



    “Joint Venture” means that certain contemplated
    new North America-based joint venture between Customer and INEOS
    Group Limited.



 



    “Law” means any federal, state, local,
    municipal, foreign, international or multinational statute, law,
    constitution, judgment, statutory case law, decree, order,
    regulation, ordinance, restriction or rule of any Governmental
    Entity.



 



    “Loss” means any loss, liability, obligation,
    damage or cost (including reasonable legal costs), charge,
    penalty or expense, but excluding any Consequential Losses, and
    Losses shall be construed accordingly.



 



    “Marine Provisions” means the standards,
    provisions and procedures of Producer for the handling of marine
    shipments at its facilities in Texas City, Texas, as such
    standards, provisions and procedures may be revised from time to
    time.



 



    “Month” means the period beginning at
    00:00 hours (Central Standard Time) on the first day in any
    calendar month and ending at 24:00 hours (Central Standard
    Time) on the last day of the same calendar month.








 



    “Newly Imposed Tax” has the meaning set forth
    in Clause 7.5 (Tax).













 



    “Non-Affected Party” has the meaning set forth
    in Clause 8.2 (Notification).













 



    “Non-Defaulting Party” has the meaning set
    forth in Clause 10.1 (Losses).








 



    “Party” means a party to this Agreement and
    includes its successors in title, permitted assigns and
    permitted transferees.



 



    “Person” means any individual, limited
    liability company, firm, corporation, unincorporated
    association, government, state or agency or two or more of the
    foregoing, or any association, trust, or partnership (general or
    limited) or joint venture (whether or not having a separate
    legal personality) or two or more of the foregoing.








 



    “Point of Delivery” has the meaning set forth
    in Clause 5.2 (Title and Transfer; Point of
    Delivery).













 



    “Price” means the price charged by Producer to
    Customer in an Invoice under Clause 7.1 (Invoicing).









    

    5








 






    “Proceedings” means any and all actions, suits,
    proceedings, and hearings of any nature and kind in any court of
    law or equity or before any arbitrator or other body, board or
    tribunal.



 



    “Producer” has the meaning set forth in the
    preamble hereto.



 



    “Product” means styrene monomer meeting the
    specifications as set forth in Schedule A attached
    hereto.



 



    “Release” or “Releases” means
    any placing, spilling, leaking, pumping, pouring, emitting,
    emptying, discharging, leaching or disposal (including the
    abandoning or discarding of barrels, containers and other closed
    receptacles containing Hazardous Materials) of a substance into
    the environment.



 



    “Tax” means any tax, levy, impost, duty or
    other charge or withholding of a similar nature (including any
    penalty or interest payable in connection with any failure to
    pay or any delay in paying any of them).



 



    “Tax Deduction” means a deduction or
    withholding for or on account of Tax from a payment under this
    Agreement.



 



    “Term” has the meaning set forth in
    Clause 2.








 



    “Termination Event” has the meaning set forth
    in Clause 12.1 (Termination Events).








 



    “Texas City Styrene Plant” means that certain
    styrene monomer production plant owned and operated by Producer
    located at 201 Bay Street South, Texas City, Texas, 77590. The
    term “Texas City Styrene Plant” is intended to mean
    solely that portion of the larger plant site in Texas City,
    Texas owned by Producer or any of Producer’s Affiliates
    that is devoted exclusively to the production of styrene
    monomer, and does not encompass other facilities and equipment
    located on such larger parcel.








 



    “Third Party Claim” has the meaning set forth
    in Clause 13.3 (Indemnification Procedures).








 




    1.2  Interpretation



 



    In this Agreement, except to the extent that the context
    requires otherwise:



 



    1.2.1 references in the singular shall include references
    in the plural and vice versa; words denoting any gender shall
    include any other gender and words denoting natural persons
    shall include any other Persons;



 



    1.2.2 headings shall be ignored in construing this
    Agreement;



 



    1.2.3 in computing any period of time under this Agreement,
    the day of the act, event or default from which such period
    begins to run shall be included;



 



    1.2.4 all notices to be given by any Party and all other
    communications and documentation which are in any way relevant
    to this Agreement or the performance, interpretation or
    termination of this Agreement, including any dispute resolution
    proceedings, shall be in the English language;








 



    1.2.5 all references to monetary amounts herein shall be
    references to the lawful currency of the United States of
    America;








 



    1.2.6 the words “include” and
    “including” are to be construed without
    limitation; and



 



    1.2.7 a reference to an “official
    requirement” includes any rule, directive, request or
    guideline (whether or not having the force of law, but not being
    a law) of any Governmental Entity.



 


		
	
    2.  
	
    Term




 



    This Agreement shall be in effect until December 31, 2017
    (the “Term”), unless earlier terminated in
    accordance with the provisions hereof. This Agreement will be
    automatically extended in calendar year increments thereafter,
    unless earlier terminated in accordance with the provisions
    hereof or terminated in writing by either Party upon
    36 months’ prior written notice.




    

    6








 





		
	
    3.  
	
    Supply of
    Product









 




    3.1  Exclusivity








 



    Except as otherwise provided in Section 19.1, Customer
    shall have the exclusive right to the entire production capacity
    of Producer’s Texas City Styrene Plant, and Producer shall
    be prohibited from selling styrene to any other customers
    (including its own Affiliates).



 




    3.2  Quantity



 



    Maximum quantity (the “Maximum Quantity”) shall
    be the entire effective production capacity of the
    Producer’s Texas City Styrene Plant. The quantities of
    Product to be purchased and sold under this Agreement will be
    communicated to Producer by Customer in accordance with
    Clause 4 (Nomination; Shut Down or Decommission).
    There shall be no minimum quantity that Customer is obligated to
    take pursuant to this Agreement and this Agreement shall not be
    interpreted as imposing “take or pay” obligations on
    Customer. Except as otherwise provided in Section 19.1,
    (a) if Customer does not take the Maximum Quantity,
    Producer will not sell any remaining output from the Texas City
    Styrene Plant to any other party, and (b) Producer agrees
    that it will not manufacture any styrene in excess of those
    quantities nominated by Customer hereunder pursuant to
    Clause 4.2 (Nomination), plus or minus 5%, any
    excess to be held exclusively for future nominations by Customer.



 




    3.3  Standard
    of Performance



 



    In supplying and receiving the Product, respectively each of the
    Producer and the Customer shall act in accordance with the terms
    of this Agreement.



 


		
	
    4.  
	
    Nomination;
    Shut Down or Decommission




 




    4.1  Outages



 



    4.1.1 Producer hereby notifies Customer that the only
    planned outage at its Texas City Styrene Plant during calendar
    years 2007 and 2008 is a thirty-one (31) day major
    maintenance turn-around currently scheduled for October of 2008.



 



    4.1.2 Beginning in calendar year 2009, Producer shall, on
    or before June 30 of the immediately preceding year, provide
    Customer, for planning purposes only, written notice of any
    planned outages at its facility which will affect the
    Producer’s ability to deliver Product to Customer during
    such calendar year.



 



    4.1.3 Producer shall provide at least six
    (6) months’ prior written notice of each scheduled
    turnaround of its Texas City Styrene Plant, to the extent such
    turnaround effects the ability of Producer to deliver Product to
    Customer. Producer shall provide prompt written notice to
    Customer of the completion of such turnaround and any changes to
    the commencement or duration of any such turnaround.



 




    4.2  Nomination



 



    4.2.1 On or before five days after the Effective Date,
    Customer shall provide to Producer, for planning purposes only,
    written notice of its estimated monthly take of Product in each
    month remaining in 2007 and for each month in 2008. At least
    ninety (90) days prior to the commencement of each calendar
    year thereafter, Customer shall provide to Producer, for
    planning purposes only, written notice of its estimated monthly
    take of Product in each month of such calendar year.



 



    4.2.2 If any notice from Customer under Clause 4.2.1
    indicates that Customer will take no Product for any calendar
    year (for this purpose the remaining days in 2007 after the
    Effective Date until the beginning of the next calendar year
    being deemed a calendar year), Producer may at its sole option
    and its sole cost permanently shut down and decommission the
    Texas City Styrene Plant, by providing Customer no less than
    five (5) days’ prior written notice of same. For
    greater certainty, (i) if Customer nominates no Product for
    any calendar year, it shall have no financial obligation to
    Producer for that calendar year, and (ii) if Producer
    elects to permanently shut down and decommission the Texas City
    Styrene Plant, Customer shall not be entitled to any refund of
    all or any portion of the non-refundable capacity reservation
    charge paid by Producer pursuant to Clause 6.1.




