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As Of Filer Filing For·On·As Docs:Size 5/14/18 Hexion Inc. 10-Q 3/31/18 73:11M |
Document/Exhibit Description Pages Size
1: 10-Q Quarterly Report HTML 758K
2: EX-10.1 2018 Incentive Compensation Plan HTML 40K
3: EX-10.2 Deer Park Site Servces, Utilities, Materials and HTML 244K
Facilities Agreement
4: EX-10.3 Moerdijk Vad Site Services, Utilities, Materials HTML 258K
and Facilities Agreement
5: EX-10.4 Pernis Vad Site Services, Utilities, Materials and HTML 269K
Facilities Agreement
6: EX-10.5 Pernis Beri Site Services, Utilities, Materials HTML 271K
and Facilities Agreement
7: EX-10.6 Assignment and Assumption of Deer Park Ground HTML 35K
Lease and Extension
8: EX-10.7 Assignment and Extension of Amended and Restated HTML 37K
Agreement of Pernis Sublease
9: EX-10.8 First Amended and Restated Moerdijk Agreement of HTML 71K
Lease
10: EX-10.9 Extension of Amended and Restated Agreement of HTML 31K
Moerdijk Lease
11: EX-31.1(A) Section 302 CEO Certification HTML 29K
12: EX-31.1(B) Section 302 CFO Certification HTML 29K
13: EX-32.1 Section 906 CEO & CFO Certification HTML 25K
20: R1 Document and Entity Information Document HTML 41K
21: R2 Condensed Consolidated Balance Sheets HTML 146K
22: R3 Condensed Consolidated Balance Sheets HTML 42K
(Parentheticals)
23: R4 Condensed Consolidated Statements of Operations HTML 61K
24: R5 Condensed Consolidated Statements of Comprehensive HTML 34K
Income
25: R6 Condensed Consolidated Statements of Cash Flows HTML 110K
26: R7 Condensed Consolidated Statement of Equity HTML 35K
(Deficit)
27: R8 Background and Basis of Presentation HTML 28K
28: R9 Significant Accounting Policies HTML 124K
29: R10 Restructuring (Notes) HTML 51K
30: R11 Related Party Transactions HTML 77K
31: R12 Fair Value HTML 52K
32: R13 Debt Obligations HTML 78K
33: R14 Commitments and Contingencies HTML 72K
34: R15 Pension and Postretirement Expense HTML 59K
35: R16 Disposition (Notes) HTML 26K
36: R17 Segment Information HTML 91K
37: R18 Changes in Accumulated Other Comprehensive Income HTML 44K
Level 1 (Notes)
38: R19 Income Taxes (Notes) HTML 30K
39: R20 Guarantor Non-Guarantor Subsidiary Financial HTML 577K
Information
40: R21 Significant Accounting Policies Level 2 (Policies) HTML 177K
41: R22 Significant Accounting Policies Level 3 (Tables) HTML 114K
42: R23 Restructuring (Tables) HTML 48K
43: R24 Related Party Transactions Level 3 (Tables) HTML 70K
44: R25 Fair Value Level 3 (Tables) HTML 45K
45: R26 Debt Obligations Level 3 (Tables) HTML 75K
46: R27 Commitments and Contingencies Level 3 (Tables) HTML 53K
47: R28 Pension and Postretirement Expense Level 3 HTML 59K
(Tables)
48: R29 Segment Information Level 3 (Tables) HTML 85K
49: R30 Changes in Accumulated Other Comprehensive Income HTML 44K
Level 3 (Tables)
50: R31 Guarantor Non-Guarantor Subsidiary Financial HTML 575K
Information Level 3 (Tables)
51: R32 Background and Basis of Presentation Level 4 HTML 23K
(Details) - Number of Reportable Segments
52: R33 Significant Accounting Policies Level 4 (Details) HTML 94K
53: R34 Restructuring Restructuring and Cost Reduction HTML 44K
Programs (Details)
54: R35 Restructuring Changes in liabilities recorded HTML 30K
related to contract termination costs and ARO
(Details)
55: R36 Related Party Transactions Level 4 (Details) HTML 69K
56: R37 Fair Value Level 4 (Details) - Fair Value of Debt HTML 35K
57: R38 Debt Obligations Level 4 (Details) HTML 77K
58: R39 Commitments and Contingencies Level 4 (Details) - HTML 68K
Environmental Liabilities
59: R40 Commitments and Contingencies Level 4 (Details) - HTML 27K
Non-Environmental Liabilities
60: R41 Pension and Postretirement Expense Level 4 HTML 44K
(Details) - Components of net pension and
postretirement expense benefit
61: R42 Disposition (Details) HTML 26K
62: R43 Segment Information Level 4 (Details) - Revenues HTML 45K
by Segment
63: R44 Segment Information Level 4 (Details) - EBITDA by HTML 30K
Segment
64: R45 Segment Information Level 4 (Details) - HTML 58K
Reconciliation of Segment EBITDA to Net Income
65: R46 Changes in Accumulated Other Comprehensive Income HTML 42K
Level 4 (Details) - Summary of Changes in
Accumulated Other Comprehensive Income
66: R47 Income Taxes (Details) HTML 28K
67: R48 Guarantor Non-Guarantor Subsidiary Financial HTML 34K
Information Level 4 (Details) - Additional
Information
68: R49 Guarantor Non-Guarantor Subsidiary Financial HTML 208K
Information Level 4 (Details) - Consolidating
Balance Sheets
69: R50 Guarantor Non-Guarantor Subsidiary Financial HTML 97K
Information Level 4 (Details) - Consolidating
Statement of Operations
70: R51 Guarantor Non-Guarantor Subsidiary Financial HTML 94K
Information Level 4 (Details) - Consolidating
Statement of Cash Flows
72: XML IDEA XML File -- Filing Summary XML 118K
71: EXCEL IDEA Workbook of Financial Reports XLSX 77K
14: EX-101.INS XBRL Instance -- msc-20180331 XML 3.42M
16: EX-101.CAL XBRL Calculations -- msc-20180331_cal XML 188K
17: EX-101.DEF XBRL Definitions -- msc-20180331_def XML 820K
18: EX-101.LAB XBRL Labels -- msc-20180331_lab XML 1.37M
19: EX-101.PRE XBRL Presentations -- msc-20180331_pre XML 947K
15: EX-101.SCH XBRL Schema -- msc-20180331 XSD 171K
73: ZIP XBRL Zipped Folder -- 0000013239-18-000015-xbrl Zip 245K
| Exhibit |
PERNIS BERI SITE SERVICES, UTILITIES, MATERIALS AND
FACILITIES AGREEMENT |
1. | HEXION
B.V., a company incorporated under the laws of The Netherlands with its registered office at Seattleweg 17, building 4, 3195 ND Pernis - Rotterdam, The Netherlands (the "Purchaser"); and |
2. | SHELL NEDERLAND RAFFINADERIJ B.V., a company incorporated under the laws of The Netherlands with its registered office at Vondelingenweg 601, 3196 KK Vondelingenplaat, Rotterdam, The Netherlands (the "Supplier"). |
(A) | The
