EXHIBIT 10.9
AGREEMENT
Supply of Borage and Echium Oil
KINGS INC.(1)
PILOT THERAPEUTICS, INC.(2)
DATE April 2002
PARTIES
(1) KINGS INC., a company incorporated in England and Wales and whose
registered office is at Weston Centre, Xxxxxxx Xxxxx, 00 Xxxxxxxxxxxxx,
Xxxxxx XX0X 0XX ("Kings");
(2) PILOT THERAPEUTICS, INC., a company incorporated in North Carolina,
United States ("Pilot")
INTRODUCTION
(A) Pilot is a natural and pharmaceutical product development company
involved in the manufacture of medicinal foods and pharmaceutical
products.
(B) Kings is a company involved in the contract growing, extraction,
production and supply of the Product.
(C) Pilot wishes to appoint Kings as a producer of Finished Product and to
purchase the Finished Product from Kings, and Kings has agreed to
accept such appointment and to sell the Finished Product to Pilot all
upon the terms and subject to the conditions set out in this Agreement.
OPERATIVE PROVISIONS
1 INTERPRETATION
1.1 In this Agreement including the Introduction the following words and
expressions shall have the meanings set out below:-
Affiliates in respect of each party, any company which
at the relevant time is the ultimate holding
company of that party or a subsidiary
(whether direct or indirect) of that party's
ultimate holding company; a company is a
"subsidiary" of another company, its
"holding company," if that other company (a)
holds a majority of the voting rights in it
or (b) is a member/shareholder of it and has
the right to appoint or remove a majority of
its board of directors, or (c) is a
member/shareholder of it and controls alone,
pursuant to an agreement with other
shareholders or members, a majority of the
voting rights in it, or is a subsidiary of a
company which is itself a subsidiary of that
other company;
Croda Croda Leek Limited a company incorporated
in England and Wales, with registered office
at Xxxxxx Xxxx, Xxxxxx, Xxxxx, Xxxxx, XX00
0XX;
Delivery Address Pilot's premises or other contract
manufacturers as the parties may agree;
the Effective Date the date of this Agreement;
Finished Product refined borage concentrate and echium oil
and other blends/formulations as agreed from
time to time sourced from the Product.
Growers third parties engaged by Kings to contract
grow the Product for sale (as Finished
Product) to Pilot;
Growers third parties engaged by Kings to contract
grow the Product for sale (as Finished
Product) to Pilot;
Price the calculated price for the Finished
Product as set out in Appendix 9, as the
same may be amended from time to time by
agreement between the parties prior to
refining together with the incurred costs of
Kings which by example are set out in
Appendix 9;
Product borage and echium seeds/oil;
Quality Requirements the quality requirements and other
specifications for the Finished Product as
set out in Appendix 2 or as may otherwise be
agreed in writing by the parties;
Term the term of this Agreement as set out in
clause 10; and
Territory USA and rest of world
1.2 In this Agreement:
(a) references to clauses, parties and the Appendices are to the
clauses of and the parties and the Appendices to this
Agreement; and
(b) headings and captions are for ease of reference only and shall
not affect interpretation.
2 APPOINTMENT OF KINGS
2.1 Subject to this clause 2.1 and clause 2.3, Kings agrees to sell to
Pilot, and Pilot agrees to purchase from Kings, during the Term,
Finished Product in the quantities set forth in Forecasts (as defined
in clause 3.2) prepared from time to time by Pilot (or its Affiliates
or distributors) on the terms and subject to the conditions of this
Agreement. If, and only if, Kings fails to supply (i) the quantities of
Finished Product set forth in any Forecast or (ii) Finished Product
meeting the Quality Requirements at any time during the Term, Pilot
shall be entitled to cover the quantities of unsupplied or unqualified
Finished Product set forth in any Forecast by purchasing such
quantities from one or more third parties until such time as Pilot
determines that Kings is able and willing to supply the quantities of
Finished Product set forth in all subsequent Forecasts on a timely
basis and in conformity with all Quality Requirements.