    

    7








 






    4.2.3 On or before five days after the Effective Date,
    Customer shall provide Producer with written notice of its
    Product requirement for the remaining months in that calendar
    quarter and for the upcoming calendar quarter. At least
    forty-five (45) days prior to the commencement of each
    calendar quarter thereafter, Customer shall provide Producer
    with written notice of its Product requirement for the upcoming
    calendar quarter (which shall not exceed 24% of effective annual
    capacity at that time, after taking into account any planned
    outages and re-commissioning time if Customer nominated no
    Product in the immediately preceding quarter). The nomination
    shall, subject to Force Majeure, be considered firm and binding.
    Producer shall have no obligation to deliver in excess of the
    nominated quantity for any calendar quarter. For greater
    clarity, it is understood that Customer may nominate any
    quantity in a calendar quarter in its sole discretion, including
    no quantity at all but not, in any event, exceeding 24% of the
    effective annual capacity of Producer’s Texas City Styrene
    Plant at that time. There shall be no requirement that Customer
    be obligated to take any minimum quantity of Product from the
    Producer’s Texas City Styrene Plant but, to the extent that
    Customer elects to nominate any quantity greater than zero (0),
    in its sole discretion, such quantity must be at least the
    minimum quantity needed to operate the Texas City Styrene Plant
    from a mechanical standpoint.



 



    4.2.4 If any notice from Customer under Clause 4.2.3
    indicates that Customer will take no Product for any calendar
    quarter (for this purpose the remaining days after the Effective
    Date until the beginning of the next calendar quarter being
    deemed a calendar quarter), Producer may at its sole option and
    its sole cost permanently shut down and decommission the Texas
    City Styrene Plant.



 



    4.2.5 Any determination by Producer to permanently shut
    down the Texas City Styrene Plant pursuant to Clause 4.2.2 or
    Clause 4.2.4 shall result in the termination of this
    Agreement, such termination to be effective upon the receipt by
    Customer of written notice from Producer of its election to
    permanently shutdown the Texas City Styrene Plant and the
    cessation of production at the Texas City Styrene Plant.



 


		
	
    5.  
	
    Delivery,
    measurement and testing




 




    5.1  Delivery
    Rate



 



    Producer shall endeavor to deliver, and Customer shall endeavor
    to take, Product in accordance with a delivery schedule upon
    which the Parties shall mutually agree within five
    (5) Business Days of the binding notification referred to
    in Clause 4.2.3 of this Agreement.



 




    5.2  Title
    and Title Transfer; Point of Delivery



 



    All Product delivered under this Agreement shall be delivered
    F.O.B. (Incoterms 2000) Producer’s Texas City Styrene
    Plant via tank car, tank truck, ship, barge or other inland
    water or marine vessel. All shipments of Product by ship, barge
    or other inland water or marine vessel shall be made in
    conformance with the Marine Provisions, it being understood that
    to the extent the Marine Provisions conflict with any provisions
    of this Agreement, the provisions of this Agreement shall
    control. Unless Producer otherwise consents in writing, Customer
    shall supply all tank cars, tank trucks, ships, barges and other
    inland water and marine vessels required for all shipments of
    Product purchased and sold under this Agreement. The point of
    delivery (the “Point of Delivery”) of any
    Product purchased and sold under this Agreement shall be the
    point of transfer of custody of such Product from Producer to
    Customer and shall be (a) for deliveries by tank car or
    tank truck, the point at which such tank car or tank truck is no
    longer on premises owned by Producer or any of Producer’s
    Affiliates by crossing the perimeter boundary thereof, and
    (b) for deliveries by ship, barge or other inland water or
    marine vessel, the first inlet flange of the ship, barge or
    other inland water or marine vessel onto which such Product is
    loaded at Producer’s Texas City Styrene Plant. Title and
    risk of loss shall pass to Customer at the Point of Delivery,
    irrespective of whether Customer or Producer owns or has
    provided any tank car, tank truck, ship, barge or other inland
    water or marine vessel onto which such Product is loaded. As
    between Producer and Customer, (a) Producer shall be in
    control and possession of all Product purchased and sold under
    this Agreement and responsible for and shall indemnify and hold
    harmless Customer for any damage or injury caused thereby or
    thereto until risk of loss with respect thereto has passed to
    Customer, and (b) Customer shall be in control and
    possession of all Product purchased and sold under this
    Agreement and responsible for any damage or injury caused
    thereby or thereto after risk of loss with respect thereto has
    passed to Customer.




    

    8








 







    5.3  Measurement,
    Sampling and Analysis



 



    5.3.1 Confirmatory tests of the quantity of Product
    shipments shall be performed prior to delivery to Customer by an
    independent surveyor mutually acceptable to the Parties. All
    costs and expenses of such surveyor shall be paid by Customer.
    Confirmatory tests of the quality of Product shipments shall be
    performed prior to delivery to Customer by Producer’s PPQ
    lab. Quality of each shipment of Product shall be tested by
    taking representative samples (a) in the case of deliveries
    by tank car or tank truck, from Producer’s loading tanks
    prior to Producer loading the relevant tank car or tank truck,
    or (b) in the case of deliveries by ship, barge or other
    inland water or marine vessel, from the intake flange of the
    ship, barge or other inland water or marine vessel (and from the
    tanks thereof where appropriate) onto which such Product is
    loaded. Producer shall retain such samples for not less than
    three (3) months and shall provide Customer with access to
    such samples and all records maintained by Producer with respect
    thereto. Quantity of each shipment of Product shall be
    determined (i) in the case of deliveries by tank car or
    tank truck, by weighing such Product on certified scales at
    Producer’s Texas City Styrene Plant, or (ii) in the
    case of deliveries by ship, barge or other inland water or
    marine vessel, by taking the opening and closing inventory of
    Producer’s properly calibrated static shore tanks before
    and after each shipment is lifted. All quantities determined in
    this manner shall be conclusive for purposes of this Agreement
    unless proven to be in error by more than 0.5%. Customer’s
    sole remedy with respect to Customer’s loss on any Product
    delivered under this Agreement which does not conform with the
    Specifications shall be to require Producer to either (at
    Producer’s option) (i) reprocess such Product or
    (ii) refund the purchase price paid by Customer for the
    non-conforming Product.



 


		
	
    6.  
	
    Non-Refundable
    Capacity Reservation Charge; Product Price




 




    6.1  Capacity
    Reservation Charge



 



    As consideration for this Agreement, including but not limited
    to the reservation of the full production capacity of the Texas
    City Styrene Plant for the entire duration of the Term and the
    terms of Clause 19 hereof (Covenant not to Compete),
    Customer shall pay Producer a non-refundable capacity
    reservation charge equal to $58 million. The capacity
    reservation charge shall be paid by Customer to Producer within
    ten (10) Business Days after the Effective Date. All
    amounts due shall be payable by wire transfer of immediately
    available U.S. funds.



 




    6.2  Product
    Price



 



    The Price for all Product to be delivered under this Agreement
    shall be *** For greater clarity, *** Such Price
    does not include any applicable Taxes that may apply to the sale
    of Product, all of which will be added to the applicable invoice
    and paid by Customer.



 


		
	
    7.  
	
    Payment
    and Invoicing




 




    7.1  Invoicing



 



    7.1.1 On or about the fifth (5th) Business Day of each
    Month, Producer will send Customer a consolidated invoice for
    all Product delivered during the preceding Month pursuant to
    this Agreement (the “Invoice”). The Customer
    will pay for all supplied Product hereunder in U.S. dollars
    via electronic fund transfer (“EFT”), such that
    the funds are available to Producer no later than the thirtieth
    (30th) day of the Month following the Month in which Producer
    supplied the Product, regardless of whether such thirtieth
    (30th) day is a Business Day or a non-Business Day, terms net
    cash. Notwithstanding that the Price in the Invoice may be a
    provisional price, pursuant to Clause 7.1.2, Customer will
    pay the Invoice in full.



 



    7.1.2 If any component required to calculate the Price is
    not final at the time an Invoice is to be issued under
    Clause 7.1.1 and such component is taken from a publicly
    available source, Producer will use the most recently available
    value for that component to compute a provisional price for
    invoicing. When all of the pricing components have been
    finalized, Producer will calculate the final Price and the
    appropriate debit or credit due, as compared to the provisional
    price, and will apply such debit or credit on the next Invoice,
    which Invoice will include notice of such debit or credit and
    all related calculations.




    

    9








 





		
	
    7.2  
	
    Payment
    Procedure




 



    Unless otherwise agreed in writing by the Parties, Customer will
    pay each Invoice by EFT. Each entry initiated by Customer will
    be accompanied by Producer’s Invoice number. Any sums
    payable by Producer to Customer under this Agreement will also
    be made by EFT. Each entry initiated by Producer will be
    accompanied by a form of identification. Producer and Customer
    will, from time to time, provide the other information necessary
    to effect payments via EFT.



 


		
	
    7.3  
	
    Disputed
    Payments




 



    7.3.1 Customer may, in good faith, dispute and withhold any
    amount specified in an Invoice by providing written notice of
    such dispute to Producer within ten (10) Business Days of
    receipt of such Invoice. Any undisputed amounts shall be paid on
    or before the due date. Neither a failure to dispute any amount
    specified in an Invoice within such period nor settlement of an
    Invoice shall prejudice Customer’s rights to subsequently
    bring a claim in respect of such Invoice; provided that any such
    claim must be brought within two (2) years from the date of
    the Invoice to which the claim relates.