Supplier or Affiliates of the Supplier operate the Site; |
(B) | The Purchaser owns and operates the Plant; |
(C) | The Parties (or their Affiliates) have entered into a First Amended and Restated Pernis Site Services, Utilities, Materials and Facilities Agreement with an effective date of November 1, 2000 for the supply and purchase of certain SUMF Items pertaining to the Plant (as amended from
time to time) (the “Prior SUMF Agreement”); and |
(D) | The Supplier and the Purchaser desire to enter into a new Pernis BERI Site Services, Utilities, Materials and Facilities Agreement on the terms contained herein in order to facilitate for the Purchaser the operation of its Plant and upon entrance into this Agreement, the Prior SUMF Agreement shall terminate and be of no further force or effect. |
(b) | a company (other than the Party itself) which is, from time to time, directly or indirectly controlled by the Ultimate Parent Company; or |
(c) | in
the case of a Party which does not have an Ultimate Parent Company, a company which is for the time being directly or indirectly controlled by that Party; |
(i) | “Ultimate Parent Company” means, in relation to a Party, a company that directly or indirectly controls such Party, but shall not include any private equity or other investment fund, nor any person that manages such funds, or individuals which directly or indirectly hold a majority interest in the Party, instead the Ultimate Parent Company shall be the legal entity in
which such funds are invested and/or which exercises direct or indirect control of the Party; and, for Purchaser, the Ultimate Parent Company shall be Hexion Inc., and, for Supplier, the Ultimate Parent Company shall be Royal Dutch Shell plc; |
(ii) | a company is directly controlled by another company if the latter company (but excluding private equity or other investment funds, including any person that manages such funds, and individual investors) beneficially owns fifty per cent (50%) or more of either the issued share capital or the voting rights attached to the issued share capital of the first mentioned company or otherwise has the power to direct or cause the direction of the management of the first mentioned company by contract,
as trustee or otherwise; and |
(iii) | a company is indirectly controlled by another company if a series of companies can be specified, beginning with the latter company and ending with the first mentioned company, which are so related such that each company of the series (except the latter company) is directly controlled by one or more of the companies earlier in the series; |
(a) | The
Shell HSSE Control Framework |
(b) | The Shell Process Safety Fundamentals |
(c) | The Shell Life Saving Rules |
(d) | The Supplier’s (SNR) site HSSE policies; |
(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" and "EURO" are to United States Dollars, 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; |
(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 Sub-schedules, the relevant Schedule or Sub-schedule shall prevail, in relation to that Schedule, unless expressly stated otherwise in this Agreement. |
2.4 | Purchaser
and Supplier acknowledge that (notwithstanding any provision to the contrary in this Agreement), the provisions of Section 10.3 of 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 Section 11.1 of the Environmental Agreement. Any obligation or liability of any SER Indemnified Party, including Purchaser, or Seller Indemnified Party, including Supplier, 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. Further, Supplier acknowledges that, pursuant to its rights under Section 11.1 of the Environmental Agreement and a separate Agreement of Assignment
of even date herewith, Hexion Inc. (as successor-in-interest to SER) has assigned its rights and obligations under the Environmental Agreement, as they relate to the BERI business at the Site, to Purchaser and the Purchaser has accepted the assignment of such rights and obligations and has assumed all of Hexion Inc.’s (as successor of SER) rights and obligations under the Environmental Agreement as they relate to the BERI business at the Site as set forth in such Agreement of Assignment. This Agreement in no way limits, expands, alters or otherwise modifies the terms of the Environmental Agreement, and the provisions of the Environmental Agreement prevail over any conflicting provisions in this Agreement. |
4.1 | The SUMF Items (which cover the supply of utilities and the provision of services) to be supplied or performed by the Supplier to/for the Purchaser, under this Agreement are listed under the relevant Schedules and Sub-schedules to this Agreement. |
4.2 | A description and, where appropriate, the specific provisions for each SUMF Item (such as technical Specifications, Firm Capacity Reservation, tolerance, category of SUMF, measurement,
Delivery Point, delivery terms, the SUMF Charges, specific termination notices, specific exclusions and limitations, if any, on consumption and supply, interval of efficiency discussions, Meters), and such other details as this Agreement may require or as the Parties may agree, of each SUMF Item are set out in the relevant Schedule and Sub-schedule. |
4.3 | 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. |
4.4 | Title to and risk of loss of a relevant SUMF Item shall pass from the Supplier to the Purchaser at the Delivery Point(s) specified in the relevant Schedule and Sub-schedule. |
4.5 | 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 relevant 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. |
4.6 | In the performance of their obligations under this Agreement the Parties shall act in good faith and in substantial compliance with all applicable laws. |
