Exhibit 10.21
SHELL EPOXY RESINS NEDERLAND B.V.
and
SHELL NEDERLAND RAFFINADERIJ B.V.
--------------------------------------
FIRST AMENDED AND RESTATED
PERNIS
SITE SERVICES, UTILITIES,
MATERIALS AND FACILITIES
AGREEMENT
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PERNIS SNR FORWARD SUMF (RESINS)
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS.......................................................1
ARTICLE 2: INTERPRETATIONS...................................................8
ARTICLE 3: OBJECT AND SCOPE.................................................10
ARTICLE 4: CATEGORIES OF SUMF...............................................11
ARTICLE 5: SUMF CHARGES.....................................................11
ARTICLE 6: SUMF CHARGES WITH REFERENCE TO COST..............................11
ARTICLE 7: PAYMENT TERMS....................................................14
ARTICLE 8: ANNUAL FORECAST; ANNUAL PLAN AND BUDGET; AND CURTAILMENT.........16
ARTICLE 9: LIABILITY AND INDEMNITY..........................................17
ARTICLE 10: TERM AND TERMINATION; REDUCTION OF CAPACITY
RESERVATION......................................................21
ARTICLE 11: INTELLECTUAL PROPERTY RIGHTS.....................................28
ARTICLE 12: CONFIDENTIALITY..................................................28
ARTICLE 13: ADDITIONAL SUMF AND CAPITAL IMPROVEMENTS
TO SUMF ASSETS...................................................30
ARTICLE 14: DAMAGE TO SUMF ASSETS............................................31
ARTICLE 15: METERING OF SUPPLY, CONSUMPTION AND DELIVERY.....................31
ARTICLE 16: JOINT OPERATING COMMITTEE........................................32
ARTICLE 17: MISCELLANEOUS....................................................32
ARTICLE 18: FORCE MAJEURE....................................................33
ARTICLE 19: DISPUTE RESOLUTION...............................................34
ARTICLE 20: FURTHER ASSURANCE................................................35
ARTICLE 21: COSTS AND EXPENSES...............................................35
ARTICLE 22: ASSIGNMENT AND DELEGATION........................................35
ARTICLE 23: SEVERABILITY.....................................................36
ARTICLE 24: NO AGENCY OR PARTNERSHIP.........................................36
ARTICLE 25: REMEDIES AND WAIVER..............................................37
ARTICLE 26: ENTIRE AGREEMENT AND VARIATION...................................37
ARTICLE 27: NOTICES..........................................................37
ARTICLE 28: GOVERNING LAW....................................................38
ARTICLE 29: LANGUAGE.........................................................39
ARTICLE 30: COUNTERPARTS.....................................................39
SCHEDULE 1: INFORMATION......................................................
SCHEDULE 2: ITEMS OF SUMF....................................................
SCHEDULE 3: SUMMARY OF SUPPLIER'S ACCOUNTING PRACTICES.......................
SCHEDULE 4: CURTAILMENT PROCEDURES...........................................
SCHEDULE 5: JOINT OPERATING COMMITTEE AND STEERING
COMMITTEE........................................................
SCHEDULE 6: ALLOCATION KEYS..................................................
SCHEDULE 7: BUDGET...........................................................
PERNIS SNR FORWARD SUMF (RESINS)
FIRST AMENDED AND RESTATED PERNIS SITE SERVICES, UTILITIES,
MATERIALS AND FACILITIES AGREEMENT
THIS FIRST AMENDED AND RESTATED AGREEMENT made the 1st day of November, 2000
BETWEEN:
1. SHELL EPOXY RESINS NEDERLAND B.V., a company incorporated under the laws of
The Netherlands with its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the "Purchaser"); and
2. SHELL NEDERLAND RAFFINADERIJ B.V., a company incorporated under the laws
of The Netherlands with its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the "Supplier").
WHEREAS
(A) The Supplier or Affiliates of the Supplier operate the Site;
(B) The Purchaser owns the Plant;
(C) The Parties have entered into a Site Services, Utilities, Materials and
Facilities Agreement (the "SUMF Agreement") dated 29/th/ October, 1999 for
the supply and purchase of certain SUMF Items in connection with such
operations and assets;
(D) Shell Petroleum N.V., an Affiliate of the Supplier, has on September 11,
2000 entered into a Sale Agreement with Shell Epoxy Resins, Inc. ("SER"),
pursuant to which it is selling to SER its interest in the shares of Shell
Epoxy Resins Holdings B.V., the parent company of the Purchaser; and
(E) In connection with the closing of such sale transaction, the Parties want
to amend and restate the SUMF Agreement as set forth below:
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1: DEFINITIONS
In this Agreement and the Schedules hereto:
"AFFILIATE" means in relation to the Supplier, N.V. Koninklijke
Nederlandsche Petroleum Maatschappij, The "Shell" Transport and Trading
Company, p.l.c. (together the "Parent Companies") or any entity other than
the Parties which is directly or indirectly affiliated with either or both
of the Parent Companies.
In relation to the Purchaser, "Affiliate" means Shell Epoxy Resins Holdings
B.V. and any entity other than the Parties which is directly or indirectly
affiliated with that company.
In relation to any Third Party successors of the Parties, "Affiliate" means
any entity which is directly or indirectly affiliated with that Third Party
successor.
For the purposes of this definition, a particular entity is:
(i) directly affiliated with another entity or entities if the latter
hold(s) or otherwise control(s) by proxy or agreement shares or other
ownership interests carrying more than fifty percent (50%) of the
votes exercisable at a general shareholders meeting (or its
equivalent) of the entity in question; and
2 PERNIS SNR FORWARD SUMF (RESINS)
(ii) indirectly affiliated with an entity or entities (the "parent or
parents") if a series of entities can be specified, beginning with
their parent or parents and ending with the particular entity, so
related that each entity or entities in the series, except the parent
or parents, is directly affiliated with one or more of the entities
earlier in the series;
Notwithstanding the foregoing, none of the portfolio companies of Apollo
Management IV, L.P. or its affiliates other than Shell Epoxy Resins, Inc.
and its subsidiaries shall be deemed to be an Affiliate of Shell Epoxy
Resins, Inc. or any of its subsidiaries.
"AGREEMENT" means this First Amended and Restated Pernis Site Services,
Utilities, Materials and Facilities Agreement, including its Schedules and
attachments, and any amendments hereto to which the Parties may consent
from time to time;
"ANNUAL PLAN AND BUDGET" means the annual plan and budget approved under
ARTICLE 8. The Annual Plan and Budget for the First Operating Year is the
relevant part of the Annual Plan and Budget set out in SCHEDULE 2.
"BANKRUPTCY EVENT" means, in relation to any Party, (i) the making of a
general assignment for the benefit of creditors by such Party; or (ii) the
entering into of any arrangement or composition with creditors (other than
for the purposes of a solvent reconstruction or amalgamation); or (iii) the
institution by such Party of proceedings (a) seeking to adjudicate such
Party as bankrupt or insolvent or seeking protection or relief from
creditors, or (b) seeking liquidation, winding up, or rearrangement,
reorganisation or adjustment of such Party or its debts (other than for
purposes of a solvent reconstruction or amalgamation), or (c) seeking the
entry of an order for the appointment of a receiver, trustee or other
similar official for such Party or for all or a substantial part of such
Party's assets; or (iv) the institution of any proceeding of the type
described in (iii) above against such Party;
"BUSINESS DAY" means any day of the week other than Saturday, Sunday or a
public holiday at the location of the Plant;
"COMMERCIALLY REASONABLE" when used in the context of efforts to be taken
means efforts which would ordinarily be taken by a business person in the
applicable industry were he in the position under this Agreement of being
the supplier of SUMF Items or the owner of the Plant, whichever shall be
the relevant case. Such efforts shall only be taken at the sole cost and
request of the Party entitled to request or require "commercially
reasonable" efforts ("the Requiring Party") provided however, that the
Party who undertakes such efforts shall not be (i) obligated to interfere
with its own business activities or plans, nor (ii) required to employ
additional employees in order to accomplish such matters, nor (iii)
required to expend any of its own funds to accomplish such request without
the right to reimbursement from the Requiring Party;
"CONFIDENTIAL RECORD" means, without limitation, any publications, printed
matter, manuals, reports, letters, telexes, drawings, computer programs,
photographs, films,
3 PERNIS SNR FORWARD SUMF (RESINS)
video, tape, diskette, CD-ROM and other information carriers or media
conveying information and any other material containing confidential
information;
"DEFAULT RATE" means a percentage equal to the base lending rate of the
bank specified in Schedule 1 plus three percent (3%) p.a.;
"DELIVERY POINT(S)" means the location(s) specified in the Schedules to
which each SUMF Item will be delivered and at which title and risk passes
from the Supplier to the Purchaser for each SUMF Item;
"DIRECT SITE COSTS" means the direct fixed costs (without ▇▇▇▇-up or profit
factor, except in accordance with ARTICLE 6.1(F)) incurred at the Site by
the Supplier in providing SUMF but which do not vary with consumption,
usage or production. Fixed costs include personnel costs (which include,
but are not limited to, wages, associated benefits, applicable taxes and
allocated pension costs) for the personnel directly involved in the
provision of SUMF Items and the costs of any SUMF Items procured by the
Supplier for the Purchaser from a Third Party in accordance with this
Agreement.
If costs, including personnel costs, are incurred at the Site partly in
connection with providing SUMF and partly in connection with other
activities, an allocation of such costs shall be included in Direct Site
Costs.