 



    7.3.2 The Parties shall seek to settle the disputed amount
    in good faith as soon as reasonably practicable and any payment
    adjustment required to be made in accordance with the resolution
    of a Dispute shall be made within five (5) Business Days of
    the date of that resolution. Any amount subsequently determined
    to have been wrongly withheld shall incur interest under
    Clause 7.6 (Late Payment) from and including the
    date when the amount should have been paid if the Dispute had
    not occurred until but excluding the date payment of such
    amount, including accrued interest, is made in full.



 



    7.3.3 A Dispute as to any amount payable under this
    Agreement shall not relieve the payor of its obligations to make
    any other payment required by this Agreement when due and
    payable.



 




    7.4  No
    Deductions



 



    All sums payable by Customer to Producer under this Agreement
    shall be made without any Tax Deduction or other deduction,
    withholding, set-off or counterclaim save only as may be
    required by Applicable Law or expressly provided for in this
    Agreement. Subject to compliance with Applicable Law, the
    Parties shall use commercially reasonable efforts to minimize
    the requirement for any such withholding.



 




    7.5  Tax



 



    Any Tax (other than on income or on gross receipts or measured
    by income or gross receipts) hereafter imposed on the
    manufacture, sale, delivery or use of Product to or by Customer
    pursuant to this Agreement (or on Producer, or required to be
    paid or collected by Producer, by reason of the manufacture,
    sale, delivery or use of such Product) (a “Newly Imposed
    Tax”) shall be paid by Customer in addition to the
    Product Price. Customer shall be entitled to any Tax credit,
    refund or reduction in Tax charge that may be available to
    Customer with respect to the Taxes paid on delivery,
    manufacture, sale or use of such Product, and Producer shall
    cooperate with Customer if necessary to secure such credit,
    refund or tax reduction.



 




    7.6  Late
    Payment



 



    Any amount due and payable under this Agreement shall, if not
    paid when due, bear interest (after as well as before any
    judgment) at the Default Rate, which interest shall be payable
    on demand and shall accrue from day to day from and including
    the date such amount was due and payable until (but excluding)
    the date of actual payment in full of such amount and such
    interest.



 




    7.7  Suspension
    of Supply of Product for Non-Payment



 



    If any amount exceeding $250,000 due to Producer in respect of
    Product delivered by Producer to Customer is not the subject of
    a bona fide Dispute and is not paid when due, Producer may
    provide written notice referencing this Clause 7.7
    (Suspension of Supply of Product for Non-Payment) to
    Customer that the amount is due and unpaid. If Customer has not
    paid the unpaid amount in full by the date falling ten
    (10) Business Days from the date of receipt




    

    10








 






    of Customer’s written notice, Producer may, without
    prejudice to its rights under Clause 10 (Default)
    and Clause 12 (Termination), immediately suspend
    further deliveries of Product until payment of such outstanding
    amount is received by Producer.



 


		
	
    8.  
	
    Force
    Majeure




 




    8.1  Event
    of Force Majeure



 



    If a Party fails to observe or perform any of the covenants or
    obligations imposed upon it by this Agreement and such failure
    shall have been occasioned by or in consequence of Force
    Majeure, such failure shall be deemed not to be a breach of such
    covenants or obligations, provided, however, that lack of
    finances or other financial cause for whatever reason shall in
    no event be Force Majeure. Force Majeure shall mean, among other
    events customarily considered force majeure, any event beyond
    the reasonable control of a Party for which that Party (the
    “Affected Party”) has elected to declare an
    event of Force Majeure. Force Majeure shall include, without
    limitation, acts of God, the inability to obtain or curtailment
    of supplies of feedstock, or of electrical power, water, fuel or
    other utilities or services necessary to operate Producer’s
    or Customer’s facility, and inability to deliver or receive
    Product due to transportation or storage problems for which the
    transporter or storage operator has declared Force Majeure (all
    of which are referred to as “Events of Force
    Majeure”).



 



    For the avoidance of doubt a change of economic, monetary or
    fiscal circumstances which renders this Agreement uneconomic for
    either of the Parties shall not in itself constitute an Event of
    Force Majeure. The occurrence of an event of Force Majeure shall
    not extend the term of this Agreement.



 




    8.2  Notification



 



    If a Party is, or may be, prevented from or delayed in
    performing any of its obligations under this Agreement by an
    Event of Force Majeure, then such Party will notify as soon as
    reasonably practicable the other Party (the
    “Non-Affected Party”) of the event or
    circumstances constituting the Event of Force Majeure, the
    likely duration and obligations the performance of which is
    likely to be delayed or prevented.



 




    8.3  Legal
    Effects



 



    On giving notice in accordance with Clause 8.2
    (Notification), the Affected Party shall be excused from
    the performance or punctual performance, as the case may be, of
    the obligations notified for so long as the circumstances
    notified (or the effects thereof) continue and the Affected
    Party shall be deemed not to be in breach of this Agreement to
    the extent that such breach is caused by such Event of Force
    Majeure. The Affected Party shall nevertheless use all
    reasonable endeavors to continue to perform its obligations
    under this Agreement and to minimize or eliminate the adverse
    effects of such Event of Force Majeure with all reasonable
    dispatch and shall keep the Non-Affected Party informed of
    material developments relating to such Event of Force Majeure.
    The Affected Party shall notify the Non-Affected Party of the
    steps it proposes to take to minimize or eliminate the effects
    of such Event of Force Majeure, including any reasonable
    alternative means for performance and, to the extent that it is
    not prejudiced in so doing, the Non-Affected Party shall use all
    reasonable endeavors to co-operate in taking such steps. The
    requirement that any Event of Force Majeure be minimized or
    eliminated with all reasonable dispatch will not require the
    settlement of strikes or labor disputes by acceding to the
    demands of the opposing party or parties.



 




    8.4  Financial
    Consequences



 



    Notwithstanding Clause 8.3 (Legal Effects), a Party
    shall not be excused of an obligation to pay the other Party
    pursuant to this Agreement following the occurrence of an Event
    of Force Majeure, except that Customer is not obliged to pay for
    Product it did not receive as a consequence of an Event of Force
    Majeure.



 




    8.5  Alternative
    Arrangements



 



    As soon as reasonably practicable after the notification of the
    occurrence of an Event of Force Majeure, the Parties shall enter
    into good faith discussions with a view to alleviating the
    effects of such Event of Force Majeure or




    

    11








 






    agreeing to alternative arrangements that may be fair and
    reasonable taking into account their respective obligations
    towards third parties.



 




    8.6  Termination
    for Extended Force Majeure



 



    8.6.1 If an Event of Force Majeure prevails for a period in
    excess of six (6) Months, then the Non-Affected Party may,
    on the giving of twenty (20) Business Days notice (but
    subject to Clause 8.6.3), terminate this Agreement.



 



    8.6.2 If an Event of Force Majeure prevails for a period in
    excess of nine (9) Months, the Affected Party may, on the
    giving of twenty (20) Business Days notice (but subject to
    Clause 8.6.3) terminate this Agreement.



 



    8.6.3 This Agreement may only be terminated under
    Clause 8.6.1 or Clause 8.6.2 if the relevant Event of
    Force Majeure is subsisting and the Affected Party is still
    excused from performance under Clause 8.3 (Legal
    Effects) at the date that any termination notice is issued
    pursuant to Clause 8.6.1 or Clause 8.6.2.



 




    8.7  No
    Liability for Force Majeure Termination



 



    Without prejudice to Clause 22.1 (Survival of Rights,
    Duties and Obligations), and except as is otherwise provided
    in this Agreement, (including, without limitation,
    Clause 19), neither Party shall have any liability to the
    other as a result of the exercise of any rights to terminate
    this Agreement pursuant to Clause 8.6 (Termination for
    Extended Force Majeure).



 


		
	
    9.  
	
    Representations
    and Warranties




 



    Each Party represents and warrants to and for the benefit of the
    other Party that, as of the date hereof:



 




    9.1  Status



 



    9.1.1 It is a corporation, duly incorporated and validly
    existing under the laws of its jurisdiction of incorporation.



 



    9.1.2 It has the power to own its assets and carry on its
    business as it is being conducted.



 




    9.2  Powers



 



    It has the power to enter into, perform and deliver, and has
    taken all necessary action to authorize its entry into,
    performance and delivery of this Agreement and the transactions
    contemplated by this Agreement.



 




    9.3  Authorization
    and Consents



 



    Except for any requirements under the HSR Act, all actions,
    conditions and things required by Applicable Law to be taken,
    fulfilled and done, including the obtaining of any necessary and
    material Authorizations in order to enable it lawfully to enter
    into, exercise its rights and perform and comply with its
    obligations under this Agreement, to ensure that those
    obligations are valid, legally binding and enforceable, have
    been taken, fulfilled and done in all material respects.



 




    9.4  Non-Violation



 



    Except for any requirements under the HSR Act, the entry into
    and performance by it of the transactions contemplated by this
    Agreement do not and will not conflict with (i) any
    Applicable Law or official requirement applicable to it (except
    where such conflict would not materially adversely affect such
    Party or the enforceability of this Agreement) or (ii) its
    organizational documents.




