Common use of ADR and Binding Arbitration Procedures Clause in Contracts

ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented (with references to “Parties” meaning the Parties involved in the Dispute): (a) Any Party may at any time invoke the dispute resolution procedures set forth in this Appendix B as to any Dispute by providing written notice of such action to the other Parties. The disputing Parties within five Business Days after such notice shall schedule a meeting between the Parties to be held in Toledo, Ohio. The meeting shall occur within ten (10) Business Days after notice of the meeting is delivered to the Parties. The meeting shall be attended by representatives of each Party having decision-making authority regarding the Dispute as well as the dispute resolution process. The meeting shall be attended by senior management level personnel of each of the Parties, which persons have not previously been directly engaged in asserting or responding to the Dispute. Such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute, which negotiations may entail the involvement of and meetings attended by additional senior management level personnel senior to such persons. If such senior management level personnel shall not have negotiated a resolution to the dispute within 60 days of the initial notice of such Dispute, then a meeting attended by either the Chief Executive Officer or a senior executive officer designated by the Chief Executive Officer with full decision-making authority with respect to the Dispute and the dispute resolution process, of each ultimate parent company of each of the Parties shall occur in Philadelphia, Pennsylvania and such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute before these procedures may be deemed to have been exhausted. If such persons succeed in negotiating a resolution of the Dispute, one or more Parties shall be directed (in as comprehensive detail as reasonably practicable) to take the actions necessary to carry out such resolution. Each Party shall have a commercially reasonable time in which to take such actions, and such period shall automatically be extended if such Party has in good faith and diligently commenced and continued with its actions (a “Cure Period”). (b) As part of the process set forth in subsection (a), or if following the Cure Period, a Party believes in good faith that a Dispute still exists, the representatives of the Parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the “Interim Decision Date”) that is the earliest to occur of the following events: (i) an agreement shall be reached by the Parties resolving the Dispute; (ii) one of the Parties shall determine and notify the other Parties in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefore shall occur without the Parties having resolved the Dispute; (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the Parties having resolved the Dispute or (v) 90 days after the date of the original notice. (c) If, as of the Interim Decision Date, the Parties have not succeeded in negotiating a resolution of the Dispute pursuant to subsection (b), the Parties shall proceed under subsections (d), (e) and (f). (d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any Party involved in the Dispute (the “Disputing Party”). The arbitration shall be subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix B. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in Washington, DC. The Arbitrators (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the procedures established for the arbitration. During the pendency of the Dispute, each Party shall make available to the Arbitrators and the other Parties all books, records and other information within its possession and control requested by the other Parties or the Arbitrators subject to the confidentiality provisions contained herein. Recognizing the express desire of the Parties for an expeditious means of dispute resolution, the Arbitrators may limit the scope of discovery between the Parties as may be reasonable under the circumstances. In deciding the substance of the Parties’ claims, the laws of the State of Ohio shall govern the construction, interpretation and effect of this Agreement, without giving effect to any conflicts of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each Party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the Parties, the arbitration hearing shall be conducted on consecutive days. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrators and the Parties. (e) The Disputing Party shall notify the American Arbitration Association (“AAA”) and the other Parties in writing describing in reasonable detail the nature of the Dispute (the “Dispute Notice”). Each Party to the dispute shall select one arbitrator (the “Selected Arbitrators”) within fifteen (15) days of the date of the Dispute Notice from the members of a national panel of arbitrators of the AAA. The Selected Arbitrators shall then jointly select a third arbitrator (together with the Selected Arbitrators, the “Arbitrators”) from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources, and such Arbitrator shall be experienced in commercial arbitration and the operation and management of commodity chemical businesses and industrial gases. In the event that the Selected Arbitrators are unable to agree on the selection of the third Arbitrator, the AAA shall select the third Arbitrator, using the criteria set forth in this Appendix B, within thirty (30) days of the date of the Dispute Notice. In the event that any Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The vote of two of the three Arbitrators shall be required for any decision under this Appendix B. During the pendency of the Dispute (i) all costs and expenses incurred by a Party in connection with the Dispute that are required to be paid shall be paid by the Party that incurs such cost and (ii) each Party shall pay an equal share of the costs and expenses of the Arbitrators; provided, however, that all costs and expenses (including the Arbitrators’ and attorneys’ fees and expenses) of the prevailing Party will be borne by the non-prevailing