For the avoidance of doubt, Direct Site Costs shall not include charges for
the depreciation or amortisation of SUMF Assets or any other assets or any
other costs that the Supplier or any of its Affiliates is required to bear
under the Transaction Documents (other than the Pernis Agreements) or the
IPTLA. Costs that the Supplier or any of its Affiliates is required to
bear under this Agreement or any other Pernis Agreement shall be borne in
accordance with the terms hereof and thereof. The terms of this definition
shall not be deemed to modify any provision of any Transaction Document
other than this Agreement, including any express payment or reimbursement
obligation of the Purchaser to Supplier under any Transaction Document
other than this Agreement;
"DISPUTE" means any dispute or difference which arises between the Parties
in connection with or arising out of this Agreement (including, without
limitation, any dispute as to the existence, termination or validity of
this Agreement or any provision of it);
"EFFECTIVE DATE" means November 1, 2000;
"ENVIRONMENTAL AGREEMENT" means the Non-US Environmental Agreement dated as
of the Effective Date by and between Shell Petroleum N.V. and SER;
"ENVIRONMENTAL LAW" means any applicable law relating to Environmental
Matters;
"ENVIRONMENTAL LOSS OR DAMAGE" means any Loss or Damage relating to the
infringement on or after the Effective Date of an Environmental Law and/or
any other
4 PERNIS SNR FORWARD SUMF (RESINS)
Environmental Matter being the basis for any claim or possible claim; (i)
by governmental authorities for enforcement, fines, cleanup, removal,
response, remediation, or other actions or damages pursuant to any
applicable Environmental Law; or (ii) by any third person, including the
Parties, seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief or otherwise giving rise to Loss or
Damage;
"ENVIRONMENTAL MATTERS" means; (i) the protection of the environment,
worker health and safety and/or the public welfare from actual or potential
exposure (or the effects of exposure) to any actual or potential release,
discharge, disposal or emission (whether past or present) of any hazardous
substance or waste; (ii) the manufacture, processing, distribution, use,
treatment, labeling, storage, disposal, transport or handling of any
hazardous substance or waste, or (iii) soil or groundwater contamination,
air pollution or surface water pollution or other actual or threatened
impact on the environment, worker health and safety or public welfare;
"ENVIRONMENTAL PROTECTION SYSTEM" means any environmental protection system
used by Supplier in connection with the provision of the SUMF Items,
including without limitation, biotreater, waste water treatment plant, and
all pipes, drains, channels, conduits, sumps and other items, plant or
machinery connected with or associated with such system;
"FINANCIAL REPORTING ACCOUNTS" means those books and records maintained by
the Supplier for financial reporting to the Supplier's parent company(ies)
or corporate headquarters, which shall be maintained in accordance with
generally accepted accounting principles and which shall be applied on a
consistent basis;
"FIRM CAPACITY RESERVATION" means the maximum aggregate volume of a SUMF
Item to be supplied to the Resins and Versatics businesses, both owned by
Purchaser as of the Effective Date, under this Agreement as specified in
SCHEDULE 2;
"FIRST OPERATING YEAR" means the period from the Effective Date until the
following 31st December;
"FORCE MAJEURE" has the meaning given to this term in ARTICLE 18.4;
"GROSS NEGLIGENCE" means a failure to perform a duty of care in reckless
disregard of the reasonably foreseeable consequences (as distinguished from
a mere failure to exercise ordinary care) which affects the life or
property of another;
"HSE" means health, safety and/or environment;
"IPTLA" or "INTELLECTUAL PROPERTY TRANSFER AND LICENCE AGREEMENT" means the
Agreement dated as of the Effective Date between Shell International
Research Maatschappij B.V. and Shell Epoxy Resins Research B.V. relating to
intellectual property transfer and licensing;
5 PERNIS SNR FORWARD SUMF (RESINS)
"INTEREST RATE" means a percentage equal to the base lending rate of the
bank specified in Schedule 1 plus one point five percent (1.5%) p.a.;
"INVOICE DISPUTE" means a Dispute relating to an invoice for SUMF Charges;
"JOINT OPERATING COMMITTEE" means the operating committee to be formed of
the Purchaser's Representative and the Supplier's Representative which
shall have the functions set out in Schedule 5;
"LEGAL REQUIREMENTS" means all applicable European Union laws and
regulations and national and local laws and regulations;
"LIABILITY" includes all and any claims, liabilities, costs, damages,
expenses, fines and penalties;
"LT SUMF" or "LONG TERM SUMF" has the meaning given to this term in Article
4.3;
"LOSS OR DAMAGE" means any loss or damage or injury of whatever nature,
including without limitation, personal injury, disease and death;
"METER" means the meter or other appropriate measuring device located at or
near the Delivery Point for the relevant SUMF Item;
"OPERATING AGREEMENT" means the First Amended and Restated Pernis Operating
and Maintenance Services Agreement, dated as of the Effective Date between
Shell Epoxy Resins Nederland B.V., as owner and Shell Nederland Chemie
B.V., as operator.
"OVERHEADS" means, without duplication of any Direct Site Cost, in relation
to each SUMF Item, an equitable allocation of the fixed costs incurred at
the Site related to management and operation of the Site that are not
specifically attributable to a certain plant at the Site (without ▇▇▇▇-up
or profit factor, except in accordance with Article 6.1(F)), including the
following (where they are not provided as separate SUMF Items): Site
management and general services; fire fighting, security and protection of
HSE; use of the medical department; office services, accommodation and
catering; and taxes;
Overheads shall not include any allocated costs of corporate services,
unless incurred for specific services in the same manner as Third Party
services, such as tax, legal or other services and shall not include the
fees paid to the Supplier's parent company(ies) or any other Affiliate,
division, business unit or headquarters as a share of corporate overhead.
For the avoidance of doubt, Overheads shall not include charges for the
depreciation or amortization of SUMF Assets and any other costs that
Supplier or any of its Affiliates is required to bear under the Transaction
Documents (other than the Pernis Agreements) or the IPTLA. Costs that the
Supplier or any of its Affiliates is required to bear under this Agreement
or any other Pernis Agreement shall be borne in accordance with the terms
hereof and thereof. The terms of this definition shall not be deemed to
modify any provision of any Transaction Document other than this Agreement,
including any express
6 PERNIS SNR FORWARD SUMF (RESINS)
payment or reimbursement obligation of the Purchaser to Supplier under any
Transaction Document other than this Agreement;
"PARTY" or "PARTIES" means the Supplier and/or the Purchaser as the case
requires, their successors and permitted assigns;
"PERNIS AGREEMENTS" means this Agreement, the Pernis Lease, the First
Amended and Restated Pernis Site Services, Utilities, Materials and
Facilities Agreements and the First Amended and Restated Pernis Operating
and Maintenance Services Agreements, each of which is between SNC and the
Purchaser or between the Purchaser and the Supplier;
"PERNIS LEASE" means the Amended and Restated Agreement of Sub-Lease
between the Parties dated as of the Effective Date;
"PLANT" means either of the plants described in Attachment 1 to Schedule 1
situated at the Site;
"PRE-CONTRACTUAL STATEMENT" means any draft, agreement, undertaking,
representation, warranty, promise, assurance or arrangement of any nature
whatsoever, whether or not in writing, relating to the subject matter of
this Agreement made or given by any person at any time prior to the date of
this Agreement other than the Transaction Documents and the IPTLA;
"PROPERTY" means, in relation to each Party, the plants, buildings and
other improvements, land and/or other real property interests, fixtures,
equipment, inventory, finished product, vehicles and other tangible
personal property interests owned or leased by a Party that are now or in
the future located within the Site or, in relation to the Supplier,
elsewhere if used to provide SUMF;
"PURCHASER'S REPRESENTATIVE" means the person named as being the
Purchaser's representative in Schedule 1 and any successor to that
position;
"REASONABLE ACTIONS" when used in the context of actions to be taken, means
efforts that would ordinarily be taken by a business person in the
applicable industry were he in the position under this Agreement of being
the supplier of SUMF Items or the owner of the Plant, whichever shall be
relevant;
"SER" means Shell Epoxy Resins, Inc.
"SHELL'S HSE AND TECHNICAL STANDARDS" means those standards as defined and
applied by the Royal Dutch/Shell group of companies for services and
operations hereunder at the location of the Site;
"ST SUMF" or "SHORT TERM SUMF" has the meaning given to this term in
ARTICLE 4.1;
"SITE" means the site described in SCHEDULE 1;
7 PERNIS SNR FORWARD SUMF (RESINS)
"SNC" means Shell Nederland Chemie B.V.;
"SOLE SUPPLIER SUMF" is referred to in ARTICLE 4.2;
"STEERING COMMITTEE" means a steering committee consisting of senior
representatives of the Purchaser and the Supplier which has
responsibilities beyond the daily operation of the Plant. The Steering
Committee shall discuss any matters of a general nature and any matters
which are fundamental to the performance of this Agreement pursuant to its
terms;
"SUMF" means the site services, utilities, materials and facilities to be
supplied under this Agreement;
"SUMF ASSETS" means those assets of the Supplier directly used in the
provision of SUMF;
"SUMF CHARGE(S)" or "Charge(s)" means the charge(s) to be paid by the
Purchaser to the Supplier for each SUMF Item in accordance with ARTICLE 5
and ARTICLE 6;
"SUMF ITEM" or "Item of SUMF" means any part of SUMF;
"SUPPLIER'S REPRESENTATIVE" means the person named as being the Supplier's
Representative in SCHEDULE 1 and any successor to that position;
"THIRD PARTY" means any person or company other than the Supplier, the
Purchaser or their respective Affiliates;
"TRANSACTION DOCUMENTS" means:
(i) that certain Sale Agreement dated September 11, 2000 by and between
Shell Petroleum N.V. and SER and all documents executed in
connection therewith, including the following:
(ii) the Pernis Lease;
(iii) this Agreement, the First Amended and Restated Pernis Site Services,
Utilities, Materials and Facilities Agreements and the First Amended
and Restated Pernis Operating and Maintenance Services Agreements,
each of which is between SNC and the Purchaser or between the
Purchaser and the Supplier;
(iv) the Environmental Agreement; and
(v) other agreements between the Purchaser or any of its Affiliates and
the Supplier or any of its Affiliates relating to the Plant or the
Site, or any part thereof.
8 PERNIS SNR FORWARD SUMF (RESINS)
"USER" means any company, entity, division, or business unit (including
divisions and business units of the Supplier and its Affiliates) to which
SUMF or its equivalent is furnished by the Supplier at the Site;
"VARIABLE COSTS" means those operating costs incurred at the Site by the
Supplier in providing SUMF which vary primarily based on consumption, usage
or production and which are reconcilable with the cost accounting system of
the Supplier existing as of the Effective Date and as from time to time
modified by the Supplier (if applied to the entire Site), including the
costs of air, cooling water, electricity, fuel, nitrogen, process
materials, steam and applicable taxes, but not depreciation; and
"WILFUL MISCONDUCT" means an intentional act or omission which is in
disregard of (a) a known risk or a risk so obvious that it cannot be said
one were truly unaware of it and (b) a risk so great that it is highly
probable that harm will follow.
ARTICLE 2: INTERPRETATIONS
2.1 In this Agreement, unless otherwise specified:
(A) references to Articles and Schedules are to Articles of, and Schedules
to, this Agreement;
(B) use of any gender includes the other genders;
(C) references to a "company" shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
(D) references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of a state,
local or municipal authority or government body or any joint venture,
association or partnership (whether or not having separate legal
personality);
(E) references to "USD", "NLG" and "EURO" are to United States Dollars,
Dutch Guilders and the single currency of the European Union,
respectively;
(F) any reference to a "day" (including within the phrase "Business Day")
shall mean a period of 24 hours running from midnight to midnight;
(G) a reference to any other document referred to in this Agreement is a
reference to that other document as amended, varied, novated or
supplemented at any time;
(H) where a word or phrase is given a particular meaning, other parts of
speech and grammatical forms of that word or phrase have corresponding
meanings;
9 PERNIS SNR FORWARD SUMF (RESINS)
(I) references to the Purchaser shall be deemed to include its successors
and assigns and references to the Supplier shall be deemed to include
its successors and assigns;
(J) a reference to this "Agreement" or any other agreement or document
shall be construed as a reference to it as amended, modified or
novated from time to time.
2.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not be taken into consideration in the
interpretation or construction of this Agreement.
2.3 In the event of a conflict between the terms and conditions set out in the
main body of this Agreement and any of the Schedules or attachments, the
relevant Schedule or attachment shall prevail, in relation to that
Schedule, unless expressly stated otherwise in this Agreement.
2.4 In the event of any inconsistency between the provisions of this Agreement
and the Intellectual Property Transfer and Licensing Agreement, the terms
of the Intellectual Property Transfer and Licensing Agreement shall
prevail.
2.5 Purchaser and Supplier acknowledge that (notwithstanding any provision to
the contrary in this Agreement), the provisions of Clause 10.3 of the
Environmental Agreement between Shell Petroleum N.V. and Shell Epoxy
Resins, Inc. for the Non-U.S. properties dated the date hereof (the
"Environmental Agreement") shall apply as between any Seller Indemnified
Party (as defined in the Environmental Agreement) and SER Indemnified Party
(as defined in the Environmental Agreement) and any Person (as such term is
defined in the Environmental Agreement) to whom a transfer or assignment is
made in accordance with Clause 11.1 of the Environmental Agreement. Any
obligation or liability of any SER Indemnified Party or Seller Indemnified
Party under this Agreement shall be without prejudice to the rights, if
any, of the relevant party to claim Environmental Damages (as defined under
the Environmental Agreement) under the Environmental Agreement.
ARTICLE 3: OBJECT AND SCOPE
3.1 Subject to ARTICLE 8.9 and Article 18, the Supplier agrees to supply to the
Purchaser and the Purchaser agrees to purchase from the Supplier the SUMF
Items described herein under the terms and conditions set out in this
Agreement. Except as otherwise provided in SCHEDULE 2, the Purchaser shall
purchase the amounts of each SUMF Item up to its Firm Capacity Reservation
until termination of the supply of such SUMF Item in accordance with the
provisions of this Agreement or the relevant schedule.