    

    12








 







    9.5  Obligations
    Binding



 



    Its obligations under this Agreement are valid, binding and
    enforceable at law in accordance with its terms, subject to
    bankruptcy, insolvency, reorganization or similar laws affecting
    creditors’ rights generally and general equitable
    principles (whether enforcement is sought by proceedings in
    equity or at law).



 




    9.6  Litigation



 



    So far as it is aware, no litigation, arbitration or
    administrative proceeding is current, pending or threatened to
    restrain the entry into, exercise of any of its rights under
    and/or
    performance or enforcement of or compliance with any of its
    obligations under this Agreement.



 




    9.7  No
    Judgments



 



    It is not subject to any outstanding judgment, rule, order,
    statement of claim, injunction or decree of any court,
    governmental or regulatory authority or body acting in an
    arbitral or adjudicative capacity that materially adversely
    affects its ability to perform its obligations under, or the
    enforceability of, this Agreement.



 




    9.8  No
    Reliance



 



    It is not relying upon any representations of the other Party
    other than those expressly set out in this Agreement.



 




    9.9  Product



 



    Producer warrants that Product shall meet the specifications set
    forth in Schedule A hereto, that, at the time of
    delivery of Product to Customer, it shall have good title to
    such Product and that all Product delivered to Customer pursuant
    to this Agreement shall be delivered free and clear of all
    liens, encumbrances and claims whatsoever. PRODUCER MAKES NO
    OTHER EXPRESS OR IMPLIED WARRANTY, STATUTORY OR OTHERWISE,
    CONCERNING THE PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY
    WARRANTY OF MERCHANTABILITY OR ANY WARRANTY OF FITNESS FOR A
    PARTICULAR PURPOSE OR USE OR ANY OTHER MATTER WITH RESPECT TO
    ANY PRODUCT DELIVERED BY PRODUCER, WHETHER USED ALONE OR IN
    COMBINATION WITH ANY OTHER MATERIAL.



 




    9.10  Assignments



 



    Assignment of the Assigned Contracts will be effectuated
    pursuant to an assignment and assumption agreement in form and
    substance mutually satisfactory to Producer and Customer, and
    will be effective, as to each Assigned Contract, as of the later
    of (a) the first day of the first Month commencing after
    the Effective Date and (b) the date on which the
    counterparty to such Assigned Contract consents to the
    assignment of such Assigned Contract from Producer to Customer,
    and, in each case, only as to orders to be filled after the
    effectiveness of such assignment, and Producer shall remain
    responsible for and shall indemnify and hold harmless Customer,
    in accordance with the provisions of Clause 13
    (Indemnity) hereof, against any obligations and
    liabilities arising under or existing with respect to such
    Assigned Contracts prior to the Effective Date.



 


		
	
    10.  
	
    Default




 




    10.1  Losses



 



    If either Party is in breach of any of its obligations under
    this Agreement (the “Defaulting Party”), the
    Defaulting Party shall be liable to the other Party (the
    “Non-Defaulting Party”) for all Losses incurred
    by the Non-Defaulting Party as a result of that breach.



 




    10.2  Exclusion
    of Consequential Loss



 




    EXCEPT AS
    OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT
    SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY (EVEN IF
    NEGLIGENT) FOR ANY 




    

    13








 






    CONSEQUENTIAL LOSSES UNLESS (a) SUCH CONSEQUENTIAL
    LOSSES RESULT FROM THE GROSS NEGLIGENCE OR INTENTIONAL
    MISCONDUCT OF SUCH PARTY OR (b) SUCH CONSEQUENTIAL LOSSES
    ARE PAYABLE BY AN INDEMNIFIED PERSON PURSUANT TO A THIRD PARTY
    CLAIM FOR WHICH INDEMNIFICATION IS AVAILABLE HEREUNDER.



 




    10.3  Mitigation



 



    The Non-Defaulting Party shall use commercially reasonable
    efforts to mitigate any Losses and Consequential Losses caused
    by the breach of the Defaulting Party.



 




    10.4  Quantification
    of Damages



 



    The Non-Defaulting Party shall provide the Defaulting Party with
    evidence to substantiate the amount of Losses claimed by the
    Non-Defaulting Party. If the Parties fail to agree upon the
    amount of Losses payable by the Defaulting Party to the
    Non-Defaulting Party, the Dispute shall be resolved in
    accordance with Clause 21 (Disputes).



 




    10.5  Exclusive
    Remedies



 



    The Parties intend that their respective rights, obligations and
    liabilities as provided for in this Agreement shall be
    exhaustive of the rights, obligations and liabilities between
    them arising out of or in connection with this Agreement.
    Accordingly, the remedies expressly stated in this Agreement
    shall be the sole and exclusive remedies of the Parties for
    liabilities to one another arising out of or in connection with
    this Agreement, including any representation, warranty or
    undertaking given in connection with it, notwithstanding any
    remedy otherwise available at law or in equity, provided that
    nothing in this Clause 10.5 (Exclusive Remedies)
    shall operate to exclude either Party’s right to seek
    equitable remedies in connection with a breach or threatened
    breach of this Agreement.



 


		
	
    11.  
	
    Conditions




 



    11.1 This Agreement shall become effective (the
    “Effective Date”) as of the earlier of:



 



    (a) the date on which (i) the United States Federal
    Trade Commission (“FTC”) approves this
    Agreement and the transactions contemplated hereby or notifies
    Customer or Producer that no filing under the HSR Act is
    required in connection with this Agreement or the transactions
    contemplate hereby or (ii) all waiting periods applicable
    to this Agreement and the transactions contemplated hereby under
    the HSR Act shall have expired or been terminated; and



 



    (b) March 31, 2008, unless, in the case of this clause
    (b), (i) the FTC has either (y) not approved this
    Agreement and the transactions contemplated hereby by
    March 31, 2008 (or all waiting periods applicable to this
    Agreement and the transactions contemplated hereby under the HSR
    Act shall have not expired or been terminated) or (z) on or
    prior to March 31, 2008, disapproved this Agreement or the
    transactions contemplated hereby, and (ii) on or prior to
    March 31, 2008, Customer has provided Producer with written
    notice, in accordance with the provisions of Clause 20
    (Notices) of its election to terminate this Agreement and
    paid Producer a termination fee in the amount of
    $6 million; provided, however, that no such
    notice of termination may be given by Customer prior to the
    earlier of March 20, 2008 and the date Customer receives
    written notice from the FTC that it has disapproved this
    Agreement or the transactions contemplated by this Agreement.



 



    11.2 Each Party agrees to use commercially reasonable
    efforts to take (a) all reasonable actions necessary to
    comply promptly with all legal requirements which may be imposed
    on it with respect to the transactions contemplated by this
    Agreement (which actions shall include, without limitation,
    furnishing all information required under the HSR Act and in
    connection with Authorizations and other official requirements)
    and will promptly cooperate with and furnish information to the
    other Party in connection with any such requirements imposed
    upon it or any of its affiliates in connection with the
    transactions contemplated by this Agreement and (b) all
    reasonable actions necessary to obtain (and will cooperate with
    the other Party in obtaining) any Authorization of any
    Governmental Entity or other public or private third party
    required to be obtained or made by it in connection with the
    transactions contemplated by this Agreement or the taking of any
    action contemplated thereby




    

    14








 






    or by this Agreement. Each of the Parties shall (i) use all
    reasonable efforts to comply as expeditiously as possible with
    all lawful requests of the FTC or the Antitrust Division of the
    Department of Justice (the “Antitrust
    Division”) for additional information and documents and
    (ii) to request early termination of the waiting period and
    not extend any waiting period under the HSR Act or enter into
    any agreement with the FTC or the Antitrust Division not to
    consummate the transactions contemplated by this Agreement,
    except with the prior written consent of the other Party hereto.
    Unless prohibited by Applicable Law, each Party shall promptly
    forward to the other Party any correspondence it receives from
    the FTC or the Antitrust Division regarding the approval or
    disapproval of the formation of the Joint Venture or the
    transactions contemplated by this Agreement.



 



    11.3 The commencement of the Parties’ obligations
    under this Agreement shall be subject to the condition that each
    approval and consent required to be obtained by Producer or any
    of its Affiliates from third parties in connection with the
    transactions contemplated by this Agreement (other than any
    consent or approval required from a third party to assign any of
    the Assigned Contracts) shall have been duly obtained by
    Producer and each of its Affiliates, as the case may be, and
    shall be in full force and effect.



 


		
	
    12.  
	
    Termination




 




    12.1  Termination
    Events



 



    Each of the following shall constitute a termination event (a
    “Termination Event”):



 



    12.1.1 breach of a material obligation (excluding for these
    purposes any payment default) by a Party where that Party has
    not taken steps to remedy the breach within twenty
    (20) Business Days of receipt of written notification from
    the other Party of the occurrence of such breach or, in the
    event that such steps have been taken within such twenty
    (20) Business Day period, the breach has not been remedied
    by the date that is six (6) Months after receipt of
    notification of the breach or the Party in breach does not
    continue to seek to remedy the breach during such six
    (6) Month period;



 



    12.1.2 the occurrence of an Insolvency Event in respect of
    a Party; or



 



    12.1.3 a Party fails to make payment of any amount in
    excess of $250,000 when due (other than an amount that is the
    subject of a bona fide Dispute) and such amount is not paid
    within sixty (60) days following the date the Party owed
    such amount notifies the non-paying Party that such amount is
    due and has not been paid.