2.2 Kings agrees not to sell Finished Product produced by Growers who are
engaged by Kings under clause 3 of this Agreement to any third party
during the Term without prior approval of Pilot.
2.3 Subject to clause 3.3, Pilot agrees to purchase all Finished Product
sourced from Product produced by Growers from which commitments to
produce specific quantities of Product have been obtained with Pilot's
approval during the Term. Failure by Pilot to comply with its
obligations under this clause 2.3 will constitute a material breach of
this Agreement. In the event that Pilot wishes not to take delivery of
Finished Product sourced from Product produced by such Growers, Pilot
may permit Kings to sell such Finished Product to third parties, with
any profit or loss resulting to Kings of any such transaction to be for
the account of Pilot to offset any liability Pilot may have based on
its failure to take delivery of such Finished Product.
2.4 The parties may consult with each other as to the possibility of
carrying out future trials to evaluate new sources of essential and
novel fatty acids through crop discovery and trial/assessment work.
2.5 Kings will continue its programme of agronomic improvement of Product
production to seek improved efficiencies of crop production.
2.6 Kings will provide the services as initially set out in Appendix 4, as
modified as mutually agreed in writing from time to time,
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2.7 Pilot may have reasonable access to Kings' records as it relates to the
performance of the terms of this Agreement at the offices of Kings (UK
or US) with prior notice at a mutually convenient time between the
parties.
3 Production of Product and Appointment of Growers
3.1 Kings will be responsible for managing the production of the Products
by Growers and managing the processing of such Products by third party
sub-contractors (including Croda) into Finished Product. Kings will
appoint a project manager to liaise with Pilot in relation to the
provisions of this Agreement.
3.2 During the Term, commencing at least six (6) months before the start of
the relevant Product-growing season (March 1 for the Northern
hemisphere and September 1 for the Southern hemisphere), Pilot shall
provide to Kings a good faith estimate of its likely requested amount
of Finished Product for the subsequent twelve-month period in the form
set out in Appendix 1 ("Forecast"). Based on each Forecast, and sales
performance from time to time, Kings and Pilot will agree on the
acreage of Product which is estimated to be required to be grown in
order to fulfil the Forecast ("Agreed Acreage"). Pilot's Forecast for
the first two years of the Agreement are set out in Appendix 1.
3.3 Kings will enter into contracts with Growers throughout the world to
grow Product, for processing into Finished Product, up to the Agreed
Acreage; provided that Kings will not enter into any contracts or other
arrangement with any such Grower without (i) providing to Pilot in
writing all material terms, including price, offered to each Grower and
(ii) receiving the prior written approval of Pilot (such approval not
to be unreasonably withheld or delayed). Once Pilot has given its
approval under this clause 3.3, Pilot will be responsible for and
liable to meet all costs and other financial obligations properly
incurred by Kings in connection with its arrangements with Growers and
for which Pilot is obligated under this Agreement. If Pilot does not
give its approval to any Grower (or to the material terms agreed to by
such Grower) and the parties to this Agreement are unable to agree on a
suitable alternative, then the Agreed Acreage will be reduced by the
proposed acreage of the rejected Grower.
3.4 Kings will make recommendations to Pilot as to the suitability of
various countries and its Growers for the production of the Product and
will provide Pilot, as soon as practicable following receipt of a
Forecast, with such information as Kings deems relevant (such as
projected production costs, comparable gross margin analysis of
alternative crops of Product and estimated Finished Product costs after
extraction using the assumed oil contents and processing losses as set
out in Appendices 6 (a) and (b)) in order for Pilot to make an informed
decision. The parties will then agree on the countries of production
and the Growers which will be engaged to produce the Product as set out
in clause 3.3. Where appropriate, and following full assessment
(technical and commercial), the parties will seek to utilise North
Carolina, USA as a crop growing, processing and manufacturing base.