3.2 A description and, where appropriate, the technical specifications, the
price, delivery terms, specific exclusions and limitations, if any, on
consumption and supply, and such other details as this Agreement may
require or as the Parties may agree, of each SUMF Item are set out in
SCHEDULE 2.
▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇)
3.3 Firm Capacity Reservation amounts for each SUMF Item as agreed by the
Parties are set out in SCHEDULE 2 where applicable.
3.4 If the Purchaser or the Supplier subsequently wishes to change the nature,
quantity or type of any SUMF Item provided hereunder, the other Party shall
use reasonable efforts to accommodate such request but with no obligation
to make such change. ARTICLE 10.4 provides the Purchaser's right to reduce
its Firm Capacity Reservations for certain SUMF Items.
3.5 Title to and risk of loss of a SUMF Item shall pass from the Supplier to
the Purchaser at the Delivery Point(s) specified in SCHEDULE 2.
3.6 The Supplier makes no representations or warranties express or implied with
respect to any SUMF Items except as expressly set forth in this Agreement.
No representation or warranty shall be implied under this Agreement or at
law, including but not limited to, any warranty as to merchantability or
any warranty as to fitness for a particular purpose in relation to any SUMF
Item. The Supplier provides no warranty as to the performance of any
computer system, digital device and any component thereof. The Purchaser
acknowledges that except as expressly set forth herein, no representations
or warranties are being made herein and releases and relieves the Supplier
from and hereby waives any such other representations or warranties.
3.7 In the performance of their obligations under this Agreement the Parties
shall act in good faith and in substantial compliance with all applicable
laws.
ARTICLE 4: CATEGORIES OF SUMF
4.1 SUMF Items specified in SCHEDULE 2 as "Short Term SUMF" shall be supplied
to the Purchaser by the Supplier on an initial short term basis upon the
terms and for the period stated therein, provided that such term shall be
automatically extended unless either Party elects to terminate the supply
of a particular Short Term SUMF. Article 10 provides specific termination
provisions for Short Term SUMF Items.
4.2 The supply of SUMF Items specified in SCHEDULE 2 as "Sole Supplier SUMF"
may not be terminated by the Purchaser or the Supplier except by way of a
termination of this Agreement as a whole.
4.3 SUMF Items specified in SCHEDULE 2 as "Long Term SUMF" shall be supplied to
the Purchaser by the Supplier on a long term basis. ARTICLE 10 provides
specific termination provisions for Long Term SUMF Items.
4.4 Any SUMF Item that is not specified as being either a Short Term SUMF or a
Sole Supplier SUMF shall be a Long Term SUMF.
11 PERNIS SNR FORWARD SUMF (RESINS)
ARTICLE 5: SUMF CHARGES
5.1 In consideration of the supply of the SUMF Items by the Supplier to the
Purchaser, as provided herein, the Purchaser shall pay the Supplier the
SUMF Charges specified in SCHEDULE 2. In no event shall SUMF Charges
include any costs charged to Purchaser under any other agreement between
the Purchaser and the Supplier or any of the Affiliates of the Supplier.
5.2 The Purchaser shall be responsible for any existing or future sales tax,
use tax, value added tax, environmental tax or other governmental charge or
tax (other than taxes measured by income) levied or imposed on the Supplier
with respect to any SUMF Items consumed by the Purchaser. The Purchaser
shall also bear any increase in the cost of providing a SUMF Item which
results from a change in law. The charges to be paid by Purchaser under
this ARTICLE 5.2 shall be without duplication to the charges set forth in
the Schedules and ARTICLE 5.1.
ARTICLE 6: SUMF CHARGES WITH REFERENCE TO COST
6.1 Where SUMF Charges are to be determined wholly or partly by reference to
cost the following shall apply:
(A) Except as otherwise provided in this ARTICLE 6 or in SCHEDULE 2, the
Purchaser shall pay:
(i) its share of Variable Costs for each SUMF Item based on the
Purchaser's actual consumption of such SUMF Item;
(ii) its share of Direct Site Costs for each SUMF Item based on the
fraction equal to the Purchaser's Firm Capacity Reservation of
such SUMF Item compared to the total Site capacity of such SUMF
Item or the other relevant allocation key or keys specified in
SCHEDULE 6;
(iii) its share of Overheads for each SUMF Item without duplication of
Direct Site Costs based on the fraction equal to the Purchaser's
Firm Capacity Reservation of such SUMF Item compared to the
total Site capacity of such SUMF Item or any other allocation
key specified in SCHEDULE 6; and
(iv) the infrastructure charge specified in SCHEDULE 2.
(B) For the avoidance of doubt, wherever and to the extent the Supplier
enjoys a pension fund contribution holiday, the Purchaser will share
in the benefit of such holiday only until the date when the Supplier
resumes contributions to the pension fund at which point the pension
fund contributions for the relevant employees shall be included in the
Direct Site Costs.
12 PERNIS SNR FORWARD SUMF (RESINS)
(C) Costs will be ascertained and charged pursuant to the Supplier's cost
accounting practices which the Supplier represents are used for, or
are directly reconcilable with, its Financial Reporting Accounts. A
summary of the Supplier's current accounting practices for its
Financial Reporting Accounts is attached hereto in SCHEDULE 3. The
Supplier may modify its cost accounting practices for its Financial
Reporting Accounts from time to time in the normal course of business
in conformity with generally accepted accounting principles; but in
all events, after the Supplier has permitted the Purchaser to review,
and has consulted with the Purchaser as to, such modification.
Notwithstanding the foregoing, the Supplier shall not make any such
modification unless (i) it is for a legitimate business purpose not
designed solely to increase SUMF Charges to the Purchaser or to Users
generally and (ii) it does not have a discriminatory economic effect
on the Purchaser relative to other Users except as may be permitted in
this Agreement or as may be implemented to correct errors. The cost
of any component of SUMF Items procured by Supplier through a Third
Party shall be passed through to Purchaser at Supplier's cost plus an
allocation and charge for any applicable Overheads. The Parties
expressly acknowledge that any dispute pursuant to this ARTICLE 6.1(C)
is subject to the provisions of ARTICLE 19.
(D) The Purchaser shall not be responsible for any termination costs
resulting from the Supplier's fixed cost reduction efforts in response
to a reduction or termination of demand by any User other than the
Purchaser except to the extent that the Purchaser benefits from the
reduction efforts, in which case the Purchaser shall bear its
proportionate share of the costs up to but not in excess of the
benefit derived.
Conversely, the Purchaser shall pay the reasonable costs, including
personnel termination costs (including those actuarially determined)
determined in accordance with ARTICLE 10.9, which result from the
Supplier's fixed cost reduction efforts in response (i) to a permanent
or long-term reduction by the Purchaser of a Sole Supplier SUMF Item
or a Long Term SUMF Item or (ii) to the termination of a Short Term
SUMF Item for which the termination rights of the Supplier cannot be
exercised earlier than upon termination of the Operating Agreement (as
provided in the schedules attached to this Agreement) and for which
the Purchaser exercises its right of termination of the supply of such
Short Term SUMF Item prior to the termination of the Operating
Agreement.
(E) The Purchaser shall bear the costs of any redundancy programme in
accordance with ARTICLES 10.8 and 10.9 below required as a result of
any productivity improvement to a particular SUMF Item in proportion
to the reduction of the relevant SUMF Charges to the Purchaser before
and after the productivity improvement as compared to the reduction of
SUMF Charges to all other Users before and after the productivity
improvement; provided however that such costs to be paid by Purchaser
shall not exceed such reduction in SUMF Charges realized by Purchaser.
13 PERNIS SNR FORWARD SUMF (RESINS)
(F) If under applicable tax or other laws, the Supplier must charge a
▇▇▇▇-up or profit factor with respect to any SUMF Charge, or,
alternatively, if a profit factor is imputed under applicable tax or
other laws, the Parties shall, in good faith and with the view to
minimising the financial impact of such ▇▇▇▇-up or profit factor on
the Purchaser, discuss and agree to such revision to the SUMF Charge
as will ensure compliance with the relevant tax or other laws. Any
failure by the Parties to reach agreement on the revision to be made
shall constitute a Dispute.
(G) Unless the Parties agree otherwise in SCHEDULE 1, the Parties shall
keep accurate books and records of their activities relevant to this
Agreement, for at least two (2) years after the calendar year in
question or such longer period as may be required by law.
(H) To verify the correctness of all invoices issued and payments made
hereunder for the current calendar year and for any of the two (2)
preceding years and/or to verify the implementation of the Supplier's
curtailment procedures, and/or to verify the other Party's meter
readings a Party, upon at least sixty (60) days prior written notice
and at reasonable times and intervals but not more than once in any
calendar year, may require that, at the requesting Party's cost, an
independent public auditor, being a firm of international repute,
performs an audit for such purposes. Any such audit shall be pursued
diligently and completed no later than ninety (90) days after its
commencement.
The Parties shall provide such auditors with the necessary data and
explanations reasonably necessary for the calculation of the SUMF
Charges and the basis therefor.
The requesting Party undertakes to procure that such auditors are
bound by obligations of confidentiality at least as strict as those
set out in ARTICLE 12.
Any report produced by such auditors shall be provided to both the
Purchaser and the Supplier and shall state the results of the
aforementioned verifications. If such report reveals that errors have
been made and that a Party was overcharged or undercharged by an
amount equal to or greater than USD20,000 or its equivalent in local
currency, the report shall state the nature, amount and consequences
of such error(s) together with such additional information as is
reasonably necessary to explain the genesis of those errors and to
enable the Parties to avoid recurrence thereof.
Any refund of an overpayment or payment of an additional sum shall be
made within 28 days following the provision by the auditors of their
report and shall include interest at the Interest Rate for the time
period commencing when the overpayment was made or the underpayment
amount would otherwise have been due and ending on the date of any
refund or additional payment in consequence of the audit.
14 PERNIS SNR FORWARD SUMF (RESINS)
In the event of an overcharge equal to or greater than USD20,000 or
its equivalent in local currency the Supplier will reimburse the
Purchaser, if the Purchaser is the requesting Party, for the audit
costs. In the event of an undercharge equal to or greater than
USD20,000 or its equivalent in local currency and such an undercharge
being attributable to an error or errors relating to metering
equipment owned by the Purchaser, the Purchaser shall reimburse the
Supplier, if the Supplier is the requesting Party, for the audit
costs.
Failure to make any requisite payment relating to an overcharge or
undercharge within the 28 days period shall constitute a Dispute for
resolution in accordance with ARTICLE 19.
ARTICLE 7: PAYMENT TERMS
7.1 The Purchaser shall pay the SUMF Charges in the currency specified in
SCHEDULE 1.
In no event shall either Party be entitled to set off or reduce any
payments due and owing to the other Party under this Agreement by any
amount which the first Party claims are owed to it by the other Party
pursuant to any other agreement between the Parties.
7.2 Unless otherwise set out in the relevant Schedules, the provisions set out
below apply:
(A) The Supplier shall provide the Purchaser with an invoice for SUMF
Charges by the 5th day of each month.
(B) For the first two months of every twelve month billing cycle the
amount invoiced shall be the amount budgeted for those months in the
Annual Plan and Budget.
(C) For the next ten months of such twelve month billing cycle the amount
invoiced shall be the actual SUMF Charge for the month before the
preceding month.
(D) The final reconciliation for a twelve month billing cycle shall be
made within 60 days of the end of such cycle. The aggregate budgeted
SUMF Charges for the first two months of the cycle shall be reconciled
against the aggregate actual SUMF Charges for the eleventh and twelfth
months of the cycle and following such reconciliation the relevant
Party shall make an adjusting payment against an appropriate invoice
or credit note within thirty (30) days of the date of the relevant
invoice or credit note, which credit note or invoice shall include
interest computed at the Interest Rate for the applicable period.