 




    12.2  Right
    to Terminate



 



    If a Termination Event has occurred and is continuing, the
    Non-Defaulting Party shall have the right, in its absolute
    discretion, to terminate this Agreement by providing written
    notice to Defaulting Party pursuant to Clause 20 hereof
    (Notices), which notice shall specify that a Termination
    Event has occurred under the respective Clause and that this
    Agreement will terminate with effect from the date specified in
    such notice, which date shall not be later than ninety
    (90) days after the date of such notice.



 




    12.3  Entitlement
    on Termination



 



    If either Party terminates this Agreement in accordance with the
    terms of this Agreement, such termination shall be without
    prejudice to the rights, duties and liabilities of either Party
    accrued prior to termination.



 




    12.4  Sole
    Rights of Termination



 



    The only rights of the Parties to terminate this Agreement are
    as set out in Clause 2 (Term), Clause 4.2.5
    (Shutdown), Clause 8.6 (Termination for Extended
    Force Majeure), Clause 11 (Conditions) and this
    Clause 12 (Termination).




    

    15








 





		
	
    13.  
	
    Indemnity




 




    13.1  Indemnification
    of Customer



 



    Producer agrees to indemnify, defend and hold harmless Customer
    and its partners, directors, officers and employees (the
    “Customer Indemnified Persons”), from and
    against any and all Losses, Claims and Proceedings to the extent
    arising out of:



 



    13.1.1 any breach of any Assigned Contract by Producer
    prior to the first day of the first Month commencing after the
    Effective Date;



 



    13.1.2 any past, present or future violation of
    Environmental Laws with respect to the Texas City Styrene Plant;



 



    13.1.3 the presence of any Hazardous Materials in, on or
    under the Texas City Styrene Plant or in, on or under adjacent
    lands or waterbodies where such Hazardous Materials have
    migrated from or been Released from the Texas City Styrene Plant;



 



    13.1.4 any use, handling, production, generation,
    manufacture, transportation, storage, handling, disposal, spill
    or Release of any Hazardous Materials at, on, under, about or
    from the Texas City Styrene Plant on or under adjacent lands or
    waterbodies where such Hazardous Materials have migrated from or
    been Released from the Texas City Styrene Plant;



 



    13.1.5 any spill or Release of styrene or any other
    substance from any asset, facility or equipment comprising or
    located at the Texas City Styrene Plant, including, without
    limitation: (a) all Environmental Damages arising out of
    such spill or Release of materials; (b) any damage to the
    Texas City Styrene Plant or to other property; and (c) the
    cost of the Product that has been spilled or Released;



 



    13.1.6 any Product related incident or occurrence when
    Producer has the risk of loss of such Product, except to the
    extent that such Claim is attributable to the gross negligence,
    or intentional misconduct of Customer or any other Customer
    Indemnified Person;



 



    13.1.7 any Product (whether by itself or in combination
    with any other material), or any hazard thereof, to the extent
    arising at any time or related to any period before risk of loss
    of such Product has transferred to Customer;



 



    13.1.8 all retained assets and retained liabilities,
    including, without limitation, any and all environmental-related
    liabilities associated with Producer’s Texas City Styrene
    Plant;



 



    13.1.9 environmental, health and safety requirements and
    obligations regarding the use, handling, storage,
    transportation, recycling, processing, release and disposal of
    all raw materials, Product (prior to the time title and risk of
    loss transfers to Customer in accordance with Clause 5.3
    (Title and Title Transfer; Point of Delivery)),
    by-products, residuals, derivatives and wastes of any kind at
    the Texas City Styrene Plant;



 



    13.1.10 any material breach by Producer of, or any material
    inaccuracy of, any representation or warranty of Producer
    contained in this Agreement; and



 



    13.1.11 any breach or non-performance by Producer of any
    covenant to be performed by it that is contained in this
    Agreement.



 




    13.2  Indemnification
    of Producer



 



    Customer agrees to indemnify, defend and hold harmless Producer
    and its directors, officers and employees (the “Producer
    Indemnified Persons”), from and against any and all
    Losses, Claims and Proceedings to the extent arising out of:



 



    13.2.1 any breach of any Assigned Contract by Customer
    after the first day of the first Month commencing after the
    Effective Date;



 



    13.2.2 any Product related incident or occurrence when
    Customer has the risk of loss of such Product, except to the
    extent that such Claim is attributable to the gross negligence,
    or intentional misconduct of Producer or any other Producer
    Indemnified Person;




    

    16








 






    13.2.3 any material breach by Customer of, or any material
    inaccuracy of, any representation or warranty of Customer
    contained in this Agreement; and



 



    13.2.4 any breach or non-performance by Customer of any
    covenant to be performed by it that is contained in this
    Agreement.



 




    13.3  Indemnification
    Procedures



 



    Within a reasonable period of time after a Customer Indemnified
    Person or a Producer Indemnified Person (whether one or more, an
    “Indemnified Party”) establishes a basis for or
    receives actual notice of any Claim covered by Clause 13.1
    (Indemnification of Customer) or Clause 13.2
    (Indemnification of Producer), respectively, the
    Indemnified Person shall notify the Party from whom
    indemnification is sought (the “Indemnifying
    Party”) in writing of such Claim, provided, however,
    that the failure to so notify the Indemnifying Party shall not
    relieve the Indemnifying Party from any liability which it may
    have to the Indemnified Person pursuant to Clause 13.1 or
    Clause 13.2, respectively, except to the extent of material
    detriment suffered by the Indemnifying Party as a result of such
    failure. In the event that a Claim arises out of or results from
    matters with respect to third parties (a “Third Party
    Claim”), the Indemnifying Party shall within a period
    of ten (10) days of notice of any Third Party Claim, notify
    the Indemnified Party indicating that the Indemnifying Party
    shall undertake the defense thereof by attorneys chosen by it,
    which are reasonably acceptable to the Indemnified Person. The
    Indemnifying Person shall make reasonable efforts to provide the
    Indemnified Person with copies of all correspondence and
    communications, and otherwise keep the Indemnified Party
    reasonably informed of all developments, relating to the defense
    of such Third Party Claim. So long as the Indemnifying Party is
    defending any Third Party Claim actively and in good faith, the
    Indemnified Person shall not settle such Third Party Claim
    without the consent of the Indemnifying Party.



 




    13.4  Defense
    of Third Party Claim



 



    If the Indemnifying Party does not provide notice to the
    Indemnified Party within ten (10) days of notice of any
    Third Party Claim indicating that the Indemnifying Party shall
    undertake the defense thereof in accordance with
    Clause 13.3 (Indemnification Procedures), or if at
    any time thereafter the Indemnifying Party fails to defend such
    Third Party Claim actively and in good faith, the Indemnified
    Party shall (upon further notice) have the right to undertake
    the defense, compromise or settlement of such Third Party Claim
    or consent to the entry of a judgment with respect to such Third
    Party Claim, on behalf of and for the account and risk of the
    Indemnifying Party, and the Indemnifying Party shall thereafter
    have no right to challenge the Indemnified Party’s defense,
    compromise, settlement or consent to judgment. Irrespective of
    which Party has the right to defend, compromise or settle any
    Third Party Claim pursuant to this Clause 13.4 (Defense
    of Third Party Claim), each of the Indemnifying Party and
    the Indemnified Party shall be entitled to consult with each
    other, to the extent it reasonably requests, in respect of the
    defense of such Third Party Claim and shall cooperate in the
    defense of any such Third Party Claim, including making its
    partners (if applicable), officers, directors, employees and
    books and records available for use in such Third Party Claim,
    and shall take those actions reasonably within its power which
    are reasonably necessary to preserve any legal defenses to such
    matters, without the necessity of formal subpoena or court
    action.



 




    13.5  Payment



 



    The Indemnifying Party shall promptly pay each Indemnified Party
    any amount properly due under this Clause 13
    (Indemnity) upon demand therefor and reimburse each
    Indemnified Party for all reasonable out of pocket expenses
    (including reasonable attorneys’ fees and costs of court)
    for which the Indemnified Party is entitled to be indemnified
    hereunder as they are incurred by such Indemnified Party. Upon
    judgment, determination, settlement or compromise of any Third
    Party Claim, the Indemnifying Party shall, upon demand therefor,
    promptly pay on behalf of the Indemnified Party,
    and/or shall
    promptly reimburse the Indemnified Party for its payment of, the
    amount so determined by such judgment, determination, settlement
    or compromise and all other Claims of the Indemnified Party with
    respect thereto, unless, in the case of a judgment or
    determination, an appeal is made therefrom; provided, however,
    that if the Indemnifying Party desires to appeal from an adverse
    judgment or determination, then the Indemnifying Party shall
    post and pay the cost of the security or bond to stay execution
    of the judgment or determination pending appeal. Upon the
    payment in full by the Indemnifying Party of all of such
    amounts, the




    

    17








 






    Indemnifying Party shall succeed to the rights of the
    Indemnified Party, to the extent such rights are not waived in
    settlement, against the third party who made such Third Party
    Claim.