3.5 Kings will advise Pilot on suitable countries and timings of crop
production in order to achieve the Agreed Acreage on the basis of the
model set out in Appendices 5(a) and 5(b) which illustrates the timing
when decisions are required to be made by Pilot.
3.6 In respect of the contract growing of Product Kings will require
Growers to complete a field record card, in the form set out in
Appendix 7, prior to movement of the crop of Product. Kings will retain
such field record cards and will provide copies to Pilot, upon request,
for Pilot to identify the place where each crop has been grown and
what, if any, chemical applications have been applied.
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4 PRODUCTION OF FINISHED PRODUCT
4.1 The Products will be manufactured by Kings in accordance with standards
of good manufacturing practice as published from time to time by the
relevant authorities in the Territory in relation to products of this
nature.
4.2 The Finished Products shall be manufactured and processed from Products
by or for Kings in accordance with the Quality Requirements and subject
to current standards of good manufacturing practice as published from
time to time by the relevant authorities in the Territory in relation
to products of this nature.
4.3 Pilot shall be entitled at any time during the Term, at its own cost,
to have access to Kings' extraction facility at Lincoln (or other
suitable extraction or manufacturing facility) during normal working
hours and on at least 14 days' prior written notice, in order to
inspect the extraction process and quality control procedures for the
Products and to verify that Kings is adhering to its obligations under
clause 4.1 and 4.2
4.4 Kings shall maintain extraction and analytical records for each batch
of Finished Product supplied to Pilot for five years from the date of
manufacture which will be made available to Pilot upon request. Such
records will include analysis certificates of each production batch,
deviation reports, change control documents and good medical practice
statements (if relevant) for extraction compliance.
5 FORECASTS AND ORDERS
5.1 During the Term, Pilot shall update the Forecast on a monthly rolling
basis. The first six-month period in every Forecast shall be treated as
firm orders for Finished Product. All orders placed shall provide a
lead time of at least 12 twelve weeks prior to the date of delivery.
Pilot shall place orders for the Finished Product in writing in line
with Kings' minimum batch size as notified to it by Kings.
5.2 Kings shall provide Pilot with a summary of tonnage of Product produced
by geographical location on a quarterly basis during the Term.
5.3 Pilot will provide Kings with revised Forecasts as necessary or
reasonably requested by Kings. In addition, Pilot will provide Kings
with its Quarterly Reports filed on Form 10-QSB with the Securities and
Exchange Commission and, annually, Pilot will provide Kings with its
Audited Financial Statements filed on Form 10-KSB with the Securities
and Exchange Commission.
5.4 All orders will be accepted by Kings subject to Clause 7.4 but if upon
review of the information referred to in Clause 5.3 above (or such
information not being supplied by Pilot) Kings may insist on payment in
advance. In the event of payment in advance of shipment Kings shall
reduce the price of the Final Product by the base interest rate of the
National Westminster Bank plc in recognition of early receipt of
payment.
6 DELIVERY
6.1 Kings shall deliver the Finished Product to Pilot Carriage and
Insurance Paid (as that term is defined in Incoterms 2000 Edition) to
the Delivery Address. Title in the Finished Product shall pass to Pilot
only following payment by Pilot of the Price in full and until such
time, Pilot shall hold Finished Product as Kings' fiduciary agent and
as bailee and shall keep them separate from those of Pilot or third
parties and properly protected, insured and identified as Kings'
property. Each delivery or consignment of the Finished Products shall
include a packing note quoting or attaching a certificate of analysis
in the form set out in Appendix 8. Subject to repayment by Pilot in
Clause 7.4 Kings shall pay import duty from time to time. Kings shall
include this cost in the price of the Finished Product.