(E) The invoices shall be broken down in sufficient detail to indicate the
SUMF Charges for each SUMF Item supplied during the period in
question. The SUMF Charge for each SUMF Item shall in turn be broken
down in sufficient detail as the Purchaser may reasonably request and
as the Supplier can reasonably provide.
15 PERNIS SNR FORWARD SUMF (RESINS)
(F) The Purchaser shall pay each invoice on or before the last day of the
month of issue of the relevant invoice. From the due date, interest
will accrue on the undisputed invoice amount at the Default Rate.
(G) If the Purchaser disagrees with an amount invoiced for SUMF Charges,
the Purchaser shall advise the Supplier in writing ("Invoice Dispute
Notice") of the amount disputed within sixty (60) days of the date of
the invoice and the reason why the Purchaser considers the SUMF
Charges not to be properly made. Subject to ARTICLE 7.2(H), the
Purchaser is entitled to defer payment of the disputed invoice amount
if the disagreement cannot be resolved before the normal due date but
the Purchaser is required to pay timely the undisputed invoice amount.
Payment of the undisputed invoice amount shall not constitute approval
of the entire invoice.
(H) The Parties shall meet to resolve any dispute with respect to an
invoice as expeditiously as possible. The Supplier shall provide to
the Purchaser within thirty (30) days after receipt of the Invoice
Dispute Notice information in detail sufficient to permit the
Purchaser to verify the accuracy of such invoice. The Purchaser shall
either accept the Supplier's response or give written notice to the
Supplier that the Purchaser continues to question such invoice.
Promptly after receipt of such notice, the Supplier and the Purchaser
shall negotiate in good faith with respect to resolving such question.
If the Supplier and the Purchaser cannot resolve such question in a
mutually satisfactory manner within twenty (20) days after such notice
shall have been given, the question shall promptly be submitted to a
firm of independent public auditors, of international repute, as
determined by mutual agreement between the Supplier and the Purchaser
within another twenty (20) days or, in default of agreement, as chosen
by lot from among four independent public auditors, two of which shall
be selected by the Supplier and two of which shall be selected by the
Purchaser. Such firm will review the applicable books and records of
the Supplier and the Purchaser and make such other investigations it
shall deem necessary to resolve such question. The costs of retaining
such firm shall be borne by the Purchaser unless the firm determines
that the Purchaser was overcharged by an amount equal to or greater
than USD 20,000 or its equivalent in local currency, in which case the
costs of retaining such firm shall be borne by the Supplier. The
decision of the auditors shall be final and binding on the parties and
not subject to challenge and resolution under ARTICLE 19 and judgment
thereon may be entered in any court of competent jurisdiction.
(I) Any refund of any invoice amount, or payment of any disputed invoice
amount, shall be promptly made following the final determination as
aforesaid and shall include interest at the Interest Rate based on the
actual number of days elapsed from the due date of the original
invoice to the date such refund or additional payment is received by
the Party concerned.
(J) The Supplier shall provide the Purchaser with a quarterly report on
variations from the Annual Plan and Budget no later than thirty (30)
days from the end of
16 PERNIS SNR FORWARD SUMF (RESINS)
the relevant quarter. In the event of a difference between the Annual
Plan and Budget and actual results exceeding the total Annual Plan and
Budget by more than 3% for the SUMF Item in question or by more than a
3% change in any tariff with respect to the SUMF Item in question or
the equivalent in local currency of USD 50,000, whichever is the
greater, the Supplier shall consult with the Purchaser and provide
relevant explanations for such differences. The Parties will discuss
which actions, if any, are to be taken with respect to such
differences.
ARTICLE 8: ANNUAL FORECAST; ANNUAL PLAN AND BUDGET; AND CURTAILMENT
8.1 For operational forecast purposes only, unless the Purchaser otherwise
submits to the Supplier on or before 1st June in each calendar year a non-
binding annual forecast of its quarterly volume requirements set out on a
month by month basis for each SUMF Item for the forthcoming calendar year
and estimates of its volume requirements for each SUMF Item for the
following four (4) calendar years, the Supplier shall use the prior year's
volume forecast for SUMF Items and estimates of volume requirements for the
forthcoming year and four subsequent years. The Purchaser shall update any
such forecast on or before September 1st of each year to provide its actual
forecast.
8.2 Not later than 60 days before the commencement of each calendar year
beginning after the Effective Date, the Supplier shall prepare and submit
to the Purchaser for approval a draft operational forecast of the SUMF
Charges (the "Annual Plan and Budget") for the following calendar year
taking into full account the forecast data provided to the Supplier by the
Purchaser.
8.3 Following receipt by the Purchaser of the draft Annual Plan and Budget, the
Parties shall consult and shall each use all reasonable endeavours to reach
agreement thereon. Upon the approval of both Parties, the draft Annual
Plan and Budget becomes the Annual Plan and Budget.
8.4 If the draft Annual Plan and Budget is not approved prior to the
commencement of the calendar year to which it relates the most recently
approved Annual Plan and Budget shall be used until the new Annual Plan and
Budget is approved.
8.5 Each Annual Plan and Budget shall be designed to ensure that the SUMF Items
are provided in accordance with this Agreement.
8.6 For each SUMF Item, the Annual Plan and Budget for the calendar year 1999
or, as applicable, 2000, is set out in SCHEDULE 2 or SCHEDULE 7, as
applicable.
8.7 If there is any Dispute between the Parties on the final Annual Plan and
Budget the matter shall be referred for resolution in accordance with
ARTICLE 19.
8.8 In the event that any SUMF Items are not available at the planned volume
rates for any reason whatsoever, the Supplier shall implement the then
current curtailment procedures
17 PERNIS SNR FORWARD SUMF (RESINS)
followed by the Supplier and as specified in SCHEDULE 2 or 4. Unless
otherwise provided in any Schedule hereto, such curtailment procedures will
be based upon the following priorities, provided that the interests of the
Purchaser are treated fairly: (i) safety; (ii) minimising adverse
environmental impact; and (iii) sustaining the operations of the Site as a
whole.
8.9 The Supplier shall have the right to impose curtailment selectively based
upon the foregoing considerations regardless of the cause of the
curtailment and without liability. However, nothing in this ARTICLE 8
shall permit the Supplier to curtail any SUMF Item based upon its business
considerations. Purchaser may allocate such curtailed SUMF Items among
Purchaser's operations as Purchaser determines in its sole discretion,
subject to the operational or HSE constraints of Supplier.
8.10 If reasonably possible, the Supplier shall advise the Purchaser of any
impending curtailment and the Parties shall cooperate to avoid or mitigate
the effects of such curtailment in an economically efficient manner.
ARTICLE 9: LIABILITY AND INDEMNITY
9.1 For purposes of this ARTICLE 9, the following terms shall be defined as set
forth below:
"Employee" means any employee of the applicable Party.
"Third Party Claim" means any claim initiated by a person (other than
either Party, their Affiliates or their employees) against an
indemnified Party, any of their respective Affiliates or any of their
respective Employees.
"Supplier Indemnitees" means the Supplier, its Affiliates, officers,
directors, employees, agents, servants, and other representatives of
each of them.
"Purchaser Indemnitees" means the Purchaser, its Affiliates, officers,
directors, employees, agents, servants, and other representatives of
each of them.
9.2 (A) Each Party shall, except as provided in ARTICLES 9.2(B), 9.3(A)(iii),
9.3(B)(iii) and as set forth in ARTICLE 9.3(C), be responsible for any Loss
or Damage to its property.
(B) If any Loss or Damage to a SUMF Asset shall occur by reason of the
Gross Negligence or Wilful Misconduct of a Party, such Party shall be
responsible for the cost of the restoration of such SUMF Asset.
(C) Each Party shall, except as provided in ARTICLE 9.3, be responsible
for any Loss or Damage it may cause to any of its employees.
18 PERNIS SNR FORWARD SUMF (RESINS)
9.3 (A) Subject to the limitations set forth in this ARTICLE 9 and in ARTICLE
14, the Purchaser shall be responsible for and shall indemnify, defend and
hold harmless the Supplier Indemnitees from and against the following:
(i) any Loss or Damage of Supplier Indemnitees to any of the
Purchaser's Employees attributable to (a) the Purchaser's
negligence (excluding any Loss or Damage attributable to
Supplier's negligence), or (b) the Purchaser's Gross Negligence
or Wilful Misconduct, or (c) the Supplier's negligence in an act
or omission with respect to performance of its obligations under
this Agreement (but not the Supplier's Gross Negligence or
Wilful Misconduct);
(ii) any Loss or Damage of Supplier Indemnitees to any of the
Supplier's Employees attributable to (a) the Purchaser's
negligence or (b) the Purchaser's Gross Negligence or Wilful
Misconduct;
(iii) any Loss or Damage to any of the Supplier's property (excluding
any SUMF Asset) attributable to the Purchaser's Gross Negligence
or Wilful Misconduct;
(iv) any Loss or Damage to any of the Purchaser's property (excluding
any SUMF Asset) attributable (a) to the Supplier's negligence in
an act or omission with respect to performance of its
obligations under this Agreement (but not the Supplier's Gross
Negligence or Wilful Misconduct) or (b) to the Purchaser's
negligence, Gross Negligence or Wilful Misconduct;
(v) any Loss or Damage of Supplier Indemnitees resulting from Third
Party Claims attributable to (a) the Purchaser's negligence or
(b) the Purchaser's Gross Negligence or Wilful Misconduct or (c)
the Supplier's negligence in an act or omission with respect to
performance of its obligations under this Agreement (but not the
Supplier's Gross Negligence or Wilful Misconduct);
(vi) any Loss or Damage of Supplier Indemnitees to any of Supplier's
Employees while conducting activities under this Agreement,
attributable to the Supplier's negligence in an act or omission
with respect to performance of its obligations under this
Agreement (but not the Supplier's Gross Negligence or Wilful
Misconduct);
(vii) any Loss or Damage of Supplier Indemnitees resulting from
failure by the Supplier to comply with Legal Requirements in
relation to performance of this Agreement limited to the amount
chargeable under this Agreement to Purchaser in respect of SUMF
Charges in any calendar year (if such Loss or Damage is incurred
partly in relation to performance of this Agreement
19 PERNIS SNR FORWARD SUMF (RESINS)
and partly in conjunction with other activities of Supplier
Indemnitees, the Purchaser shall only be liable hereunder
for any equitable allocation of such Loss or Damage in the
same manner Overheads are equitably allocated); provided
nothing in this ARTICLE 9.3(A)(vii) shall provide for a
duplication of recovery by Supplier;
provided, however, that, except as provided in ARTICLE 14 and
ARTICLE 9.7, the Purchaser's aggregate liability for any Loss or
Damage arising under ARTICLE 9.3(A)(ii)(b) or 9.3(A)(iii) shall not
(i) in any calendar year exceed 25% of the SUMF Charges in the
preceding calendar year (in the first calendar year, 25% of the SUMF
charges for that calendar year); or (ii) for loss resulting from any
single event, exceed 25% of the SUMF Charges in the calendar year in
which the Loss or Damage first occurs.