 


		
	
    14.  
	
    Assignment




 



    This Agreement shall not be assignable by either Party without
    the prior written consent of the other Party, which consent is
    not to be unreasonably withheld; provided,
    however, that no such consent shall be required for
    assignment to (a) a lender for security purposes;
    (b) a successor in interest of all or substantially all of
    the assets or business of either Party to which this Agreement
    relates; or (c) in the case of Customer, any controlled
    Affiliate of Customer or to the Joint Venture or the Joint
    Venture’s parents and controlled Affiliates, in each case,
    if the assignee assumes, in writing, all of the obligations of
    such Party under this Agreement. Notwithstanding the foregoing,
    and except as noted in the last sentence of this Clause 14,
    no assignment by either Party of any of its rights, interests or
    obligations under this Agreement shall relieve such party of its
    obligations under this Agreement (specifically including,
    without limitation, the non-competition obligations set forth in
    Clause 19 hereof) unless the other Party expressly agrees
    otherwise in writing. Producer understands and agrees that
    Customer shall be relieved of all of its rights, interests,
    obligations and liabilities under this Agreement upon receipt of
    the non-refundable capacity reservation charge and assignment of
    this Agreement to the Joint Venture.



 


		
	
    15.  
	
    Confidentiality




 




    15.1  Obligation
    of Confidentiality



 



    Subject to Clause 15.2 (Permitted Disclosure), the
    Parties shall at all times during the continuance of this
    Agreement and for a period of three (3) years following its
    termination keep all Confidential Information confidential to
    the Party receiving it and shall not disclose such Confidential
    Information to any other Person, except that the provisions of
    this Clause 15.1 (Obligation of Confidentiality)
    shall not apply to:



 



    15.1.1 information which at the time of disclosure was in
    the public domain other than by breach of this Clause 15
    (Confidentiality);



 



    15.1.2 information acquired from a third party who, to the
    knowledge of the relevant Party, is not in breach of any
    obligation of confidentiality in disclosing it;



 



    15.1.3 information already known to the Party (as evidenced
    by written records at the date of the disclosure), provided that
    such information was not obtained directly or indirectly from
    the Party to which it relates;



 



    15.1.4 information disclosed by or with the prior written
    consent of the Party to which it relates or which such Party
    approved in writing for release to the recipient;



 



    15.1.5 information disclosed with the prior written consent
    of all the Parties;



 



    15.1.6 information disclosed to the extent required by any
    Applicable Law or by the requirements of a recognized stock
    exchange on which securities of the Party making disclosure or
    any of its Affiliates are, or are proposed to be, quoted or
    pursuant to an order of any court of competent jurisdiction
    provided the Party disclosing such information notifies the
    other Party of the required disclosure as soon as reasonably
    practicable after the Party required to disclose the information
    becomes aware of such requirement; or



 



    15.1.7 information disclosed in order to enable a
    determination to be made under Clause 21 (Disputes).



 




    15.2  Permitted
    Disclosure



 



    Any Party shall be entitled to disclose Confidential Information
    if such disclosure is made in good faith:



 



    15.2.1 to any Affiliate of such Party (which for purposes
    of this Clause 15 shall, in the case of Customer, include
    the Joint Venture and INEOS Group Limited);



 



    15.2.2 to any outside consultants or advisers, accountants
    or lawyers engaged by or on behalf of such Party and acting in
    that capacity;




    

    18








 






    15.2.3 to any bank or financial institution from which such
    Party is seeking or obtaining or has obtained finance or the
    advisers or lawyers to such bank or financial institution;



 



    15.2.4 to any insurer under a policy of insurance referred
    to in this Agreement or in a proposal for such insurance; or



 



    15.2.5 to officers, employees, agents or sub-contractors of
    such Party;



 



    provided that any disclosure pursuant to this Clause 15.2
    (Permitted Disclosure) is, in such Party’s
    reasonable judgment, necessary to enable such Party to perform
    or comply with, or to protect or enforce its rights under, this
    Agreement, or any other contract contemplated by this Agreement
    or to carry on its business.



 



    In addition, either Party may disclose the existence and terms
    and conditions of this Agreement to any potential investor in
    such Party provided that such investor has agreed in writing to
    hold such information confidential.



 




    15.3  Third
    Parties



 



    Each Party shall use commercially reasonable efforts to procure
    the observance of the restrictions in this Clause 15
    (Confidentiality) by any Person to whom it discloses
    information in accordance with Clause 15.2 (Permitted
    Disclosure) and shall make such Person aware of the
    requirements of this Clause 15 (Confidentiality).



 




    15.4  Damages
    Not an Adequate Remedy



 



    Without prejudice to any other rights or remedies which a Party
    may have, the Parties acknowledge and agree that damages may not
    be an adequate remedy for any breach of this Clause 15
    (Confidentiality) and that the remedies of injunction,
    specific performance and other equitable relief may be
    appropriate for any threatened or actual breach of any such
    provision.



 


		
	
    16.  
	
    Environmental
    Health & Safety




 



    16.1 The Parties acknowledge and agree that
    Producer remains solely responsible for all environmental,
    health and safety requirements and obligations regarding the
    use, handling, storage, transportation, recycling, processing,
    Release and disposal of all raw materials, Product (prior to the
    time title and risk of loss transfers to Customer in accordance
    with Clause 5.3 (Title and Title Transfer; Point of
    Delivery)), by-products, residuals, derivatives and wastes
    of any kind at the Texas City Styrene Plant.



 



    16.2 Customer acknowledges that Product may
    be, or become, considered a Hazardous Material under various
    applicable Laws and that it is familiar with any hazards of
    Product and its applications and the containers in which Product
    is shipped.



 



    16.3 Customer agrees to disseminate to third
    parties (including employees and customers), as required by
    applicable Law, Material Safety Data Sheets consistent with
    applicable Laws, including the Occupational Safety and Health
    Administration’s Hazard Communications Standard.



 


		
	
    17.  
	
    Other
    Matters




 



    Given that Customer has reserved the exclusive capacity of
    Producer’s Texas City Styrene Plant, Producer will not be
    able to fulfill its contractual commitments to existing styrene
    monomer customers (the “Customer Contracts”)
    with its own production of styrene monomer. Accordingly,
    Customer agrees that it will assume responsibility for
    fulfilling those commitments on a “going forward”
    basis. Customer shall be free to do so with styrene monomer
    produced at the Texas City Styrene Plant or at any of
    Customer’s other plants. Producer shall, as of the first
    day of the first Month commencing after the Effective Date,
    assign to Customer all such Customer Contracts (the
    “Assigned Contracts”) and shall provide
    Customer with all customer files and such other documents as are
    appropriate to enable Customer to fulfill its responsibilities
    under the Assigned Contracts; provided, however, that, to the
    extent that the assignment of all or any portion of any of the
    Customer Contracts requires the approval or consent of the other
    party thereto, such Customer Contract shall not be an
    “Assigned Contract” hereunder, and Producer shall not
    be required to assign such Customer Contract to Customer, if an
    attempted assignment without such approval or consent would
    constitute a breach or violation thereof, in which




    

    19








 






    event, Producer shall, on and after the Effective Date, use
    commercially reasonable efforts to do or cause to be done all
    such things required to (a) assure that the rights of
    Producer under such Customer Contracts shall be preserved for
    the benefit of Customer (including but not limited to causing
    Producer’s account representatives to assist in making
    introductions to appropriate individuals at the customers and
    permitting Customer to produce the styrene monomer to be
    delivered to the other parties under such Customer Contracts at
    Customer’s other plants) and (b) facilitate receipt of
    the consideration to be received by Producer in and under such
    Customer Contracts, which consideration shall be held for the
    benefit of, and shall be delivered to, Customer. Producer shall,
    on and after the Effective Date, use commercially reasonable
    efforts to do or cause to be done all such things required to
    assure that the rights of Producer under all Assigned Contracts
    shall be preserved for the benefit of Customer (including but
    not limited to causing Producer’s account representatives
    to assist in making introductions to appropriate individuals at
    the customers and permitting Customer to produce the styrene
    monomer to be delivered to the other parties under the Assigned
    Contracts at Customer’s other plants). With respect to any
    such Customer Contract as to which the necessary approval or
    consent for the assignment or transfer to Customer is obtained
    after the Effective Date, Producer shall transfer such Customer
    Contract to Customer within ten days following receipt of such
    approval or consent and, upon such transfer, such Customer
    Contract shall become an “Assigned Contract hereunder.








 



    Producer represents and warrants to Customer that: (a) a
    redacted version of each Assigned Contract has been made
    available to Customer with the only information redacted being
    the name of the other party thereto, the quantity of styrene
    monomer delivered thereunder and the length of such contract,
    (b) to Producer’s knowledge, no breach or default by
    any other party to any such Assigned Contract of any material
    provision thereof, nor any condition or event that, with notice
    or lapse of time or both, would constitute such a breach or
    default, has occurred and (c) Producer has performed the
    obligations required to be performed by it under all such
    Assigned Contracts, and no breach or default by Producer of any
    material provision thereof, nor any condition or event that,
    with notice or lapse of time or both, would constitute such a
    breach or default, has occurred.