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 as specified in Article 6. 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 and which shall be charged to the Purchaser as separate line items in the invoices. The Purchaser shall also bear its proportionate share of 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 Sub-schedules and Article 5.1. |
6.1 | SUMF Charges calculated on the basis of the Site Usage Fee: |
6.2 | SUMF Charges calculated on the basis of the Cost Structure Fee: |
(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 actual use of such SUMF
Item compared to the total Site usage of such SUMF Item or the other relevant allocation key or keys specified in Schedule 6.2; and |
(iii) | the capital charge, depreciation charge and capital improvements charges specified in the relevant Sub-schedules of Schedule 6.2. |
6.3 | SUMF Charges calculated on the basis of Price Formulae: |
6.4 | Where SUMF Charges are to be calculated on the basis of the Cost Structure Fee, the following shall apply: |
(A) | [Intentionally
omitted] |
(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. |
(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 Cost Accounting Practices for its Financial Reporting Accounts is attached hereto in Schedule 3. The Supplier may modify the Supplier’s 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. |
(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, but less any amount of such termination costs covered by the User whose reduction or termination gave rise to the cost reduction efforts, to the extent such amount exceeds such User’s proportionate share. |
(E) | The Purchaser shall bear the costs of any redundancy program 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. |
(F) | If under applicable tax or other laws, the Supplier must charge a mark-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 mark-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, the Parties shall keep accurate books and records of their activities relevant to this Agreement, for a period of at least two (2) years or such longer period as may be required by law. |
(H) | Audit
rights: To verify (i) the correctness of all invoices issued and payments made for any of the two previous calendar years (“Y-2” and “Y-1”) and/or (ii) to verify the implementation of the Supplier's Curtailment procedures during such two previous calendar years, and/or (iii) to verify the other Party's meter readings registered during the two previous calendar years, and/or (iv) to verify compliance with the Supplier’s Cost Accounting Practices as specified in Schedule 3, a Party shall have the right (but no more than once) in a calendar year Y, to commence an audit via a mutually agreed-upon and jointly appointed independent accounting firm of international repute. |
7.1 | The Purchaser shall pay the SUMF Charges in the currency specified in Schedule 1. |
(A) | Beginning on January 1 of each year, the SUMF Charges shall be invoiced in the amounts as calculated in accordance with Article 6 and based on the Annual Plan and Budget for such year. |
(B) | The
quantities of the SUMF Items delivered in the month of delivery shall be those quantities delivered or received from 00:00 hrs the first (1st) day of the month of delivery to 24:00 hrs the last day of the month of delivery. |
(C) | The Purchaser shall pay each invoice on or before the last day of the month of issue of the relevant invoice (“Due Date”). From and including the day immediately following the Due Date, interest will accrue on the undisputed invoice amount at the Default Rate. |
(D) | If
the Purchaser disputes an amount invoiced for SUMF Charges, by issuing a notice to dispute an invoice (“Invoice Dispute Notice”), the Purchaser may withhold from payment the portion of any amount that is disputed and the Purchaser shall, within forty-five (45) Business Days of the date of receipt of the relevant invoices, send to the Supplier a written Invoice Dispute Notice containing the reason(s) in sufficient detail why the Purchaser considers the SUMF Charges not to be due. |
• | Within thirty (30) Business Days after receipt of the Invoice Dispute Notice, the Supplier shall advise the Purchaser of its position with respect to the Invoice Dispute Notice and,
shall invite the Purchaser to meet to discuss the Dispute. |
• | The Purchaser shall then within thirty (30) Business Days either accept the Supplier’s response or give written notice to the Supplier that the Purchaser continues to dispute such invoice. |
• | Upon receipt by the Supplier of Purchaser’s notification that he continues to dispute the invoice, the Parties shall in good faith attempt to resolve the Dispute with respect to the invoice as expeditiously as possible and they shall meet within thirty (30) Business Days after the
date of receipt by the Supplier of aforementioned notification from the Purchaser. |
• | If in consequence it is determined and agreed that any part of the disputed amount was properly due, the Purchaser shall pay to the Supplier the amount due plus the Interest Rate from the date the amount ought to have been paid. Where the Purchaser elects to make payment of such disputed amount, and it is determined and agreed that any part of the disputed amount was not properly due, the Supplier shall refund the relevant amount to the Purchaser plus the Interest Rate from the date the amount was originally paid to the Supplier. |
• | If
the Parties fail to resolve the Dispute within thirty (30) Business Days after the date when the Parties met, the Dispute shall be submitted for resolution in accordance with the principles set out in Article 19. |
(E) | Any refund of any invoice amount, or payment of any disputed invoice amount, shall be promptly made following the 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. |