(B) Subject to the limitations set forth in this ARTICLE 9 and in ARTICLE
14, the Supplier shall be responsible for and shall indemnify, defend
and hold harmless the Purchaser Indemnitees from and against the
following:
(i) any Loss or Damage of Purchaser Indemnitees to any of the
Supplier's Employees attributable to the Supplier's Gross
Negligence or Wilful Misconduct;
(ii) any Loss or Damage of Purchaser Indemnitees to any of the
Purchaser's Employees attributable to the Supplier's Gross
Negligence or Wilful Misconduct;
(iii) any Loss or Damage to any of the Purchaser's property
(excluding any SUMF Asset) attributable to the Supplier's
Gross Negligence or Wilful Misconduct; and
(iv) Any Loss or Damage of Purchaser Indemnitees resulting from
Third Party Claims attributable to the Supplier's Gross
Negligence or Wilful Misconduct;
provided, however, that, except as provided in ARTICLE 14 and ARTICLE
9.7, the Supplier's aggregate liability for any Loss or Damage arising
under ARTICLE 9.3(B) shall not (i) in any calendar year, exceed 25% of
the SUMF Charges in the preceding calendar year (in the first calendar
year, 25% of the SUMF charges for that calendar year); or (ii) for
loss resulting from any single event, exceed 25% of the SUMF Charges
in the calendar year in which the Loss or Damage first occurs.
(C) If Supplier shall suffer Loss or Damage to SUMF Assets as a result of
the negligence (but not Gross Negligence or Wilful Misconduct) of
Purchaser or Supplier, Supplier shall be responsible to restore such
SUMF Asset and Purchaser shall reimburse Supplier for and in an amount
equal to (i) the cost to restore such SUMF Asset, multiplied by (ii)
the fraction equal to the Purchaser's Firm Capacity
20 PERNIS SNR FORWARD SUMF (RESINS)
Reservation for such SUMF Asset compared to the total site capacity of
such SUMF Item or other relevant allocation key or keys specified in
SCHEDULE 6. To cover the risk of the Purchaser having, pursuant to the
provision immediately above, to bear a proportion of the cost of
restoring a SUMF Asset in respect of which the Supplier has sustained
Loss or Damage, the Purchaser shall insure or, with Supplier's
consent, self-insure.
(D) Subject to the indemnity given by the Purchaser to the Supplier in
ARTICLE 9.3(A)(iv)(a) each party waives and releases the other Party
from and against any and all Loss or Damage to such Party's assets,
excluding any SUMF Asset, resulting from the negligence (but not Gross
Negligence) of the other Party.
9.4 A Party shall promptly notify the other Party of any claim made against it
arising out of matters covered in this ARTICLE 9. Once the indemnifying
Party accepts its indemnity obligation, it may, at its own cost, conduct
negotiations for the settlement of any claim made against the indemnified
Party, and any litigation that may arise therefrom in such reasonable
manner as the other Party shall from time to time approve, such approval
not to be unreasonably withheld or delayed. The indemnified Party shall
not make any admission which is prejudicial to the indemnifying Party
unless the indemnifying Party has failed to accept its indemnity
obligations within 20 days after having been requested to do so.
9.5 Notwithstanding anything to the contrary contained in this Agreement, under
no circumstance shall a Party or any of its Affiliates be held liable to
the other Party or any of the other Party's Affiliates for any loss of
profit, loss of use, loss of production, loss of contracts or for any other
indirect or consequential damage that may be suffered by the other, or for
any special, exemplary or punitive damages.
9.6 Any SUMF Items procured from a Third Party as indicated in the relevant
Schedules will be provided by the Supplier to the Purchaser under the same
terms and conditions applicable between the Supplier and the Third Party
and, to the extent so supplied, the Supplier shall have no liability with
respect to the supply or performance of such SUMF Items.
9.7 Notwithstanding any other provision of this Agreement, each Party shall, to
the fullest extent permitted by law, indemnify, defend and hold harmless
the other Party and its Affiliates from and against any and all
Environmental Loss or Damage including other Loss or Damage to an
Environmental Protection System, (after giving effect to any recoveries
from Third Parties) in any way resulting from or attributable to a product,
material, feedstock or off-take owned by such Party or its Affiliates;
provided however, that neither Party shall be required to indemnify the
other Party for any Environmental Damage (as defined in the Environmental
Agreement) for which such other Party is entitled to indemnification under
the Environmental Agreement.
9.8 Any liability of one Party to the other Party under this ARTICLE 9 shall
expire two years after the date on which the act or omission giving rise to
such Party's liability first
21 PERNIS SNR FORWARD SUMF (RESINS)
occurred, unless the Party makes a claim within such two year period, and
no claim, demand, action or proceeding shall be brought or initiated by the
claiming Party against the other Party thereafter; provided, however, that
the liability of a Party under ARTICLE 9.7 shall not be so limited.
9.9 The foregoing indemnities set forth in this Article 9 are intended to be
enforceable against the Parties in accordance with the express terms and
scope thereof.
9.10 The provisions of this ARTICLE 9 are for the benefit of the Purchaser
Indemnitees and the Supplier Indemnitees and no other party shall be
entitled to any benefit of the provisions of this ARTICLE 9.
ARTICLE 10: TERM AND TERMINATION; REDUCTION OF CAPACITY RESERVATION
10.1 This Agreement shall be of full force and effect on and from the Effective
Date and shall continue for an initial term of twenty (20) years from the
Effective Date and shall be automatically renewed thereafter for extension
terms of five (5) years each, unless terminated earlier as provided for in
this Agreement.
10.2 The Purchaser may terminate this Agreement in its entirety as to one or
both of its Plants in any of the following circumstances:
(A) if a Bankruptcy Event occurs and is continuing in relation to the
Supplier and the Supplier does not provide adequate assurances to the
Purchaser within thirty (30) days of the occurrence of the Bankruptcy
Event that the Supplier will continue to provide all SUMF Items to the
Purchaser on the terms and conditions of this Agreement;
(B) with twelve (12) months' prior written notice, following the decision
by the Purchaser to discontinue its operations at such Plant or
Plants; and
(C) with three (3) years' prior written notice, effective at the end of
the initial twenty (20) year term or at the end of any five (5) year
extension term, as the case may be.
10.3 Unless otherwise provided in a Schedule to this Agreement, the Purchaser
may terminate this Agreement as to the supply of an individual SUMF Item at
one or both of its Plants in any of the following circumstances, provided
always that no supply of Sole Supplier SUMF may be terminated by the
Purchaser without terminating this Agreement as a whole as to one or both
of its Plants:
(A) if a Bankruptcy Event occurs and is continuing in relation to the
Supplier and the Supplier does not provide adequate assurances to the
Purchaser within thirty (30) days of the occurrence of the Bankruptcy
Event that the Supplier will continue to
22 PERNIS SNR FORWARD SUMF (RESINS)
provide the particular SUMF Item to the Purchaser on the terms and
conditions of this Agreement;
(B) if, for reasons other than Force Majeure, a continuing material non-
conforming performance occurs as to the Supplier's provision of a SUMF
Item for more than thirty (30) days and the Purchaser has given the
Supplier written notice of such non-conforming performance and within
thirty (30) days thereafter such unsatisfactory performance has not
been corrected or the Supplier has not developed and implemented a
plan of corrective action reasonably satisfactory to the Purchaser to
prevent the reoccurrence of such non-conforming performance;
(C) with ninety (90) days' prior written notice, or such other notice
period as is provided in a Schedule for any Short Term SUMF Item;
(D) with three (3) years' prior written notice, or such other notice
period as is provided in a Schedule for any Long Term SUMF Item; and
(E) with at least thirty (30) days' prior written notice, upon the
occurrence of at least three (3) Force Majeure events (other than
Force Majeure events caused by "Acts of God" including Acts of God
affecting any supplier or vendor to Supplier) that occur with respect
to such particular SUMF Item during any twelve (12) months period.
10.4 If the Purchaser or the Supplier requests a change in the nature, quantity
or type of any SUMF Item provided hereunder, the other Party shall use
reasonable efforts to accommodate such request but with no obligation to
make such change. In the event of the charge for a particular SUMF Item
being based upon the Purchaser's Firm Capacity Reservation, the Purchaser
shall have the right with respect to such SUMF Item upon ninety (90) days
advance written notice in the case of a Short Term SUMF Item (or such other
period as may be required to terminate such Short Term SUMF Item under the
applicable Schedule) and three (3) years advance written notice in the case
of a Long Term SUMF Item (or such shorter period as may be required to
terminate such Long Term SUMF Item under the applicable Schedule) to reduce
its Firm Capacity Reservation for such SUMF Item and, when reduced, to
receive a pro rata reduction in the Direct Site Costs, Overheads,
Infrastructure Fees and such other costs that are allocated based on the
Purchaser's share of the aggregate of firm capacity reservations for such
SUMF Item in respect of all Users. There shall be no minimum or maximum
limit on the extent of the reduction except as the Supplier may require for
the protection of HSE. Termination cost (i.e. disconnection cost and
redundancy cost, as the case may be) associated with the reduction of the
Firm Capacity Reservation for a Long Term SUMF Item will be dealt with as
if such SUMF Item were terminated and the provisions of Article 10.8 shall
apply thereto.
10.5 The Supplier may terminate this Agreement in its entirety in any of the
following circumstances:
23 PERNIS SNR FORWARD SUMF (RESINS)
(A) if a Bankruptcy Event occurs and is continuing in relation to the
Purchaser and the Purchaser does not provide the Supplier with
adequate assurance (such as an advance payment or letter of credit or
such other security as is acceptable to Supplier) of continued payment
of the SUMF Charges for all SUMF Items within thirty (30) days of the
occurrence of the Bankruptcy Event;
(B) if the Purchaser fails to pay any SUMF Charge within three (3) months
of the date when such payment fell due, and (i) such failure continues
for an initial period of at least thirty (30) days after written
notice from the Supplier and (ii) further continues for an additional
period of at least ten (10) days following a second written notice
from the Supplier which second notice may be given at any time
following the expiration of the first thirty (30) day period but the
Supplier shall not be entitled to terminate this Agreement pursuant to
this provision when the Purchaser has in good faith referred any
disputed SUMF Charge for resolution in accordance with ARTICLE 7.2(H)
or ARTICLE 19, and made payment to the Supplier of any part of the
SUMF Charge not the subject of the Dispute;
(C) with at least twenty-four (24) months' prior written notice or, if
that is impossible, with as much notice as is possible under the
circumstances and in any event promptly after the Supplier has made
such decision, if the Supplier decides to cease operations of all or
substantially all of its SUMF Assets at the Site and does so cease
such operations; and
(D) with three (3) years' prior written notice, effective at the end of
the initial twenty (20) year term of this Agreement or at the end of
any five (5) year extension term, as the case may be.
10.6 Unless otherwise provided in a Schedule to this Agreement, the Supplier may
terminate this Agreement as to the supply of an individual SUMF Item in any
of the following circumstances, provided that no supply of Sole Supplier
SUMF may be terminated by the Supplier without terminating this Agreement
as a whole:
(A) if a Bankruptcy Event occurs and is continuing in relation to the
Purchaser and the Purchaser does not provide the Supplier with
adequate assurance (such as an advance payment or letter of credit or
such other security as is acceptable to Supplier) of continued payment
of the SUMF Charges for all SUMF Items within thirty (30) days of the
occurrence of the Bankruptcy Event;
(B) if the Purchaser without proper justification fails to pay any SUMF
Charge for such individual SUMF Item within three (3) months of the
date when such payment fell due, and such failure continues for an
initial period of at least thirty (30) days after written notice from
the Supplier, but the Supplier shall not be entitled to terminate this
Agreement pursuant to this provision when the Purchaser has in good
faith referred any disputed SUMF Charge for an individual SUMF Item
for resolution in accordance with ARTICLE 7.2(H) or ARTICLE 19, and
has made
24 PERNIS SNR FORWARD SUMF (RESINS)
payment to the Supplier of any part of the SUMF Charge not the subject
of the Dispute;
(C) with at least twelve (12) months' prior written notice or, if that is
impossible, with as much notice as is possible under the circumstances
and in any event promptly after the Supplier has made such decision,
if the Supplier decides to cease the supply to the entire Site of such
SUMF Item SUMF and does so cease such supply and such SUMF Item is not
a Sole Supplier SUMF Item;
(D) with ninety (90) days' prior written notice, or such other notice
period as is provided in SCHEDULE 2, for any Short Term SUMF Item;
provided, however, that such termination of a Short Term SUMF
Agreement by the Supplier may occur only on or after December 31, 2002
(or such other initial period of duration as may be expressly
specified in the applicable Schedule for such SUMF Item); and provided
further, however, that the effective date of any such termination
shall in all events occur on the last day of the calendar year which
follows such ninetieth day;
(E) with three (3) years' prior written notice effective at the end of the
initial period of twenty (20) years or at the end of any extension
period of five (5) years, as the case may be, for any Long Term SUMF
Item; and
(F) with at least thirty (30) days' prior written notice, upon the
occurrence of at least three (3) Force Majeure events (other than
Force Majeure events caused by "Acts of God", including Acts of God
affecting any third party supplier or vendor to the Purchaser) that
occur with respect to the same operating unit of Purchaser and with
respect to the same SUMF Item, during any twelve (12) months period.