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6.2 If delivery dates for the Finished Product cannot be met, Kings shall
promptly notify Pilot of the earliest possible date for delivery of the
Finished Product. Kings will report to Pilot the occurrence of any
event within or beyond its control which is likely to affect delivery
of the Finished Product. Risk in the Finished Product will pass to
Pilot on delivery.
6.3 Where the Finished Products are to be delivered in instalments, each
delivery shall constitute a separate contract and failure by Kings to
deliver any one or more of the instalments in accordance with this
Agreement, or any claim by Pilot in respect of any one or more
instalments, shall not entitle Pilot to reject the other instalments or
to treat the Agreement as a whole as repudiated.
6.4 Any claim by Pilot which is based on any defect in the quality,
quantity or condition of the Finished Products or their failure to
correspond with specification shall be notified to Kings within 14 days
from the date of delivery (or where the defect or failure was not
apparent on reasonable inspection, within 14 days after discovery of
the defect or failure and in any event within three months from the
date of delivery). If Pilot does not notify Kings accordingly, Pilot
shall not be entitled to reject the Finished Products and Kings shall
have no liability for such defect or failure.
6.5 Where any valid claim in respect of any of the Finished Products which
is based on any defect in the quality, quantity or condition of the
Finished Products or their failure to correspond with Quality
Requirements is notified to Kings in accordance with this Agreement,
Kings shall replace the Finished Products (or the part in question)
free of charge or, at Kings' sole discretion, refund to Pilot the price
of the Finished Products (or a proportionate part of the price), but
Kings shall have no further liability to Pilot.
7 PRICE AND PAYMENT
7.1 In respect of Finished Product to be supplied under this Agreement
Pilot shall pay the Price within twenty eight (28) days of date of
invoice or 7 days from receipt of and approval of Finished Product,
whichever is later, directly into Kings' bank account, details of which
shall be provided to Pilot. The costing model, in substantially the
form set out in Appendix 6(b) will be used to estimate the price of
Finished Product at the beginning of each crop season. The actual price
payable by Pilot will be adjusted subject to the actual price of
Finished Product calculated using the spreadsheet set out in Appendix
6(b). At the time of extraction of Product, a final price for Finished
Product will be calculated using the model set out in Appendix 6
detailing exact oil yields and meal values and other associated costs
in the extraction process
7.2 Notwithstanding clause 7.1 Kings reserves the right, at any time before
delivery, to increase the price of the Finished Products to reflect any
increase in costs to Kings which are due to any factor beyond the
control of Kings (such as, without limitation, a significant increase
(>10%) in the costs of labour or materials, the increase or imposition
of any tax duty or other levy, any variation in exchange rates, any
change in delivery dates, any change in quantities or specifications
for the Finished Products requested by Pilot, or any delay caused by
any instructions of Pilot or failure of Pilot to give Kings adequate
information or instructions). Kings will use its reasonable commercial
endeavours to mitigate fluctuations in raw material prices by proposing
a strategic production plan, as set out in Appendix 3.
7.3 Except as otherwise stated under the terms of any quotation or in any
price list of Kings, or unless otherwise agreed in writing between
Pilot and Kings, all prices are given by Kings are on an EXW basis (as
defined by Incoterms 2000) except where Kings agrees to deliver the
Finished Products otherwise than at Kings' premises, in which event the
prices given by Kings will exclude carriage and insurance costs which
will be for the account of Pilot. Kings will also arrange for Customs
clearance of the Finished Product on behalf of Pilot, with costs for
the account of Pilot which costs (which were paid by Kings)
notwithstanding any other term of this Agreement shall be added to the
price of the Final Product.
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7.4 The price is exclusive of any applicable value added tax and any other
tax or duties, which Pilot shall be additionally liable to pay to
Kings.
7.5 All payments to be made by Pilot shall be exclusive of value added tax
and any other tax or duties which Pilot shall be additionally liable to
pay Kings. All payments shall be paid in US$.