(F) | 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 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 EUR 50,000, whichever is the greater, the Supplier shall inform the Purchaser accordingly about the latest variations estimates and 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; TRUE UP PROCESS; CURTAILMENT |
8.1 | Annual Forecast |
8.2 | Annual Plan and Budget |
8.3 | Following receipt by the Purchaser of the Draft Annual Plan and Budget, the Parties shall consult and shall each use all reasonable endeavors to reach agreement thereon. Upon the approval of both Parties, the draft Annual Plan and Budget becomes the new Annual Plan and Budget (the “New 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 unapproved draft Annual Plan and Budget, shall be used until the New Annual Plan and Budget is approved. |
8.5 | If Parties fail to come to an agreement on the New Annual Plan and Budget by the 60th day from the commencement of the relevant calendar year the matter shall be referred for resolution in accordance with Article 19. |
8.6 | Annual
True-up Process for the SUMF Items set out under Schedules 6.2 and 6.3 |
No later than 90 days (unless mutually agreed otherwise), after the start of a calendar year Y, the Supplier shall submit to the Purchaser, the True-Up Amount. |
8.7 | Curtailment |
A. | Other
than Loss or Damage covered by the Environmental Agreement, each Party shall be responsible for any Loss or Damage to such Party’s Property (including any SUMF Asset) arising out of or resulting from the performance or nonperformance of this Agreement, except to the extent such Loss or Damage arises out of or results from the Gross Negligence or Willful Misconduct of the other Party. |
B. | Other than Loss or Damage covered by the Environmental Agreement, each Party shall be responsible for any Loss or Damage to any Employee or Contractor of such Party arising out of or resulting from the performance or nonperformance of this Agreement, except to the extent such Loss or Damage arises out of or results from
the Gross Negligence or Willful Misconduct of the other Party. |
C. | Other than Loss or Damage covered by the Environmental Agreement, each Party waives and releases the other Party from and against any and all Liability to such Party for Loss or Damage to such Party’s Property (excluding any SUMF Asset to the extent set forth in Article 14) and any Employee or Contractor of such Party arising out of or resulting from the simple negligence (but not the Gross Negligence or Willful Misconduct) of the other Party. |
A. | any and all Loss or Damage to any of Indemnifying Party’s Employees or Contractors arising out of or resulting from the performance or nonperformance of this Agreement, other than any Loss or Damage arising out of or resulting from Indemnified Party’s Gross Negligence or Willful Misconduct; |
B. | any
and all Loss or Damage to any of Indemnified Party’s Employees or Contractors arising out of or resulting from Indemnifying Party’s Gross Negligence or Willful Misconduct in connection with the performance or nonperformance of this Agreement; |
C. | any and all Loss or Damage to any of Indemnified Party’s Property (including any SUMF Asset) arising out of or resulting from Indemnifying Party’s Gross Negligence or Willful Misconduct in the performance or nonperformance of this Agreement; |
D. | any
and all Loss or Damage arising out of or resulting from any Third-Party Claim (other than a Third-Party Claim arising out of or resulting from Loss or Damage to any of either Party’s Employees or Contractors) arising out of or resulting from Indemnifying Party’s fault or negligence in the performance or non-performance of this Agreement, other than any Loss or Damage arising out of or resulting from Indemnified Party’s Gross Negligence or Willful Misconduct. |
A. | Indemnifying Party shall not be obligated to pay for any Loss or Damage under this Article 9 (other
than for Third-Party Claims) until the amount of such Loss or Damage for that claim exceeds a threshold, in the aggregate, of one-hundred thousand Euro (€ 100,000), in which event Indemnifying Party shall pay or be liable for all such Loss or Damage from the first Euro. The Threshold shall be adjusted annually on January 1 to compensate for inflation as reflected in the Inflation Index. |
B. | Notwithstanding anything to the contrary in this Agreement, Indemnifying Party shall not be obligated to indemnify, defend, or hold harmless Indemnified Party against any Indemnification Claim pursuant to Article 9.2. (whether a direct claim or a Third-Party Claim) if
such Indemnification Claim or corresponding Loss or Damage arises out of or results from Indemnified Party’s Gross Negligence or Willful Misconduct. |
C. | Except for Claims under the Environmental Agreement, the Indemnified Party must submit to the Indemnifying Party any claim pursuant to Article 9.2. (whether a direct claim or a Third-Party Claim) within three (3) years after the date on which the Indemnified Party had or should have had knowledge of any Loss or Damage, Third-Party Claim, or discovery of facts or circumstances upon which Indemnified Party could base a claim under Article 9.2. |
D. | For
the avoidance of doubt, Indemnified Party must make a claim under Article 9.2. within such three (3) year period, after which time, the Indemnified Party waives any such Indemnification Claim, and that Indemnification Claim shall not be brought or initiated by Indemnified Party against Indemnifying Party thereafter. |
E. | Without prejudice to anything to the contrary in the Agreement, a Party’s total liability to the other for any claim arising out of or in connection with the Agreement including without