10.7 Upon the termination of the supply of a Short Term SUMF Item to a Plant by
Purchaser, the Supplier shall physically disconnect from that SUMF Item's
delivery system to the Plant and shall pay all costs associated with the
physical disconnection. Upon the termination of a Short Term SUMF Item by
the Supplier pursuant to ARTICLE 10.5(A) or 10.6(A) due to a Bankruptcy
Event of Purchaser or pursuant to ARTICLE 10.5(B) or 10.6(B) due to a
payment default by Purchaser under this Agreement, the Supplier shall
physically disconnect from that SUMF Item's delivery system and Purchaser
shall pay all costs associated with the physical disconnection. Upon the
termination of the supply of a Long Term SUMF Item to a Plant, the
Purchaser shall physically disconnect from that SUMF Item's delivery system
to the Plant in the time and manner instructed by the Supplier. The
Purchaser shall pay the costs associated with the physical disconnection,
if a Long Term SUMF Item was terminated (i) by Purchaser pursuant to
ARTICLE 10.2(B) or 10.3(D) or (ii) by Supplier pursuant to ARTICLE 10.5(A),
10.5(B), 10.6(A) or 10.6(B). Each Party agrees to cooperate with the other
Party in order to facilitate disconnection and minimize disconnection
costs. The Supplier shall pay the costs associated with the physical
disconnection of the Long Term SUMF Item that are not required to be paid
by the Purchaser as provided in the preceding sentence. Notwithstanding
the other provisions of this ARTICLE 10.7, the costs associated with the
physical disconnection of all
25 PERNIS SNR FORWARD SUMF (RESINS)
SUMF Items at the termination of this Agreement under ARTICLE 10.2 (C) or
10.5 (D) or upon termination of the supply of an individual SUMF Item under
ARTICLE 10.6(E) shall be paid one half by the Purchaser and one half by the
Supplier.
10.8 In the event of termination of this Agreement pursuant to ARTICLE 10.2(A),
10.2(B), 10.3, 10.5(A), 10.5(B), 10.5(C) or upon termination of the supply
of an individual SUMF Item under ARTICLE 10.6, the Supplier may terminate
the employment of any member of its or any of its Affiliates' staff
substantially involved in the provision of SUMF Items to the Purchaser
under this Agreement. In the event of termination of this Agreement as to
the supply of an individual SUMF Item pursuant to ARTICLE 10.6, and in the
event of a reduction in the Purchaser's Firm Capacity Reservation pursuant
to ARTICLE 10.4, the Supplier may terminate the employment of any member of
its or any of its Affiliates' staff substantially involved in the provision
of the relevant SUMF Item. In the case of the termination by the Supplier
of employment of any member of its staff as a result of termination of this
Agreement under ARTICLE 10.2(B), 10.5(A), 10.5(B), 10.6(A) and 10.6(B) or a
reduction in the Purchaser's Firm Capacity Reservation under ARTICLE 10.4,
the Purchaser will indemnify the Supplier for any redundancy costs in
accordance with ARTICLE 10.9; provided that such indemnity shall be on a
pro rata basis in the proportion of the Purchaser's share of allocated
manpower for its operation to the extent that any employee is not
substantially involved in the provision of that individual SUMF Item.
Notwithstanding the foregoing provisions of this ARTICLE 10.8 that set out
the indemnity of Purchaser for certain redundancy costs of Supplier, at the
termination of this Agreement under ARTICLE 10.2(C), 10.5(D), or upon the
termination of an individual SUMF Item under ARTICLE 10.6(E) any redundancy
costs of Supplier as determined in accordance with ARTICLE 10.9, shall be
paid one half by the Purchaser and one half by the Supplier.
10.9 In the event of termination of this Agreement whether in its entirety as to
one or both Plants or as to the supply of an individual Item of SUMF
pursuant to any of ARTICLES 10.2(B), 10.2(C), 10.3(D), 10.3(E), or 10.5(A),
10.5(B), 10.5(D), 10.6(A), 10.6(B), and 10.6(E) with respect to any member
of staff terminated in accordance with ARTICLE 10.8 who (i) in the case of
the termination of this Agreement in its entirety, was substantially
involved in the provision to the Purchaser of a Long-Term SUMF Item or Sole
Supplier SUMF or (ii) in the case of the termination of this Agreement as
to the supply of an individual Long Term SUMF Item or of a reduction in the
Firm Capacity Reservation as to a Long Term SUMF Item, was substantially
involved in the provision to the Purchaser of such SUMF Item, the Purchaser
will indemnify the Supplier in full against all and any liabilities,
losses, costs, damages, expenses, demands and claims relating to
(a) compensation and remuneration (including benefit entitlements and
social charges whether contractual or statutory) arising from or in
connection with (i) the period of employment from the date of
termination of the SUMF Item to the date of such decision to terminate
the Employee and (ii) the relevant notice period applicable to the
relevant employee in accordance with the Supplier's applicable policy
and
26 PERNIS SNR FORWARD SUMF (RESINS)
(b) the termination of his employment provided (i) the Supplier shall
make any decision regarding the termination of employment and notify
the Purchaser accordingly within 180 days of notification of the
termination of the Agreement or the termination of the supply of an
individual Item of SUMF; and (ii)the Supplier has used reasonable
endeavours, but has failed, to find suitable alternative employment
on the Site for the employee prior to notifying the employee of his
dismissal in accordance with Dutch law and with his contract of
employment; (iii) an employee who is transferred by the Supplier to
an Affiliate as a result of any such termination shall not be
considered a terminated employee for purposes of this Agreement
unless such transfer results in severance costs in which case the
Purchaser shall indemnify the Supplier for such severance costs in
accordance with this ARTICLE 10.9; and (iv) and notwithstanding the
provisions of ARTICLE 10.9(a) the severance cost arising out of the
termination of such employee's employment shall be computed by
reference to the total length of service of such employee with the
Supplier or any of its Affiliates prior to the date of such decision
to terminate the employee's employment and not by reference to the
period specified in ARTICLE 10.9(a).
Notwithstanding the foregoing provisions of this ARTICLE 10.9 that set out
payment of certain costs by Purchaser, at the termination of this
Agreement under ARTICLE 10.2(C) or 10.5(D) or upon termination of the
supply of an individual SUMF Item under Article 10.6(E) any redundancy
costs of Supplier as determined in accordance with ARTICLE 10.9, shall be
paid one half by the Purchaser and one half by the Supplier.
10.10 Each Party shall exercise its reasonable efforts to minimise any adverse
effect to the other Party resulting from the termination of the rendering,
in whole or in part, of any SUMF Items under this Agreement. Each Party
agrees to cooperate with the other Party in order to facilitate any
disconnection and minimise disconnection costs and termination costs. In
the event the Supplier purports to cease to provide any Long Term or Sole
Supplier SUMF Item during the ten-year period following the Effective Date
as a result of its cessation of operations of all or substantially all of
its SUMF Assets at the Site or its cessation of supply to the entire Site
of such SUMF Item, the Supplier shall continue to provide the Purchaser
with such SUMF Item for the balance of the ten-year period on a basis
which is the economic equivalent of the Supplier's supply to the Purchaser
of such SUMF Item prior to the Supplier's cessation of operations or
supply. The manner in which the Supplier continues to provide such SUMF
Item on an economically equivalent basis shall be within the Supplier's
sole discretion and may include the transfer by the Supplier of SUMF
Assets, the assignment of all or part of this Agreement to Third Parties,
the investment in alternative assets and the procurement of comparable
items from Third Parties. In the event such termination occurs following
the tenth anniversary of the Effective Date, the provisions of ARTICLE
10.11 shall apply to Supplier's provision of SUMF Items.
10.11 Upon termination of this Agreement, the Parties, acting reasonably and in
good faith, shall negotiate for the continued provision of any essential
SUMF Items on commercially competitive terms and conditions, including
price, which shall in any event be sufficient
27 PERNIS SNR FORWARD SUMF (RESINS)
to provide the Supplier with full recovery of its cash costs plus a return
on capital and capital reimbursement consistent with the other SUMF
infrastructure charges contained in this Agreement. In addition, if such
termination occurs any time after the tenth anniversary of the Effective
Date,
(a) the Supplier shall consider, without obligation, the same
alternatives which it may consider upon termination of the provision
of SUMF Items during the ten-year period commencing with the
Effective Date pursuant to ARTICLE 10.10; and
(b) the Purchaser shall have the right to continue to receive from the
Supplier any essential Long Term or Sole Supplier SUMF Items for
which the Purchaser cannot obtain a reasonable alternative source
elsewhere.
10.12 Subject to ARTICLES 10.10 and 10.11 any termination of this Agreement, in
whole or in part, including the termination of the supply of an individual
SUMF Item and any reduction in the Purchaser's Firm Capacity Reservation
for a SUMF Item, shall be final.
10.13 Termination of this Agreement under this ARTICLE 10 shall not affect the
provisions of ARTICLES 6 (as to audit rights), 9, 10.7, 10.8, 10.9, 10.10,
10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 11, 12, 14, 17.4, 19, 23, 25,
26, 27, 28 and 29 which shall continue in full force and effect.
10.14 Within 60 days after termination of this Agreement as to one or both
Plants, the Supplier shall provide a final reconciliation of SUMF Charges.
Any overcharges or undercharges shall be paid by the Party owing the same
within twenty (20) days following the final reconciliation (after any
required adjustments have been made). The final recalculation shall be
broken down in such detail as the Purchaser may reasonably request and as
the Supplier can reasonably provide. From the due date of the
reconciliation payment, interest will accrue at the Default Rate. The
Parties shall meet to resolve any dispute relating to the final
reconciliation as expeditiously as possible in accordance with ARTICLE 19.
10.15 Termination of this Agreement as to one or both Plants and termination of
the supply of any individual SUMF Item shall be without prejudice to the
accrued rights and liabilities of the Parties at the time of such
termination and all provisions of this Agreement necessary for the full
enjoyment thereof shall survive termination for the period so necessary.
10.16 Notwithstanding the foregoing provisions of this ARTICLE 10, if there is a
Dispute regarding the termination of this Agreement or a SUMF Item, no
termination shall occur until sixty (60) days following resolution of the
Dispute (i) under ARTICLE 19 or ARTICLE 7.2 (H), as applicable or (ii) by
written agreement of the Parties; provided, however that the additional
sixty (60) day period in this sentence shall be ten (10) days if the
termination of this Agreement or a SUMF Item is by the Purchaser under
ARTICLE 10.2(A) or ARTICLE 10.3(A) or (B) or is by the Supplier under
ARTICLE 10.5(A), 10.5(B), 10.6(A) or 10.6(B).
▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇)
ARTICLE 11: INTELLECTUAL PROPERTY RIGHTS
11.1 Neither this Agreement nor the performance by any of the Parties of its
duties hereunder shall operate to convey, license or otherwise transfer
from one Party to another any patent, know-how, trade secrets or other
intellectual property rights.