Party and the non-prevailing Party shall reimburse the prevailing Party for any costs it incurred during the pendency of the Dispute, provided that the award of the Arbitrators specifies (and the Arbitrators are hereby instructed and authorized to so specify if in their determination such specification is feasible) that a Party has prevailed with respect to a preponderance of the Disputes determined by the Arbitrators. If there is no specified prevailing Party, the Arbitrators shall have the authority and discretion to assess the costs and expenses of the arbitration proceeding against all of the Parties as the Arbitrators deem appropriate although the Arbitrators shall not be required to do so. (f) The Arbitrators shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms, including the remedies provided in this Agreement. Without limiting the generality of the previous sentence, the Arbitrators shall have the authority to issue injunctive relief; however, the Arbitrators shall not have any power or authority to (i) award consequential, special, or indirect damages or (ii) amend this Agreement. The Arbitrators shall render the arbitration award, in writing, within twenty (20) days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrators award monetary damages in favor of either Party, the Arbitrators must certify in the award that no consequential, special or indirect damages have been awarded. If the Arbitrator’s decision results in a monetary award, the interest on such award shall accrue on the award at the Delinquency Rate, compounded quarterly, until such amount, together with all accrued but unpaid interest thereon, are paid in full. The arbitration award shall be final and binding on the Parties, and judgment thereon may be entered in any court of competent jurisdiction and may not be appealed, except to the extent permitted by the Federal Arbitration Act. (g) If the issue of whether a breach of this Agreement or whether one of the Parties was entitled to exercise remedial rights is in Dispute, the non-prevailing Party shall have a commercially reasonable period of time to cure the default or circumstance before the prevailing Party shall be entitled to exercise such remedial rights; provided, however, that interest on any past due invoiced amounts will continue to accrue during such cure period. The Arbitrator shall include the time in which the non-prevailing Party must complete such cure in its award.

ADR and Binding Arbitration Procedures. If a Dispute arises, the --------------------------------------- following procedures shall be implemented (with references to “"Parties” " meaning the Parties Partners involved in the Dispute):Dispute and the Operator, if joined in the proceeding in accordance with Section 1): --------- (a) Any Party may at any time invoke the dispute resolution procedures set forth in this Appendix Exhibit B as to any Dispute by providing written notice of such action to the other Parties. The disputing Parties within five Business Days after such notice shall schedule a meeting between the Parties to be held in ToledoHouston, OhioTexas. The meeting shall occur within ten (10) 10 Business Days after notice of the meeting is delivered to the Parties. The meeting shall be attended by representatives of each Party having decision-making authority regarding the Dispute as well as the dispute resolution process. The meeting shall also be attended by senior upper management level personnel of each of the Parties, which persons have not previously been directly engaged in asserting or responding to the Disputedispute. Such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the Disputedispute, which negotiations may entail the involvement of and meetings attended by additional senior upper management level personnel senior to such persons. If such senior upper management level personnel shall not have negotiated a resolution to the dispute within 60 45 days of the initial notice of such Disputedispute, then a meeting attended by either the Chief Executive Officer or a senior executive officer designated by member of the Chief Executive Officer Management Board of Directors with full decision-making authority with respect to the Dispute and the dispute resolution process, of each ultimate parent company of each of the disputing Parties shall occur in PhiladelphiaNew York, Pennsylvania New York and such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute dispute before these procedures may be deemed to have been exhausted. If such persons succeed in negotiating a resolution of the Disputedispute, one or more of the disputing Parties shall be directed (in as comprehensive detail as reasonably practicable) to take the actions necessary to carry out such resolution. Each Party shall have a commercially reasonable time in which to take such actions, and such period shall automatically be extended if such Party party has in good faith and diligently commenced and continued with its actions (a “"Cure Period”").. ----------- (b) As part of the process set forth in If a dispute is not resolved pursuant to subsection (a), or or, if -------------- following the Cure Period, a Party believes in good faith that a Dispute dispute still exists, the representatives of the Parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the “"Interim Decision Date”") that is --------------------- the earliest to occur of the following events: (i) an agreement shall be reached by the Parties resolving the Dispute; (ii) one of the Parties shall determine and notify the other Parties in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefore therefor shall occur without the Parties having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the Parties having resolved the Dispute or (v) 90 days after the date of the original noticeDispute. (c) If, as of the Interim Decision Date, the Parties have not succeeded in negotiating a resolution of the Dispute pursuant to subsection (b), -------------- the Parties shall proceed under subsections (d), (e) and (f).. --------------- --- --- (d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any Party involved in the Dispute (the “"Disputing Party”"). The arbitration shall be --------------- subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix Exhibit B. The arbitration shall be conducted in accordance with --------- the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in WashingtonHouston, DCTexas. The Arbitrators (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the procedures established for purpose of the arbitration. During the pendency of the Dispute, each Party shall make available to the Arbitrators Arbitrator and the other Parties all books, records and other information within its possession and control requested by the other Parties or the Arbitrators subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the Parties for an expeditious means of dispute resolution, the Arbitrators may limit the scope of discovery between the Parties as may be reasonable under the circumstances. In deciding the substance of the Parties’ ' claims, the laws of the State of Ohio Delaware shall govern the construction, interpretation and effect of this Agreement, Agreement (including this Exhibit B) without giving effect to any conflicts --------- conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each Party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the Parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrators shall have the right and authority to issue monetary sanctions against any of the Parties if, upon a showing of good cause, that Party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrators and the Parties. (e) The Disputing Party shall notify the American Arbitration Association (“"AAA”") and the other Parties in writing describing in reasonable --- detail the nature of the Dispute (the “"Dispute Notice”"). Each Party to the -------------- dispute shall select one arbitrator (the “"Selected Arbitrators”") within fifteen (15) 15 days -------------------- of the date of the Dispute Notice by all of the Parties from the members of a national panel of arbitrators of the AAA. The Selected Arbitrators shall then jointly select a third arbitrator (together with the Selected Arbitrators, the “"Arbitrators”") from the members of a panel of arbitrators of the AAA or, if the ----------- AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources, and such Arbitrator shall be experienced in commercial arbitration and arbitration. With respect to any dispute under Section 11.3 of the operation and management Partnership ------------ Agreement, the Selected Arbitrators shall meet the criteria set forth in Section ------- 11.3 (f) of commodity chemical businesses and industrial gasesthe Partnership Agreement. In the event that the Selected ------- Arbitrators are unable to agree on the selection of the third Arbitrator, the AAA shall select the third Arbitrator, using the criteria set forth in this Appendix Exhibit B, within thirty (30) 30 days of the date of the Dispute Notice. In the event that --------- any Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The vote of two of the three Arbitrators shall be required for any decision under this Appendix Exhibit B. During the pendency of the Dispute (i) all costs and expenses incurred by a Party in connection with the Dispute that are required to be paid shall be paid by the Party that incurs such cost and (ii) each Party shall pay an equal share of the costs and expenses of the Arbitrators; provided, however, that all costs and expenses (including the Arbitrators’ and attorneys’ fees and expenses) of the prevailing Party will be borne by the non-prevailing Party and the non-prevailing Party shall reimburse the prevailing Party for any costs it incurred during the pendency of the Dispute, provided that the award of the Arbitrators specifies (and the Arbitrators are hereby instructed and authorized to so specify if in their determination such specification is feasible) that a Party has prevailed with respect to a preponderance of the Disputes determined by the Arbitrators. If there is no specified prevailing Party, the The --------- Arbitrators shall have the authority and discretion to assess the costs and expenses of the arbitration proceeding against all of (including the Parties as the Arbitrators deem appropriate although the Arbitrators shall not be required to do so. (f) The Arbitrators shall decide all Disputes and all substantive and procedural issues related theretoarbitrators', and shall enforce this Agreement in accordance with its terms, including the remedies provided in this Agreement. Without limiting the generality of the previous sentence, the Arbitrators shall have the authority to issue injunctive relief; however, the Arbitrators shall not have attorneys' fees and expenses) against any power or authority to (i) award consequential, special, or indirect damages or (ii) amend this Agreement. The Arbitrators shall render the arbitration award, in writing, within twenty (20) days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrators award monetary damages in favor of either Party, the Arbitrators must certify in the award that no consequential, special or indirect damages have been awarded. If the Arbitrator’s decision results in a monetary award, the interest on such award shall accrue on the award at the Delinquency Rate, compounded quarterly, until such amount, together with all accrued but unpaid interest thereon, are paid in full. The arbitration award shall be final and binding on the Parties, and judgment thereon may be entered in any court of competent jurisdiction and may not be appealed, except to the extent permitted by the Federal Arbitration Act. (g) If the issue of whether a breach of this Agreement or whether one of the Parties was entitled to exercise remedial rights is in Dispute, the non-prevailing Party shall have a commercially reasonable period of time to cure the default or circumstance before the prevailing Party shall be entitled to exercise such remedial rights; provided, however, that interest on any past due invoiced amounts will continue to accrue during such cure period. The Arbitrator shall include the time in which the non-prevailing Party must complete such cure in its award.