limitation for breach of contract, breach of warranty, breach of statutory duty, or tort, shall not exceed the price of the relevant quantity of the SUMF Item if delivered (in case of supply of utilities, materials) or the price of the relevant service (in case of supply of services, facilities) if performed or if liability arises from a failure to deliver or to take delivery or to perform, the price of the relevant quantity of the SUMF Item had it been delivered (in case of supply of utilities, materials) or the price of the relevant service had it been performed (in case of supply of services, facilities). This limitation shall not apply in respect of liabilities resulting from Third-Party Claims, or from cases of fraud, Willful Misconduct and/or Gross Negligence. |
F. | With
respect to any SUMF Items the provision of which requires Supplier to procure utilities from a Third-Party as indicated in the relevant Schedules or Sub-schedules, Supplier’s liability to Purchaser for any Loss or Damage incurred due to Supplier’s failure to provide such SUMF Item, when and to the extent such failure is due in whole or in part to the failure of the Third-Party utility provider to perform, will be limited to the amount Supplier is contractually, or statutorily, permitted to recover from such Third-Party utility provider, without regard to the amount, if any, actually recovered by Supplier from such Third-Party utility provider. This limitation of liability shall not apply in respect of liabilities resulting from Third-Party Claims under Article 9.2 (D). |
9.4 | Sole Remedy. Article 9 sets forth the entire liability and obligations of the Indemnifying Party and the sole and exclusive remedy for the Indemnified Party for any Loss or Damage specifically covered under Article 9; Nothing in Article 9 shall limit any Person’s right to seek and obtain any equitable relief to which such Person shall be entitled or to seek any remedy on account of any Person’s fraudulent or criminal misconduct. |
A. | Notice of Indemnification Claims. The Indemnified Party shall promptly give written notice to Indemnifying Party after obtaining knowledge of any Loss or Damage, Third-Party Claim, or a request for indemnification under Article 9.2 (“Indemnification Notice”); provided however, that no delay on the part of the Indemnified Party shall relieve Indemnifying Party from any Liability or obligation under this Article 9 except to the extent that Indemnifying Party is prejudiced by such failure to give prompt notice. The Indemnification Notice shall contain all material information known to the Indemnified
Party with respect to such Indemnification Claim, including without limitation, a description of the Indemnification Claim and the nature and amount of the related Loss or Damage (to the extent that the nature and amount of the Loss or Damage are known at the time). If the Indemnification Claim is a Third-Party Claim, the notice shall also include copies of materials submitted to Indemnified Party by the Third-Party with respect to such Third-Party Claim. |
B. | Procedure for Third-Party Claims. The obligations and liabilities of each Party with respect to Third-Party Claims shall be subject to the following terms and conditions: |
A. | Each Party will arrange as a minimum the insurances set out below and ensure that those insurances are in full force and effect throughout the duration of the Agreement. All such insurances will be placed with reputable and substantial insurers and for all insurances other than Employers Liability Insurance/Worker’s Compensation, to
the extent a Party does not self-insure pursuant to Article 9.6 (D), and to the extent of the liabilities and obligations of a Party, will include the other Party as additional insured. |
• | Employers Liability Insurance/Worker’s Compensation: USD 1 million per occurrence; |
• | Motor Third-Party Liability: USD 1 million per occurrence; |
• | General
Liability: USD 10 million per occurrence; |
• | Such further insurance as may be required by law per occurrence. |
B. | To the maximum extent permitted by applicable law, all insurances required herein will be endorsed to provide, or shall otherwise provide, that underwriters waive any rights of recourse, including in particular subrogation rights against the other Party in relation to the Agreement to the extent of the liabilities and obligations of the insured Party under this Article
9. |
C. | The provisions of this Article 9.6 will in no way limit a Party’s liability under the Agreement. |
D. | Notwithstanding the foregoing, the Supplier shall have the right to self-insure for insurance as required pursuant to this Article 9.6(A) above, through its wholly owned, captive insurer in which case the insurance
requirements above shall not apply. Further, all insurance required of Purchaser may be carried under blanket policies which may include (i) deductible levels deemed appropriate by Purchaser (for Employer’s Liability Insurance/Worker’s Compensation and Motor Third-Party Liability), or (ii) levels of self-insured retention up to Ten Million Dollars ($10,000,000) deemed appropriate by Purchaser or (iii) levels of self-insured retention greater than Ten Million Dollars deemed appropriate by Purchaser, with Suppliers consent, not to be unreasonably withheld. |
E. | Each Party shall, upon request of the other Party produce the relevant insurance certificates as proof of insurance. |
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 fifteen (15) 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 | Termination by the Purchaser of the Agreement in
its entirety |
(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; and |
(B) | without
prejudice to Article 10.7, with at least twelve (12) month’s prior written notice, following the Purchaser’s notification to the Supplier of its decision to discontinue its Plant operations; |