11.2 The copyright and any other industrial property rights and property in any
Confidential Record or other material supplied under this Agreement shall,
in the absence of any express provision to the contrary thereon, remain
with the disclosing Party.
ARTICLE 12: CONFIDENTIALITY
12.1 Subject to ARTICLE 12.2, each Party shall treat as strictly confidential
(and shall not disclose) all information received or obtained as a result
of entering into or performing this Agreement which relates to:
(A) the provisions of this Agreement;
(B) the negotiations relating to this Agreement;
(C) the performance of this Agreement;
(D) the other Party or any aspect of its business or operations; or
(E) the subject matter of this Agreement.
12.2 Either Party may disclose information which would otherwise be
confidential if and to the extent:
(A) required by the law of any jurisdiction to which the disclosure is
subject;
(B) required by any securities exchange or agency to which either Party
is subject, wherever situated, whether or not the requirement has the
force of law; provided that the disclosing Party requests in
accordance with applicable rules confidential treatment of such
information by any such securities exchange or agency to whom such
information is required to be disclosed;
(C) disclosed on a strictly confidential basis to the professional
advisers or auditors of the Party or to any actual or potential
bankers or financiers of that Party;
(D) disclosed on a strictly confidential basis to an Affiliate or
Affiliates;
(E) disclosed on a strictly confidential basis to bona fide potential or
actual purchasers of a proprietary interest in or potential or actual
operators of either the Plant or the Site;
▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇)
(F) disclosed to the corporate shareholders or other equity owners of the
Parties;
(G) that the information is lawfully known to the Party (without binder
of secrecy) at the time of disclosure; or
(H) that the information has come into the public domain through no fault
of that Party;
(I) that the other Party has given prior written approval to such
disclosure; or
(J) disclosed to the extent necessary to seek enforcement of, or to
defend, the contractual rights or obligations of a Party under this
Agreement, any Transaction Documents, the IPTLA or other related
agreements, or to satisfy an obligation or duty under this Agreement.
12.3 If the Purchaser should wish to disclose confidential information to a
potential Third Party operator of the Plant, it shall first obtain the
permission of the Supplier as to the information that can be disclosed,
which permission shall not be unreasonably withheld.
12.4 The restrictions contained in ARTICLE 12.1 shall continue to apply for two
(2) years (except for the restriction provided in ARTICLE 12.1 (D), which
shall continue to apply for five (5) years) after (i) the termination of
this Agreement or (ii) the termination of an individual SUMF Item; provided
that the two year period shall not apply to disclosures of information
relating to such SUMF Item made only to an alternative SUMF provider or
potential alternative SUMF provider on a strictly "need to know basis".
▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇)
ARTICLE 13: ADDITIONAL SUMF AND CAPITAL IMPROVEMENTS TO SUMF ASSETS
13.1 The Purchaser may submit from time to time to Supplier written requests for
Supplier to undertake capital improvement projects relating to the supply
of SUMF Items. Any such request shall specify in reasonable detail the
capital improvements to be made, any permits that may be required, the
estimated cost of such capital improvements, any proposed changes to this
Agreement, and any other relevant information relating to such capital
improvement project. Supplier agrees that it will consider in good faith
any such request, but Supplier shall have no obligation to agree to
undertake any such capital improvement project and may reject any request
by Purchaser. Supplier shall provide Purchaser a written explanation for a
rejection. If Supplier agrees to undertake any such capital improvement
project, Purchaser shall be entitled to receive the additional capacity of
a SUMF Item generated by such capital improvement and Purchaser shall be
responsible for all costs associated with such project, without duplication
of other amounts paid or payable by Purchaser under this Agreement
including (a) the cost of completing the capital improvements, (b)
Supplier's costs and expenses incurred in connection with such project, and
(c) any increased costs of operation suffered by Supplier as a result of
such project.
Notwithstanding the foregoing, the Purchaser has the right, provided there
is no unreasonable disruption to any other of the Supplier's operations, to
obtain from other sources, including in-house production by the Purchaser,
such new or additional requirements of the relevant SUMF Item as the
requested project was to cover.
Any reasonable costs incurred by the Supplier (not including any additional
charge for services by persons whose services are included in SUMF Charges
irrespective of the required evaluation) or affiliates of Supplier in
evaluating a requested capital improvement project shall be reimbursed to
the Supplier by the Purchaser; provided that when incurring such costs the
Supplier has acted on a Commercially Reasonable basis.
13.2 If a capital improvement to a SUMF Asset is required by applicable law or
HSE regulations solely because of the Purchaser's process, products or by-
products, the costs directly related to such capital improvement shall be
borne by the Purchaser.
13.3 If the Purchaser determines and notifies the Supplier, within the first
twelve months following the Effective Date, that a service has historically
been supplied by the Supplier but such service is not included in this
Agreement, the Supplier shall make such service available to the Purchaser
at a price and on terms mutually agreeable, but following the same concepts
as to Direct Site Costs, Variable Costs and Infrastructure Charges as set
forth herein.
31 PERNIS SNR FORWARD SUMF (RESINS)
ARTICLE 14: DAMAGE TO SUMF ASSETS
14.1 If SUMF Assets are damaged or destroyed, the owner of the SUMF Asset shall
timely restore such asset as soon as is practical following the damage or
destruction.
14.2 If the owner does not timely fulfill its obligation to restore the SUMF
Asset, the other Party may at its discretion take such other reasonable
measures as are necessary or useful to find an alternative source for any
relevant SUMF Item or its equivalent for the benefit of all Users on a
temporary basis until such restoration is complete.
14.3 The Party causing damage to a SUMF Asset as a result of its Gross
Negligence or Wilful Misconduct shall assume liability for any incremental
costs of such alternative SUMF Items so that the Users of such SUMF Items
other than such Party or its Affiliates pay the same amount for such SUMF
Items during such temporary period as such Users paid prior to the damage
or destruction of the relevant SUMF Assets.
ARTICLE 15: METERING OF SUPPLY, CONSUMPTION AND DELIVERY
15.1 The quantities of certain SUMF Items supplied hereunder shall be measured
by a Meter. The Meter shall be installed, owned and operated at the expense
of the Party indicated in SCHEDULE 2 as the Meter owner. The Meter owner
shall read the Meter on a regular basis as described in SCHEDULE 2 and
shall promptly advise the other Party in writing of the reading. Such
readings shall form the basis for preparing the Supplier's invoices
pursuant to ARTICLES 5, 6 and 7.
15.2 The Parties acknowledge that the Meters are not normal custody transfer
meters. The Meter owner shall, at its expense, perform normal maintenance
procedures to maintain the accuracy of its Meters. Each Meter shall be
tested for accuracy and calibrated regularly per industry standards as
specified in SCHEDULE 2 by the Meter owner at its expense. The Meter owner
shall give the other Party a written schedule of calibration test times,
and the other Party shall have the right to have its representative present
to observe each calibration test. If the other Party desires to conduct
more frequent calibration tests, such Party may request that more frequent
tests be conducted, in which case the Meter owner will perform or cause to
be performed such tests at the other Party's expense.
15.3 Following any calibration test made pursuant to this ARTICLE 15, the Meter
owner at its expense shall restore an inaccurate component to a condition
of accuracy or replace such component as soon as reasonably practical. If
the level of inaccuracy exceeds that specified in SCHEDULE 2, the readings
affected by said component shall be corrected by the amount of the
inaccuracy for the period which is definitely known to be affected by such
inaccuracy. If the period is not definitely known and is not mutually
agreed upon, the correction shall be made for a period one-half of the time
elapsed between the last prior calibration test and the date the inaccuracy
is corrected. Adjustments to a previously issued incorrect invoice shall be
made promptly by the Supplier.
32 PERNIS SNR FORWARD SUMF (RESINS)
15.4 The Parties acknowledge that special metering problems may arise which can
be resolved by procedures other than those described in this ARTICLE 15.
The Parties may, by mutual consent, establish special procedures for a
specific problem or accept delivery quantities in a manner not described
herein. Mutual consent for acceptance of one special procedure or delivery
quantity will not set aside the provisions of this ARTICLE 15, nor imply
acceptance by either Party of any special provision at a future time.
15.5 Should the Supplier or the Purchaser fail to obtain suitable measurement
results from the Meter, the quantities of SUMF provided during the period
in question shall be calculated by the other Party in the event that the
other Party has installed its own check meter and it has been calibrated
according to this ARTICLE 15 within ninety (90) days of the period in
question. In the event that neither Party has obtained suitable
measurement results, the amount of the relevant SUMF Item supplied in the
period in question shall be estimated, using the average of delivered
quantities for a period of time agreed upon by both Parties, or by any
other means mutually agreed upon by both Parties. If a Party installs a
check meter, the other Party shall have the right to have its
representative at any calibration test of the check meter. A Party
installing a check meter shall perform all maintenance and calibration
tests of the check meter at its own expense, and shall furnish the other
Party with all readings obtained from the check meter.
15.6 The Parties shall complete promptly the identification of all receipt and
Delivery Points for the various SUMF Items described in SCHEDULE 2 and all
drawings related thereto.
15.7 If there is no Meter at a Delivery Point the allocation method set out in
SCHEDULE 6 shall be used. The Joint Operating Committee shall have the
authority to update and/or correct any allocation method, with any updating
and/or corrections being adjusted prospectively. Either Party may, at its
own expense, install a Meter in lieu of allocation.
15.8 Methods for allocating line losses and differences resulting from
measurement discrepancies shall be set out in SCHEDULE 2 and SCHEDULE 3.
ARTICLE 16: JOINT OPERATING COMMITTEE
16.1 The Supplier and the Purchaser shall jointly establish the Joint Operating
Committee to review the operation of this Agreement and the supply of SUMF
hereunder in an effort to ensure the smooth and efficient operation of this
Agreement. The structure and role of the Joint Operating Committee is set
out in SCHEDULE 5.
16.2 Every two (2) years, or as often as either Party may reasonably require,
the Joint Operating Committee will review the overall effectiveness of this
Agreement and will discuss possible opportunities for improvement.
ARTICLE 17: MISCELLANEOUS
17.1 Both Parties shall perform their respective duties under this Agreement (i)
following standards applied by the industry in similar operations and in
keeping with good industry
33 PERNIS SNR FORWARD SUMF (RESINS)
practice and in compliance with applicable law and (ii) in a manner each
Party reasonably believes to be fair to the other Party.
17.2 The services under this Agreement shall be provided in accordance with
Shell's HSE and Technical Standards.
17.3 The Parties will keep each other timely informed about planned turnarounds,
shutdowns, major technical projects, capital expenditures and any other
major events which in each case are relevant to the supply or cost of any
SUMF Item and/or the operation of the Purchaser's Property. The Supplier
shall take such Reasonable Actions within its control so as to minimise the
impact to the Purchaser of any planned turnaround, shutdown, major
technical project, capital expenditure and any other major event which may
adversely impact the supply of any SUMF Item, without prejudice to health,
safety and environmental standards. The Parties shall keep each other
timely informed of any adjustments or changes to these plans.
17.4 Purchaser explicitly waives any rights to claim pursuant to this Agreement
against Shell Nederland B.V. on the basis of the filing by Shell Nederland
B.V. of a "verklaring van aansprakelijkheid" under Article 2:403 of the
Dutch Civil Code.
ARTICLE 18: FORCE MAJEURE
18.1 A Party will not be in breach of this Agreement (except for breach of an
obligation to pay money due and payable under this Agreement) to the
extent:
(A) performance by the Party is delayed or prevented by Force Majeure;
(B) the Party claiming relief under this Article promptly notifies the
other Party of the circumstances giving rise to Force Majeure and
their anticipated duration; and
(C) the Party so claiming relief undertakes to take Reasonable Actions to
remedy and overcome the cause of such Force Majeure as promptly as
possible.