 


		
	
    18.  
	
    For
    Greater Certainty




 




    18.1  No
    Ownership or Interest of Customer



 



    Other than the assignment of the Assigned Contracts, Customer is
    acquiring no ownership or other interest in any of the assets of
    Producer or Producer’s businesses (including, without
    limitation, Producer’s Texas City Styrene Plant, facilities
    or equipment). Producer shall retain all liabilities arising
    from ownership or operation of its Texas City Styrene Plant and
    styrene business, whether arising before or after execution of
    this Agreement, including but not limited to all environmental,
    personnel, benefit plan, product, regulatory or other
    liabilities associated with the operation, closure or
    dismantling any of the assets used in its styrene business
    together with all supplier contracts and accounts payable.



 




    18.2  Customer
    and Supplier Relationship



 



    The relationship between the Parties contemplated by this
    Agreement is solely that of customer and supplier. Nothing
    contained in this Agreement shall be construed to:



 



    18.2.1 give either Party the power to direct and control
    the day to day activities of the other;



 



    18.2.2 constitute the Parties as partners, joint venture
    partners, co-owners or otherwise as participants in a joint or
    common undertaking;



 



    18.2.3 constitute either Party as the agent of the
    other; or



 



    18.2.4 allow either Party to create or assume obligations
    on behalf of the other.



 




    18.3  Accounts
    Receivable and Inventory



 



    Producer shall retain all accounts receivable and Inventory in
    existence as of the Effective Date.




    

    20








 







    18.4  No
    Real Property Ownership



 



    Customer does not have, and by virtue of the execution of this
    Agreement and the performance of the transactions contemplated
    hereby, does not acquire, any ownership or leasehold rights in
    any real estate, fixtures, equipment or facilities at the Texas
    City Styrene Plant.



 




    18.5  Producer
    Purchase Contracts



 



    Except for the obligations under the Assigned Contracts,
    Producer will remain obligated under any purchase contracts that
    relate to the purchase of raw materials, services, utilities or
    other inputs required for the manufacture of styrene monomer at
    the Texas City Styrene Plant, and Customer acquires no interest,
    and has no liabilities or obligations, under any such contracts.



 




    18.6  Other



 



    Other than advising Producer as to the quantity of styrene
    monomer Customer desires, Customer shall have no involvement,
    inputs or rights with respect to Producer’s operations.
    More specifically, Customer personnel will not participate and
    will not have the right to participate in any discussions or
    decisions regarding environmental or other issues at the Texas
    City Styrene Plant, including, but not limited to, any shutdown,
    remediating, demolishing or decommissioning of the Texas City
    Styrene Plant.



 


		
	
    19.  
	
    Covenant
    Not To Compete




 



    Producer understands and agrees that the provisions of this
    Clause 19 constitute a fundamental portion of the
    consideration of Customer for entering into this Agreement, and
    further understands that Customer would not have been willing to
    enter into this Agreement in the absence of the provisions of
    this Clause 19. Accordingly, the Parties hereby acknowledge
    and agree that this Clause 19 is to be strictly enforced in
    accordance with its terms.



 



    Producer agrees that from and after the Effective Date and for a
    period of eight (8) years after termination or expiration
    of this Agreement for whatever reason and by whomever terminated
    (including, without limitation, any termination for breach or
    default and any termination for Extended Force Majeure),
    Producer and any subsidiary of Producer will:



 



    19.1 Not engage in the business of manufacturing,
    processing, selling, exchanging, distributing or otherwise
    transferring styrene monomer anywhere in the world; provided,
    however, that Producer may produce and sell styrene (a) to
    Customer pursuant to this Agreement, (b) to the other
    parties to the Customer Contracts through the first day of the
    first Month commencing after the Effective Date and (c) to
    the extent required to fulfill its obligations to Customer under
    Section 17; provided further that Producer shall be
    entitled to convert any ethylene, benzene or ethylbenzene on
    hand or in transit to the Texas City Styrene Plant as of the
    Effective Date (or for which Producer has committed to purchase
    within 30 days after the Effective Date) into styrene
    monomer and sell the Inventory. This covenant shall apply to
    (i) the manufacture of styrene monomer at the Texas City
    Styrene Plant or elsewhere; (ii) the construction of any
    new styrene monomer facility whether at Texas City or elsewhere;
    (iii) the conversion of any existing or acquired facility
    to the manufacture of styrene monomer; (iv) except as
    otherwise expressly permitted under Section 19.2, any
    transaction pursuant to which Producer sells, transfers or
    assigns to a third party any assets from the Texas City Styrene
    Plant that will be used by such third party in the manufacture,
    production, sale or distribution of styrene monomer; or
    (v) any Acquisition Transaction (as hereinafter defined).
    “Acquisition Transaction” shall mean the
    acquisition by Producer or any of its subsidiaries of any
    facility for the manufacture of the styrene monomer including,
    without limitation, (A) by asset purchase or asset
    exchange; (B) pursuant to a stock purchase or stock
    exchange; or (C) pursuant to any merger or consolidation
    with any Person in which the stockholders of Producer will hold
    a majority of the equity interests of the surviving corporation
    or other entity.



 



    19.2 Obtain from any third party that subsequently acquires
    from Producer a direct or indirect controlling interest in the
    Texas City Styrene Plant or any assets thereof a covenant not to
    engage in the business of the manufacture, processing, sale, or
    distribution of styrene monomer at the Texas City Styrene Plant
    or to remove the Texas City Styrene Plant assets for the purpose
    of using the Texas City Styrene Plant assets in the business




    

    21








 






    of the manufacture, processing, sale, or distribution of styrene
    monomer. This covenant shall apply to any transaction pursuant
    to which such third party sells, transfers or assigns to a third
    party any assets from the Texas City Styrene Plant that will be
    used by such third party in the manufacture, production, sale or
    distribution of styrene monomer. Except as otherwise provided
    herein, Producer may not sell, transfer, lease, assign or
    otherwise transfer the Texas City Styrene Plant or any portion
    thereof, whether directly or indirectly, to any third party that
    has not provided the covenant referred to above without the
    consent of Customer in its sole discretion; provided, however,
    that nothing contained in this Agreement will prohibit Producer
    from selling all or any portion of its Texas City Styrene Plant
    for scrap following a shut-down of such facility, as spare or
    replacement parts for an existing styrene monomer facility (but
    not, in any event, as parts used to expand the capacity of such
    existing styrene monomer facility) or for uses other than the
    production of styrene monomer.



 



    19.3 In the event that a court shall refuse to enforce the
    agreements contained in this Clause 19, either because of
    the scope of the geographical area specified herein or the
    duration of the restrictions, the parties hereto expressly
    confirm their intention that the geographical area covered
    hereby and the time period of the restrictions be deemed
    automatically reduced to the minimum extent necessary to permit
    enforcement.



 


		
	
    20.  
	
    Notices




 



    All notices and other communications to be delivered under this
    Agreement shall be deemed to have been received (i) if by
    personal delivery on the date of such delivery, (ii) if by
    certified, registered,
    next-day or
    overnight mail or delivery, on the date delivered, and
    (iii) if by facsimile, on the day on which such facsimile
    was received, in each case at the address listed below (or as
    may subsequently be designated by such Party by written notice
    delivered in accordance with this Clause 20):



 



    Producer: Sterling Chemicals, Inc.



 



    Address:

    333 Clay Street, Suite 3600

    Houston, Texas 77002

    Fax:
    (713) 654-9577

    Attention: General Counsel



 



    Customer: NOVA Chemicals Inc.



 



    Address:

    1550 Coraopolis Heights Rd.

    Moon Township, PA 16046

    Fax:

    Attention: Senior Vice President, General Counsel



 


		
	
    21.  
	
    Disputes




 




    21.1  Amicable
    Settlement



 



    In any case of any Dispute relating to or arising in connection
    with this Agreement, either Party may issue a notice of Dispute
    (a “Dispute Notice”) to the other Party setting
    out particulars of the Dispute. The Parties shall attempt to
    resolve the Dispute amicably within thirty (30) Business
    Days of the date of the Dispute Notice, by a meeting in person
    of senior executives of each party, each with the authority
    necessary to settle the Dispute, to be held at a place and time
    agreed by such senior executives.



 




    21.2  Arbitration



 



    21.2.1 In any case where a Dispute has not been resolved
    within the thirty (30) Business Day period referred to
    under Clause 21.1 (Amicable Settlement), the Dispute
    shall be referred to and finally resolved by arbitration at the
    written request of any Party under the Commercial Arbitration
    Rules of the American Arbitration Association (the “AAA
    Rules”), which Rules are deemed to be incorporated by
    reference into this Clause 21.2 (Arbitration).




    

    22








 






    21.2.2 Unless otherwise agreed between the Parties:



 



    (i) If a Dispute involves an amount in controversy of
    $10,000,000 or less, there shall be one (1) arbitrator, who
    shall be selected in the manner prescribed by the AAA Rules. If
    a Dispute involves an amount in controversy in excess of
    $10,000,000 or a request for preliminary injunction, there shall
    be three (3) arbitrators.