(C) | with three (3) years' prior written notice effective at the end of the initial period of fifteen (15) years or at the end of any extension period of five (5) years, as the case may be. |
10.3 | Termination
by the Purchaser of an individual SUMF Item |
(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 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) | [Intentionally Omitted] |
(D) | with twelve (12) months’ prior written notice, for the termination of the SUMF Items pursuant and subject to Article 10.7; |
(E) | with
three (3) year’s prior written notice or such other notice period as is provided in a relevant Schedule; 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 supplier or vendor to Supplier) that occur with respect to such particular SUMF Item during any twelve (12) months period. |
10.4 | Reduction
of the Firm Capacity Reservation by the Purchaser |
10.5 | Termination by the Supplier of the Agreement in its entirety |
(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, without proper justification 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(D) or Article 19, and has 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 sent to the Purchaser by the Supplier whereby the latter informs
the Purchaser about his decision 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 period of fifteen (15) years or at the end of any extension period of five (5) years, as the case may be. |
10.6 | Termination
by the Supplier of an individual SUMF Item |
(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(D) or Article
19, and has made 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 and does so cease such supply and such SUMF Item is not a Sole Supplier SUMF Item; |
(D) | [Intentionally
Omitted]; |
(E) | with three (3) years' prior written notice effective at the end of the initial period of fifteen (15) years or at the end of any extension period of five (5) years, as the case may be; |
(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 | Specific termination for certain SUMF Items |
10.8 | SUMF Item Physical Disconnection Costs |
10.9 | Employment Costs |
10.10 | Indemnification |
(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 |
(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 10.10; and (iv) and notwithstanding the provisions of Article 10.10(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). |
10.11 | Mitigation |
10.12 | Termination is 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, 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 Purchaser’s Plant, the Supplier shall provide a final reconciliation of SUMF Charges. Any overcharges or undercharges shall be paid by the Party owing the same within forty-five (45) 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 Interest Rate. The Parties shall meet to resolve any dispute relating to the final reconciliation in
accordance with the process described under Article 7.2(D). |
10.15 | Termination of this Agreement as to the Purchaser’s Plant 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
anything in this Agreement to the contrary, the Purchaser or the Supplier may terminate this Agreement in its entirety, or reduce or terminate the supply or utilization of any Firm Capacity Reservation or SUMF Item, at no cost whatsoever, if such termination or reduction is ordered by a court or arbitration body in the circumstances set out under Article 6:258 BW of the Dutch Civil Code. |
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. |
12.1 | Subject
to Article 12.2, each Party shall treat as strictly confidential (and shall not disclose) the terms of this Agreement and 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 and on a need to know basis to the Parties’ officers, directors, employees, contractors, agents and 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 on a need to know basis to an Affiliate
or Affiliates and their officers, directors, employees, contractors, agents; |
(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, the Pernis Lease or the Environmental Agreement, or to satisfy an obligation or duty under this Agreement, the Pernis Lease or the Environmental Agreement. |
12.3 | If the Purchaser should wish to disclose confidential information to a potential Third-Party operator and/or buyer of the Plant, it shall first provide notice to the Supplier as to the information that it intends to disclose and reasonable evidence that any intended recipient shall be bound by obligations of confidentiality and use similar in scope to those set forth in this Article 12. |
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". |
13.1 | Purchaser’s
Optional Capital Improvement Project. |
13.3 | Capital Improvement Projects |
(a) | results in savings of costs (whereby for the purpose of this Article 13.3, “savings of costs”
means: a saving of two percent (2%) or more on the annual average of the Medium Pressure (MP) steam formula price), the savings will result in pro rata adjustment of the relevant formulae coefficients as specified in the relevant Schedules; and |
(b) | doesn’t generate savings of costs, but results in additional costs, each Party shall take on its allocated share of the costs, if any, resulting from such capital improvement project in proportion to the percentage of the total costs and expenses of such project paid by such Party. |
13.4 | If a capital improvement to a SUMF Asset is required by applicable law or HSSE regulations solely because of the Purchaser's process or a change in Purchaser’s operations, products or by-products, the costs directly related to such capital improvement shall be borne by the Purchaser. However, the foregoing shall not be applicable to any projects undertaken as a result of Purchaser’s exercise of its rights under Article
