Buyer Confidential
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
1
PURCHASE, AND HSC IS REQUIRED TO SUPPLY, UNDER THIS AGREEMENT AT THE TIMES AND
IN THE AMOUNTS SHOWN ON EXHIBIT B.
3.
PRICE AND QUANTITY; PURCHASE ORDERS.
(A)
PRICE AND
QUANTITY.
FOR THE TIME PERIOD JANUARY 1,
2010 THROUGH DECEMBER 31, 2019, HSC AGREES TO SELL AND BUYER AGREES TO PURCHASE
PRODUCTS PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE PRICE AND
QUANTITY OF PRODUCTS TO BE PURCHASED BY BUYER IS AS SET FORTH IN EXHIBIT B. AS
SET FORTH IN EXHIBIT B, BUYER RETAINS THE DISCRETION TO SELECT AMONG THE
PRODUCTS LISTED TO FULFILL ITS ANNUAL QUANTITY COMMITMENTS. UNIT PRICES FOR
SHIPMENT OF PRODUCT ARE FCA HEMLOCK, MICHIGAN (INCOTERMS 2000). SUBJECT ONLY TO
THE PRICE ADJUSTMENTS SET FORTH IN SECTION 4, THESE PRICES ARE FIXED FOR THE
TERM OF THIS AGREEMENT. BUYER MAY REQUIRE AN AUDIT OF THE HSC'S SUPPORTING
DOCUMENTATION VALIDATING THE PRICE ADJUSTMENTS PERMITTED UNDER EXHIBIT B. ANY
SUCH AUDIT SHALL BE CONDUCTED BY A QUALIFIED INDEPENDENT THIRD PARTY WHO SHALL
BE GRANTED ACCESS, UNDER A CONFIDENTIALITY AGREEMENT, TO ALL RELEVANT
DOCUMENTATION IT REASONABLY REQUESTS FOR SUCH VERIFICATION. ANY SUCH AUDIT SHALL
BE PAID FOR BY BUYER.
(B)
PURCHASE ORDERS. THE PARTIES ACKNOWLEDGE
THEIR STANDARD PRACTICE IN WHICH BUYER, IN CONNECTION WITH FULFILLING ITS
PURCHASE COMMITMENT FOR ANY GIVEN YEAR, PERIODICALLY ISSUES PURCHASE ORDERS, AND
OCCASIONALLY CHANGE ORDERS THERETO, FOR PRODUCTS REQUESTING SPECIFIED
QUANTITIES, DELIVERY DATES AND DELIVERY LOCATIONS. THE PARTIES AGREE THAT THE
PROVISIONS OF THIS SECTION 3(B) CREATE NO LEGAL COMMITMENT OR OBLIGATIONS WITH
RESPECT TO PURCHASE ORDERS OR OTHERWISE.
4.
PRICE ADJUSTMENTS. HSC MAY ADJUST
PRICES ON AN ANNUAL BASIS TO ACCOUNT FOR CHANGES IN HSC'S COST STRUCTURE
RELATIVE TO THE MANUFACTURE OF THE PRODUCTS, INCLUDING CHANGES RELATING TO
ELECTRICITY, RAW MATERIALS AND THE EMPLOYMENT COST INDEX. ON JANUARY 1 OF EACH
YEAR BEGINNING WITH JANUARY 1, 2010, PRICES MAY BE INCREASED PURSUANT TO THE
MECHANISM SET FORTH IN EXHIBIT C.
5.
TAKE OR PAY AGREEMENT. THIS AGREEMENT
IS A "TAKE OR PAY AGREEMENT" SUCH THAT BUYER IS ABSOLUTELY AND IRREVOCABLY
REQUIRED TO ACCEPT AND PAY FOR THE CONTRACTED VOLUME OF PRODUCTS PER YEAR OVER A
10-YEAR PERIOD AT THE PRICES SET FORTH IN EXHIBIT B, SUBJECT TO THE ADJUSTMENTS
DESCRIBED IN SECTION 4 ABOVE. IN THE EVENT THAT BUYER FAILS TO ORDER AND TAKE
DELIVERY OF ITS CONTRACTED VOLUME IN A GIVEN YEAR, HSC SHALL INVOICE BUYER FOR
THE DIFFERENTIAL AT FULL CONTRACT PRICE AND BUYER WILL PAY THE SAME WITHIN 30
DAYS OF INVOICE DATE. BUYER SPECIFICALLY ACKNOWLEDGES AND ACCEPTS THAT IT WILL
BE LIABLE FOR THE FULL PURCHASE PRICE OF VOLUME DIFFERENTIAL BETWEEN THE
QUANTITY ORDERED AND THE CONTRACTED VOLUME.
6.
PAYMENT. PAYMENT TERMS ARE NET 30 DAYS
FROM THE DATE OF THE INVOICE. FINANCE CHARGES OF ***% PER MONTH (***% PER ANNUM)
MAY BE ASSESSED ON PAYMENT PAST DUE FROM THE PAYMENT DUE DATE TO THE DATE
PAYMENT IS RECEIVED. FAILURE