 



    (ii) For disputes involving three (3) arbitrators,



 



    (a) each Party shall appoint an arbitrator, and if one
    Party fails to appoint an arbitrator within fifteen
    (15) Business Days of receiving notice of the appointment
    of an arbitrator by the other Party, then that arbitrator shall
    be appointed by the AAA;



 



    (b) the third arbitrator, who shall act as chairman of the
    tribunal, shall be chosen by the two arbitrators appointed by or
    on behalf of the Parties. If he is not chosen and appointed
    within fifteen (15) Business Days of the date of
    appointment of the later of the two Party-appointed arbitrators
    to be appointed, he shall be appointed by the AAA; and



 



    (c) the arbitrators shall be and remain independent and
    impartial of each Party.



 



    (iii) the place of the arbitration shall be New York City,
    New York;



 



    (iv) the language to be used in the arbitration proceedings
    shall be English;



 



    (v) the costs of arbitration shall be apportioned by the
    arbitrator(s) in their award in such manner as the arbitrator(s)
    deem just and reasonable taking into account the circumstances
    of the Dispute, the conduct of the Parties during the
    arbitration proceeding and the result of the arbitration;



 



    (vi) any costs of arbitration that must be paid prior to
    the arbitrator(s)’ award shall be borne by the Parties
    equally, without prejudice to the final apportionment of such
    costs by the arbitrator(s);



 



    (vii) the arbitrator(s) shall render a binding decision in
    writing and, if applicable, award as to all Disputes for which
    it was appointed;



 



    (viii) the powers of the arbitrator(s) shall include the
    power to award declaratory judgments, specific performance and
    injunctive and other equitable relief; and



 



    (ix) the arbitrator(s) shall not have the power to modify
    or amend in any respect the provisions of this Agreement nor to
    award punitive or exemplary damages nor to award Consequential
    Loss except as expressly set forth in this Agreement.



 



    21.2.3 The award of the arbitrator(s) shall be final and
    binding upon the Parties, shall not be subject to any appeal or
    review, and judgment upon such award may be entered in any state
    or federal court sitting in the State of New York, or other
    court having jurisdiction thereof.



 




    21.3  Litigation;
    Exclusive Jurisdiction; Waiver of Jury Trial



 



    Notwithstanding anything herein to the contrary, a Party shall
    have the right to initiate litigation to toll any statute of
    limitations or to seek injunctive relief or other equitable
    remedy if, in such Party’s good faith judgment, such action
    is deemed necessary to avoid irreparable damage or to maintain
    the status quo pending arbitration. Subject to Clause 21.2
    (Arbitration), the Parties agree to submit to the
    exclusive jurisdiction of the courts the State of New York and
    any federal district court sitting therein. Each Party hereby
    irrevocably and unconditionally consents to the jurisdiction of
    the state courts of New York and any federal district court
    sitting therein, and each Party irrevocably waives any objection
    that it may have to the bringing of any action or proceeding in
    such courts. THE PARTIES HEREBY WAIVE THEIR RIGHT TO TRIAL BY
    JURY IN THE EVENT OF ANY DISPUTE INVOLVING THIS AGREEMENT OR THE
    TRANSACTIONS CONTEMPLATED HEREBY.




    

    23








 





		
	
    22.  
	
    Miscellaneous




 




    22.1  Survival
    of Rights, Duties and Obligations



 



    Notwithstanding anything to the contrary expressly or impliedly
    contained in this Agreement to the contrary,
    (a) termination of this Agreement for any cause or
    expiration of this Agreement shall not release a Party from any
    liability which at the time of termination or expiration has
    already accrued to the other Party or which thereafter may
    accrue in respect of any act or omission prior to such
    termination or expiration; and (b) the rights and
    obligations of the Parties under Clauses 1 (Definitions
    and Interpretation), 6.1 (Capacity Reservation
    Charge), 6.2 (Product Price), 7 (Payment and
    Invoicing), 10.2 (Exclusion of Consequential Loss),
    11 (Conditions), 16 (Environmental Health &
    Safety), 18.1 (No Ownership or Interest of Customer),
    19 (Covenant Not to Compete), 20 (Notices), 21
    (Disputes), 22 (Miscellaneous) and 23
    (Governing Law) shall survive such termination or
    expiration of this Agreement.



 




    22.2  Variation
    and Amendment



 



    No variation or amendment of this Agreement shall be effective
    unless in writing and signed by or on behalf of each Party.



 




    22.3  Waiver



 



    No waiver by either Party of one or more defaults by the other
    Party in the performance of any of the provisions of this
    Agreement shall operate or be construed as a waiver of any other
    or further default or defaults, whether of a like or different
    character.



 




    22.4  Partial
    Invalidity



 



    The invalidity or unenforceability of any particular provision
    of this Agreement shall not affect the other provisions hereof,
    and this Agreement shall be construed in all respects as if such
    invalid or unenforceable provision was omitted; provided,
    however, that should such invalidity or unenforceability
    materially affect the economic position of a Party under this
    Agreement, taken as a whole, then the Parties shall negotiate in
    good faith to amend this Agreement to place such Party in
    substantially the same position as it would have been had such
    provision been valid and enforceable.



 




    22.5  No
    Partnership



 



    Nothing in this Agreement shall create a partnership or a joint
    venture or establish the relationship of principal and agent or
    any other relationship of a similar nature between the Parties.
    Neither of the Parties shall have the right or authority to
    assume or create any obligation or responsibility, express or
    implied, on behalf of or in the name of the other Party, or to
    bind the other Party in any manner whatsoever.



 




    22.6  Entire
    Agreement



 



    This Agreement constitutes the entire agreement between the
    Parties with respect to the subject matter of this Agreement and
    supersedes and replaces any prior agreement between the Parties
    with respect thereto. There are no oral representations,
    stipulations, warranties, agreements or understandings with
    respect to the subject matter of this Agreement which are not
    fully expressed herein, and neither this Agreement nor its
    execution has been induced by any representation, stipulation,
    warranty, agreement or understanding of any kind other than
    those expressed in writing in this Agreement.




    

    24








 







    22.7  Counterparts



 



    This Agreement may be executed in any number of counterparts and
    this has the same effect as if the signatures on the
    counterparts were on a single copy of this Agreement.



 




    22.8  Costs



 



    Each Party shall bear all costs incurred by it in connection
    with the preparation, negotiation and entry into of this
    Agreement.



 




    22.9  Rights
    of Third Parties



 



    This Agreement is intended solely for the benefit of the Parties
    and their permitted assigns and shall not impart rights
    enforceable by any other Person, except as expressly provided in
    this Agreement.



 


		
	
    23.  
	
    Governing
    Law




 



    This Agreement shall be interpreted and the rights, obligations
    and liabilities of the Parties determined in accordance with the
    laws of the State of New York without regard to its conflict of
    laws principles.



 




    [Signatures
    on Next Page.]




    

    25








 






    In Witness Whereof, this Agreement for the Exclusive Supply of
    Styrene has been executed as of the date first written above.



 



    PRODUCER:



 



    Sterling Chemicals, Inc.



 


			
	 	    By: 
	
    /s/  Richard
    K. Crump









    Name: Richard K. Crump




    Its: President and CEO



 



    CUSTOMER:



 



    NOVA Chemicals Inc.



 


			
	 	    By: 
	
    /s/  Jeffrey
    M. Lipton









    Name: Jeffrey M. Lipton




    Its: President and CEO








 


			
	 	    By: 
	
    /s/  J.
    Alan Crittenden









    Name: J. Alan Crittenden




    Its: Litigation, STYRENIX and Corporate




    

    26








 







    Schedule A



 




    Styrene
    Specifications



 


	 	 	 	 	 
	
 
	
 
	
 
	
 
	
    Astm Method

    

	

    Characteristic


	
 
	
    Specification
	
 
	
    Number

	 

	

    Appearance


	
 
	
    Clear & Free
	
 
	
    602.282(1)

	

    Color


	
 
	
    15 max
	
 
	
    D5386

	

    Polymer, ppmw


	
 
	
    10 max
	
 
	
    D2121-A

	

    Assay, wt%


	
 
	
    99.85 min
	
 
	
    D5135

	

    Inhibitor (TBC), ppmw


	
 
	
    10 – 15(2)
	
 
	
    D4590

	

    Aldehydes (as benzaldehyde), ppmw


	
 
	
    200 max(3)
	
 
	
    D2119

	

    Peroxides, ppmw


	
 
	
    100 max(3)
	
 
	
    D2340

	

    Sulfur, ppmw


	
 
	
    5 max(3)
	
 
	
    D3961

	

    Chlorides, ppm


	
 
	
    10 max
	
 
	
    D5808

	

    Ethylbenzene, wt%


	
 
	
    0.015 max
	
 
	
    D5135

	

    Benzene, ppmw


	
 
	
    1.0 max(3)
	
 
	
    602.062(1)









 





 




			
	
    (1) 		
    Producer method
	 
	
    (2) 		
    or as specified
	 
	
    (3) 		
    guaranteed analysis




    

    27