7.6 If Pilot fails to make any payment on the due date then, without
prejudice to any other right or remedy available to Kings, Kings shall
be entitled to charge Pilot interest in accordance with clause 7.8 or
suspend further deliveries.
7.7 All payments by Pilot to Kings under this Agreement shall be made
without any deductions or set-off, except to the extent that Kings is
liable to Pilot under this Agreement.
7.8 Interest shall be payable on overdue amounts at the rate of 4% above
the base rate of National Westminster Bank plc per month accruing on a
daily basis (both before and after judgment) from the due date until
full payment to Kings or such greater amount as may be implied by law.
All payments made by Pilot to Kings shall be made without deduction or
set-off.
8 WARRANTIES, INDEMNITY AND LIMITATIONS OF LIABILITY
8.1 Kings shall ensure that the Finished Product complies with the Quality
Requirements at the time of delivery to the Delivery Address.
8.2 Each party warrants that it has adequate product liability insurance in
light of its activities as of the Effective Date and thereafter and
agrees to maintain such insurance during the term of this Agreement.
8.3 Pilot shall be fully responsible for all matters concerning marketing
and distribution of Finished Product in the Territory, including
compliance with any and all applicable laws and regulations, and agrees
to indemnify and hold Kings harmless from and against all claims,
losses, damages, fines, liability, costs and expenses (collectively,
"Losses") arising out of:
(a) the use of the Finished Product in any final products marketed
and/or distributed by Pilot, its Affiliates, agents or
distributors (excluding claims as to intrinsic defects of the
Product);
(b) Pilot or its Affiliates, agents or distributors or licensees'
importation, storage, handling, marketing, promotion,
distribution, delivery or sale of Finished Product or final
products incorporating Finished Product; or
(c) breach by Pilot of any of the terms of this Agreement or
warranties made by Pilot herein.
If the facts pertaining to a Loss arise out of the claim of any third
party, or if there is any claim against a third party available by
virtue of the circumstances of the Loss, Pilot shall be entitled to
the sole conduct and control of the defense or the prosecution of such
claim, and shall have sole control over all negotiations for
settlement or compromises of any such. Kings shall not make any
settlement of, or admissions with respect to, any claim without the
written consent of Pilot and Kings shall give Pilot all reasonably
requested assistance and cooperation in the conduct of any litigation
or negotiations. Notwithstanding anything in this Section 8.3 to the
contrary, Pilot shall have no indemnification obligation to Kings in
respect of any Loss that arises, directly or indirectly, from a breach
by Kings of any of the terms of this Agreement or warranties made by
Kings herein.
agrees to indemnify and hold Pilot harmless from and against all
Losses arising, directly or indirectly, out of the breach by Kings
of any of the terms of this Agreement or warranties made by Kings
herein.
8.5 Where Kings makes recommendations or provides other advice to Pilot
under the terms of this Agreement, Kings will do so to the best of its
knowledge and belief. Kings does not warrant or
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guarantee that the Agreed Acreage will be sufficient to meet the
Forecast or that the Products grown by Growers will be sufficient to
meet Pilot's requirements for Finished Products (provided that this
Section 8.5 shall not be deemed to obviate Kings' obligation to enter
into contracts with Growers throughout the world to grow Product, for
processing into Finished Product, up to the Agreed Acreage). Kings
shall not be taken as having given a warranty, guarantee or
recommendation as to the suitability of the Finished Products for any
specific purpose. Pilot shall satisfy itself as to whether the Finished
Products purchased are suitable for the purpose for which Pilot intends
to use them and Kings gives no warranty nor makes any representations
to this effect. Save as set out in this Agreement, all representations,
warranties, conditions or other terms implied by statute or common law
are excluded by Kings to the fullest extent permitted by law.