10.7, as cost sharing relating thereto shall be included in either the applicable termination notice period of 3 years or liquidated damages as set forth in Article 10.7. |
13.5 | Capital improvement project cost amounts payable by the Purchaser pursuant to Article 13.3 are payable over a period of time in the form of depreciation charge and capital expense as further described in the relevant allocation key agreed to by the Parties on an annual basis as part of the Annual Plan and Budget process, without prejudice to any revision to such allocation keys as part of the Annual True-Up Process
and as further referenced in Schedules 6.2 and 6.3. |
13.6 | Periodic Reviews |
14.1 | Capital Project - Restoration. |
14.2 | [Intentionally omitted] |
14.3
| A Party causing damage to or destruction of a SUMF Asset as a result of its Gross Negligence or Willful Misconduct shall, in addition to any obligations under Article 9, be liable to the other Party for any incremental costs of the related alternative SUMF Item so that the Users of such SUMF Item, other than such Party or its Affiliates, pay the same amount for such SUMF Item as such Users paid prior to the damage or destruction of such SUMF Asset. The provisions of this Article 14.3 shall be without prejudice to the Parties rights under Article 9. |
15.1 | Measurement and Metering: The quantities of certain SUMF Items supplied hereunder shall be measured by the Meter(s) installed at the expense of the Supplier. Supplier shall read the Meter(s) on a regular basis as described in the relevant Schedules 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 | Calibration:
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 the relevant Schedule for each SUMF Item 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 the relevant Schedule, 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. |
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 | If
required, the Parties shall complete promptly the identification of all receipt and Delivery Points for the various SUMF Items described in the applicable Schedule and all drawings related thereto. |
15.7 | If there is no Meter at a Delivery Point a mutually agreed allocation method 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 6.3 and Schedule 3. |
16.1 | Joint Operating Committee: 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 | Steering
Committee: The Supplier and the Purchaser shall jointly establish the Steering Committee. The structure and role of the Steering Committee is set out in Schedule 5. |
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 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 | HSSE
standards and regulations: The Parties shall ensure that the manufacture, delivery and off-take of SUMF Items under this Agreement shall take place in accordance with the Shell HSSE and Technical Standards and with all applicable regulations as to avoid harm to people and/or the environment and, if relevant, that no SUMF Item, if applicable, and/or contaminated water enters drainage, sewage systems, water courses or soil. |
17.3 | Planned Shutdowns: for the purpose of this Agreement, a planned shutdown (“Planned
Shutdown(s)”) shall mean the shutting down of a relevant plant for the purpose of scheduled/regular maintenance and cleaning activities and which is typically scheduled with respect to any individual unit once every 4 to 6 years’ period. |
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. |
17.5 | Parties
agree to comply with the anti-bribery or anti-money laundering principles set out in Schedule 7. |
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 (and in any event no later than seven (7) days following the occurrence) notifies the other Party of the circumstances giving rise to Force Majeure and the cause and their anticipated duration; The affected Party shall notify the other Party as soon as reasonably possible upon the occurrence of a Force Majeure Event, indicating to the extent possible, the estimated duration; and |
(C) | The
Parties shall shortly thereafter meet to discuss possible business continuity measures to eliminate or minimise the impact of such Force Majeure Event. The Parties shall promptly implement any business continuity measures upon which they agree. The affected Party shall mitigate the effects thereof (if possible), and take Reasonable Actions to remedy and overcome the cause of the Force Majeure and resume the full performance of its obligations as soon as reasonably possible after the Force Majeure Event has ended. |
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: |
(A) | fire, explosion or other disruption, mechanical breakdown, electrical shortage or blackout, decline or shortages of supply, and circumstances arising out of information technology; and |
(B) | any
malfunction, unplanned shutdown or shutdown in anticipation of or in response to a breakdown or to a malfunction affecting a Plant; |
(C) | act of God (e.g. such as lightning, storm, earthquake, typhoon, hurricane, flood, tidal wave or other serious natural catastrophe), fire, explosion, or landslide; |
(D) | war or serious civil unrest and disasters (e.g. revolution, act of civil or military authority, riot, blockade, embargo, trade sanction,
terrorist attack, rebellion, sabotage, civil commotion, epidemic or quarantine restriction, strike, or other industrial dispute); |
(E) | compliance with law or governmental action or compliance with any restriction resulting from such action (such as law, regulation, or ordinance, or with any order, demand or request of any international, national, local, governmental authority or agency requiring e.g. to cease production or sale of a Utility or the performance of a Common Service); |
(F) | any