18.2 Upon remedying or overcoming the circumstances giving rise to Force
Majeure, the Party claiming relief under this Article shall promptly notify
the other Party of the termination of such Force Majeure condition.
18.3 If the Force Majeure in question prevails for a continuous period in excess
of thirty (30) days after the date on which the Force Majeure begins, the
Parties shall consult together with a view to determining mutually
acceptable measures to overcome the difficulties arising therefrom.
18.4 "FORCE MAJEURE" means, in relation to either Party, an event, condition or
circumstance beyond the reasonable control of that Party and without the
fault or negligence of the Party claiming Force Majeure which causes a
delay or disruption in the performance by such Party of any of its
obligations under this Agreement including, without limitation:-
34 PERNIS SNR FORWARD SUMF (RESINS)
(A) fire, explosion or other disruption, mechanical breakdown, electrical
shortage or blackout, decline or shortages of supply, and
circumstances arising out of information technology not being
millennium compliant; and
(B) lock-outs, strikes and other industrial disputes.
For the avoidance of doubt, the settlement of a labour strike, lockout or
any other kind of labour dispute is not within the reasonable control of
the Party affected and the requirements of this Article shall not oblige
that Party to settle a strike, lockout or other labour dispute on terms
contrary to its wishes.
ARTICLE 19: DISPUTE RESOLUTION
19.1 Any Dispute arising out of or in connection with this Agreement, excluding
Invoice Disputes subject to ARTICLE 7.2(H) shall be exclusively processed
in accordance with this Article.
19.2 In the event of a Dispute, the Parties shall, within ten (10) days of a
written request by either Party to the other Party, meet in good faith to
resolve such dispute or differences.
19.3 Any Dispute which cannot be resolved by the Parties shall be submitted to
the Joint Operating Committee which shall endeavour to amicably resolve the
Dispute. The Parties shall provide the Joint Operating Committee with such
information as it reasonably requires to enable it to determine the issues
relevant to the Dispute.
19.4 Any Dispute which cannot be resolved by the Joint Operating Committee shall
be submitted to the Steering Committee which shall endeavour to amicably
resolve the Dispute. The Parties shall provide the Steering Committee with
such information as it reasonably requires to enable it to determine the
issues relevant to the Dispute.
19.5 Any Dispute which cannot be resolved by the Steering Committee shall be
submitted to mediation before a mediator selected by the Steering
Committee. The Parties shall bear their own costs for mediation and the
costs of the mediator shall be borne equally. If the Parties are unable to
select a mediator within fifteen (15) days or if the Dispute is not
resolved as a result of the mediation within sixty (60) days (or such other
period as may be agreed by the Parties), either Party may submit the matter
to arbitration for final, binding and exclusive settlement by three
arbitrators in accordance with the UNCITRAL Arbitration Rules, with the
President of the ICC Court of International Arbitration to act as the
appointing authority, or any other arbitration provided for in SCHEDULE 1,
such arbitration to be held in the country where the Site is located at the
place specified in SCHEDULE 1. Any arbitration decision pursuant to this
ARTICLE 19 shall be final and binding upon the parties and judgment thereon
may be entered in any court of competent jurisdiction. Costs incurred by
the Parties in carrying on any arbitration proceeding hereunder (including
reasonable attorneys' fees and arbitration fees) shall be determined by the
arbitrator by reference to fault.
35 PERNIS SNR FORWARD SUMF (RESINS)
19.6 Pending resolution of any Dispute, the Supplier shall consult with the
Purchaser with regard to any change to the specification of any SUMF Item
with which the Dispute is connected.
19.7 Resolution of any Dispute between the Parties involving payment of money by
one Party to the other shall include payment of interest at the Interest
Rate.
19.8 Each Party shall, in addition to all rights provided herein or provided by
law, be entitled to the remedies of specific performance and injunction to
enforce its rights hereunder.
ARTICLE 20: FURTHER ASSURANCE
20.1 Each Party shall at its own cost, from time to time on request, do or
procure the doing of all acts and execute or procure the execution of all
documents in a form satisfactory to the other Party which the other Party
may reasonably consider necessary for:
(A) giving full effect to this Agreement; and
(B) securing to the other Party the full benefit of the rights, powers and
remedies conferred upon the other Party in this Agreement.
ARTICLE 21: COSTS AND EXPENSES
21.1 Save as otherwise stated in this Agreement, each Party shall pay its own
costs and expenses in relation to the negotiation, execution and carrying
into effect of this Agreement.
ARTICLE 22: ASSIGNMENT AND DELEGATION
22.1 The Purchaser shall be entitled to assign this Agreement, to any Affiliate
or to a lender or lenders for security purposes so long as such lender is a
bona fide financial institution with a business that includes lending money
and has a net worth in excess of 100,000,000 USD, without the prior written
consent thereto of the Supplier (and such lender or lenders shall have the
right (without such prior written consent) to further assign this Agreement
in connection with the exercise of their rights and remedies pursuant to
such security agreements). Purchaser shall provide Supplier notice of such
assignment promptly after any such assignment, but in any event within
sixty (60) days of such assignment. Except as provided above in this
ARTICLE 22.1, any other assignment of the Agreement by the Purchaser to a
Third Party, shall require the consent of the Supplier, such consent not to
be unreasonably withheld or delayed.
22.2 The Supplier shall be entitled to assign this Agreement to any Affiliate or
Third Party without the prior written consent thereto of the Purchaser.
36 PERNIS SNR FORWARD SUMF (RESINS)
22.3 Any assignment of this Agreement shall not relieve either Party of any
obligation or liability incurred hereunder and remaining wholly or
partially outstanding immediately prior to the time at which the assignment
is to take effect.
22.4 Each Party agrees to execute and deliver to the other Party and, if
applicable, its lenders, recognition and estoppel certificates, in form and
content consistent with ordinary and common practice in transactions of the
nature of this transaction, which instruments will state the status of this
Agreement as to whether a default exists and will recognize any Third Party
rights.
22.5 The Supplier may at its discretion procure from its Affiliates or any Third
Party certain information, advice, services and SUMF Items which it is
obliged to render or perform under this Agreement, or may delegate to any
Affiliate or Third Party the performance of its rights and obligations
under this Agreement, in order to assist the Supplier in the efficient
execution of this Agreement provided that the person or company to whom
delegation is made shall be capable of rendering the services.
ARTICLE 23: SEVERABILITY
23.1 If any of the provisions of this Agreement is or becomes illegal, void or
unenforceable under the law of any jurisdiction, such provision shall be
deemed to be deleted from this Agreement and the remaining provisions of
this Agreement shall remain and continue in full force and effect. In such
event, this Agreement shall be modified to provide the same benefits and
burdens (including economic) that would have been provided had this
provision been deleted. In the event that the Parties cannot agree on
modifications, the Dispute shall be resolved pursuant to ARTICLE 19.
23.2 The invalidity of one or more provisions of this Agreement shall not
affect:
(A) the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
(B) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
ARTICLE 24: NO AGENCY OR PARTNERSHIP
24.1 Nothing contained in this Agreement and no actions taken by the Parties
under this Agreement shall constitute a partnership, joint venture,
association or other co-operative entity between the Parties or to
authorise either Party to represent the other or to contract on behalf of
the other Party. The Supplier is acting solely as an independent
contractor and is not an agent of the Purchaser. The Supplier's provision
of services and performance of its duties hereunder shall be under the sole
supervision, control and direction of the Supplier and not the Purchaser.
37 PERNIS SNR FORWARD SUMF (RESINS)
ARTICLE 25: REMEDIES AND WAIVER
25.1 The delay or failure of either Party at any time in exercising any right,
power or remedy provided by law or under this agreement shall in no way:
(A) affect that right, power or remedy; or
(B) operate as a waiver of it.
25.2 The single or partial exercise of any right, power or remedy provided by
law or under this Agreement shall not preclude any other or further
exercise of it or the exercise of any other right, power or remedy.
25.3 The rights, powers and remedies provided in this Agreement are cumulative
and not exclusive of any rights, powers and remedies provided by law.
25.4 The Parties acknowledge that each of them has had adequate opportunity and
bargaining strength to review, negotiate and revise this Agreement to its
satisfaction. They each expressly agree that the normal rule of
construction to the effect that any ambiguities are to be resolved against
the drafting Party shall not be employed in the interpretation of this
Agreement.
ARTICLE 26: ENTIRE AGREEMENT AND VARIATION
26.1 This Agreement constitutes the entire and only agreement between the
Parties relating to the furnishing of SUMF Items by the Supplier to or for
the Purchaser at the Site and supersedes any Pre-contractual Statement.
26.2 Each of the Parties acknowledges on its own behalf and on behalf of each of
its Affiliates that, in agreeing to enter into this Agreement, it has not
relied on any Pre-contractual Statement or any statement contained in any
Transaction Document or the IPTLA (except those set out in this Agreement).
26.3 Without limiting any rights under any of the Transaction Documents or the
IPTLA, each Party waives all rights and remedies which, but for this
Article, might otherwise be available to it in respect of any such Pre-
contractual Statement, provided that nothing in this Article shall limit or
exclude any liability for fraud.
26.4 Any amendment or modification of this Agreement shall be ineffective unless
reduced to writing and signed by or on behalf of a duly authorised
representative of each of the Parties.
ARTICLE 27: NOTICES
27.1 All notices, requests, waivers, demands, directions and other
communications required or permitted to be given under this Agreement shall
be in writing and in English. This
38 PERNIS SNR FORWARD SUMF (RESINS)
provision shall not prevent communications relating to the operations of
the Plant from being made in the language spoken in the jurisdiction in
which the Plant is situated. Notices may be given in electronic form
(including facsimile transmission and telex communications and e-mail) and
shall be delivered personally, sent by facsimile transmission, or e-mail,
sent by nationally recognized overnight courier or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the other
Parties at their addresses set forth in the introductory paragraphs of this
Agreement (or such other address for a Party as shall be specified by like
notice from such Party to the other Party) and, in the case of the
Purchaser with copies to:
Shell Epoxy Resins, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Apollo Management IV, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and other communications shall be deemed to have been
given and received, (i) in the case of personal delivery, delivery by
facsimile transmission or e-mail, on the date of delivery, if delivered
during business hours on a business day or, if not so delivered, the next
succeeding business day (ii) in the case of delivery by nationally
recognized overnight courier, on the second business day following dispatch
and (iii) in the case of mailing, on the fifth business day following such
mailing.
27.2 A Party may change its notice details on giving notice to the other Party
of the change in accordance with this ARTICLE 27. That notice shall only
be effective on the date falling three (3) clear Business Days after the
notification has been received or such later date as may be specified in
the notice. Any notice so delivered will comply with the terms of this
ARTICLE 27.
ARTICLE 28: GOVERNING LAW
28.1 This Agreement shall be governed by and construed in accordance with the
laws of England.
28.2 A person who is not a party to this Agreement has no right under the
Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement.
39 PERNIS SNR FORWARD SUMF (RESINS)
ARTICLE 29: LANGUAGE
29.1 If this Agreement is translated into any language other than the English
language, the English version of this Agreement shall prevail.
ARTICLE 30: COUNTERPARTS
30.1 This Agreement may be executed in any number of counterparts, and by the
Parties on separate counterparts, but shall not be effective until each
Party has executed at least one counterpart.
30.2 Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same instrument.
[INTENTIONALLY LEFT BLANK]
40 PERNIS SNR FORWARD SUMF (RESINS)
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first above written.
Signed by: Illegible )
)
For and on behalf or )
SHELL EPOXY RESINS )
NEDERLAND B.V. )
Signed by: Illegible )
)
For and on behalf of )
SHELL NEDERLAND )
RAFFINADERIJ B.V. )
PERNIS SNR FORWARD SUMF (RESINS)