8.6 Kings shall not be liable to Pilot by reason of any representation, or
any duty at law or under the terms of this Agreement (including any
indemnity), for any consequential loss or damage, costs, expenses or
other claims for consequential compensation whatsoever or for loss of
profits or business (and whether caused by the negligence of Kings, its
employees or agents or otherwise) which arise out of or in connection
with the supply of the Finished Product or the use or resale of the
Finished Product by Pilot, its Affiliates, agents, distributors or
licensees.
8.7 Subject to Clause 8.8, to the extent that Kings does have liability to
Pilot under this Agreement, the aggregate liability, whether for
negligence, breach of contract, misrepresentation or otherwise shall in
no circumstances exceed the aggregate replacement cost to Pilot of the
defective, damaged or undelivered Finished Product which gives rise to
such liability.
8.8 Notwithstanding Section 8.7 or any other provision of this Agreement,
Kings' liability for fraudulent misrepresentation or death or personal
injury arising from its negligence is not excluded or limited in any
way.
9 CONFIDENTIAL INFORMATION
9.1 Save as is otherwise required by law or any regulatory authority, each
party undertakes to the other that during the Term and thereafter it
will keep secret and will not without the prior written consent of the
other party use or disclose to any third party any confidential
information relating to the business or affairs of such other party
("Confidential Information") learned by the recipient party or
disclosed to the recipient party by such other party pursuant to or
otherwise in connection with this Agreement (except insofar as any such
Confidential Information shall (otherwise than by breach of this
Agreement) be in the public domain) or subsequently comes lawfully into
the possession of the recipient party from a third party not under any
duty of confidentiality to the other party to this Agreement.
9.2 To the extent that it is necessary to implement the provisions of this
Agreement the recipient party may disclose Confidential Information to
its employees and its Affiliates as may reasonably be necessary
provided that before any such disclosure the recipient party shall make
such employees aware of their obligations of confidentiality under this
Agreement and shall at all times procure compliance with such
obligations of confidentiality. Without limiting the generality of the
foregoing, to the extent any such employees or Affiliates of the
recipient party fail to comply with such obligations of
confidentiality, the recipient party shall be in breach of this Article
9.
10 TERM AND TERMINATION
10.1 Subject to clauses 10.2 and 10.3, the Agreement shall commence on the
Effective Date and shall remain in full force and effect until either
party provides 24 months prior written notice.
10.2 Either party shall have the right forthwith to terminate this Agreement
in the event that:
(a) the other party shall be guilty of any material breach,
non-observance or non-performance of any of its material
obligations under this Agreement which (if
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curable) is not remedied within thirty days after receiving
notice of same (such notice to include a warning of the
notifying party's intention to terminate in the absence of a
remedy); or
(b) the other party shall be liquidated, unable to pay its debts
in the ordinary course of business or have a receiver
appointed over any of its assets or otherwise becomes subject
to the insolvency laws of the country of which it is
incorporated.
10.3 Kings shall have the right to terminate this Agreement with 6 months
notice in the event that the whole or the majority of the business and
assets of Pilot is sold or a majority of the voting shares of Pilot
becomes vested in or subject to the direction and control of any person
or legal entity different from the ones under which direction and
control is vested on the Effective Date.
10.4 Upon termination of this Agreement (howsoever occasioned), neither
Pilot nor Kings shall have any further rights to use the Confidential
Information obtained from the other party under this Agreement for any
purpose.
10.5 Any termination of this Agreement (howsoever occasioned) shall not
affect any accrued rights or liabilities of either party, including,
without limitation, Pilot's obligation to accept and pay for Finished
Product delivered pursuant to an order placed before termination or
produced from Product grown by a Grower previously approved by Pilot
(subject to the Quality Requirements and other obligations of Kings
with respect to such Finished Product and Product, which shall also
survive termination), nor shall it affect the coming into force or the
continuance in force of any provision hereof which is expressly
intended to come into or continue in force on or after such termination
11 FORCE MAJEURE
Neither party shall be liable to the other for any default under this
Agreement caused by Act of God, explosion, drought, flood, tempest,
fire, fog and other meteorological conditions, perils of the sea or
rivers or accident; war or threat of war, sabotage, malicious damages,
insurrection, civil disturbance or requisition; acts, restrictions,
regulations, by-laws, prohibitions or measures of any kind on the part
of any government or other authority becoming effective after the
Effective Date; strikes, lock-outs or other industrial actions or trade
disputes; difficulties or delays in obtaining raw materials, crop
production or failures, labour, fuel, machinery or supplies or
transport delays; power failure or breakdown in machinery or other
contingencies preventing or delaying growth of crops or production; or
supplies from third party contract manufacturers.