strike, lock-out, or labor dispute from whatever cause (whether or not Supplier, Supplier’s supplier, Purchaser, or Purchaser’s supplier, as the case may be, is a |
(G) | any inability to acquire from any one of its usual supply source(s) for this Agreement, any SUMF Item or any raw material, feedstock, labor, service, utility, equipment, machinery, or facility necessary for delivering a SUMF Item. |
19.1 | Any
Dispute arising out of or in connection with this Agreement, and without prejudice to Invoice Disputes Notices subject to Article 7.2(D), shall be exclusively processed in accordance with this Article. |
19.2 | In the event of a Dispute, the Joint Operating Committee shall, within thirty (30) days of a written request by either Party (or any other period as mutually agreed between the Parties) to the other Party, meet as and when needed and in good faith to resolve such dispute or differences. The Parties shall provide the Joint Operating Committee with such information as it reasonably required to enable it to determine the issues relevant to the Dispute. |
19.3 | Any
Dispute which cannot be resolved within thirty (30) days (or any other mutually agreed interval) by the Parties after the Joint Operating Committee’s first meeting held to solve such Dispute shall be submitted by the Parties 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. |
19.4 | Any Dispute which cannot be resolved by the Steering Committee within thirty (30) days (or any other mutually agreed interval) by the Parties after the Steering Committee’s first meeting held to solve such Dispute shall be submitted by the
Parties to the General Manager in charge of the Royal Dutch Shell’s Group Downstream Post Closing Rights and Obligations department and a person appointed and employed by the Purchaser or its Affiliates with similar seniority to handle such Dispute. The Dispute shall be handled by such senior Persons within thirty (30) days (or any other mutually agreed interval) after the date the Dispute has been submitted by the Steering Committee and these Persons shall endeavour to amicably resolve the Dispute. The Parties shall provide these Persons with such information as they reasonably require to enable them to determine the issues relevant to the Dispute. |
19.5 | Any Dispute which cannot be resolved by the Persons
appointed under Article 19.4 shall be submitted to mediation before a mediator selected by the Parties. The Parties shall bear their own costs for mediation and the costs of the mediator shall be borne equally. |
– | The arbitral tribunal shall be composed of three arbitrators. |
– | The place of arbitration shall be Rotterdam. |
– | The proceedings shall be conducted in the English language. |
19.6 | 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. |
19.7 | 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. |
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. |
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. |
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 250,000,000 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 subject to the same conditions in connection with the exercise of their rights and |
(A) | is
not affiliated with an embargoed country or person, has no direct or indirect embargoed country nexus to a transaction or activity, or is not affiliated to an entity subject to prosecution by any regulatory authority for securities, competition or taxation violations; |
(B) | demonstrates financial standing in respect of liquidity, financing levels and/or market capitalization, and/or (solely with respect to a Strategic Acquirer) investment grade not less than a credit rating of BB- or above on the Standard & Poor’s scale (or equivalent on the Moody’s scale, or on the FITCH-IBCA scale or any equivalent rating agency), or that the liabilities of the proposed assignee are unconditionally and permanently guaranteed by a company that meets such conditions;
|
(C) | has the ability and the capacity, as reasonably determined by the Supplier, to ensure continued compliance with the obligations under this Agreement, in particular with respect to HSSE (which may, but is not required to be, determined by evaluation of past operating history); and |
(D) | is not involved in business activities or conduct materially and detrimentally inconsistent with Supplier’s Statement of General Business Principles. |
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. |
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. |
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. |
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. |
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. |
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 (except those set out in this Agreement). |
26.3 | 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. |
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 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 e-mail) and shall be delivered personally, sent by facsimile transmission, or e-mail, sent by nationally recognized overnight courier or mailed by registered 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): |
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. |
28.1 | This Agreement shall be governed by and construed in accordance with the laws of The Netherlands. |
28.2 | [Intentionally omitted.] |
29.1 | If this Agreement is translated into any language other than the English language, the English version of this Agreement shall prevail. |
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. |
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| This ‘10-Q’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 5/14/18 | 8-K | ||
| 4/1/18 | ||||
| For Period end: | 3/31/18 | |||
| 1/1/18 | ||||
| 11/1/00 | ||||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 3/10/21 Hexion Inc. 10-K 12/31/20 132:30M |