12 NOTICES
12.1 Any notice under or in connection with this Agreement shall be in
writing and shall be delivered personally or sent by airmail or by
facsimile (with copy of facsimile also being mailed with postage pre
paid), to the party due to receive the notice or communication at its
address set out in this Agreement or such other address as either party
may specify by notice in writing to the other, provided that in a case
where a party serves notice of breach or termination of this Agreement
such notice shall be served by registered post or delivered by courier.
12.2 In the absence of evidence of earlier receipt, any notice shall be
deemed to have been duly given:
(a) if delivered personally, when delivered;
(b) if sent by air mail, seven days after posting it; and
(c) if sent by facsimile, with confirmed receipt
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13 ENTIRE AGREEMENT AND AMENDMENT
This Agreement embodies the entire understanding between the parties in
respect of its subject matter and supersedes all prior agreements,
negotiations and discussions between the parties relating to the
subject matter of this Agreement. Each party irrevocably and
unconditionally waives any right it may have to claim damages and/or to
rescind this Agreement for any misrepresentation made outside this
Agreement unless such misrepresentation was made fraudulently. This
Agreement may be amended or modified in whole or in part only by an
agreement in writing executed by authorised representatives of both
parties.
14 ASSIGNMENT
Neither the rights nor the obligations of Pilot or Kings under this
Agreement may be assigned, transferred, sub-contracted or otherwise
disposed of in whole or in part, without the prior written consent of
the other party, not to be unreasonably withheld; provided that no such
consent shall be required for either Pilot or Kings to assign its
rights or obligations under this Agreement in connection with a merger
or a sale of all or substantially all of its assets.
15 STATUTORY COMPLIANCE
Both parties shall comply with all statutory provisions and
regulations, common law duties, by-laws or regulations of any authority
or other public body of whatsoever nature in respect of this Agreement
and obtain, at its own expense, any licences or permits that may be
required to satisfy its obligations hereunder.
16 WAIVER
The waiver or forbearance or failure of a party in insisting in any one
or more instances upon the performance of any provisions of this
Agreement shall not be construed as a waiver or relinquishment of that
party's rights to future performance of such provision and the other
party's obligation in respect of such future performance shall continue
in full force and effect.
17 SEVERANCE
In case any one or more of the provisions of this Agreement should be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby and the
parties shall amend this Agreement to add a new provision having an
effect as near as legally permissible to the one found invalid, illegal
or unenforceable.
18 REMEDIES NOT EXCLUSIVE
No remedy conferred by any provisions of this Agreement is intended to
be exclusive of any other remedy and each and every such remedy shall
be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing in law or in equity or by
statute or otherwise.
19 THIRD PARTY RIGHTS
A person who is not a party to this Agreement shall have no right under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement.
20 FURTHER ASSURANCE
The parties agree that they shall do all such acts and things and
execute all such documents as may be reasonably required to effect the
full implementation of the terms and conditions of this Agreement.
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21 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
New York (USA) law.
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APPENDIX 1
FORECASTS
[TO BE PROVIDED BY PILOT FOLLOWING COMPLETION OF BASES II VOLUMETRIC TESTING]
APPENDIX 2
QUALITY REQUIREMENTS
[TO BE PROVIDED BY PILOT]
APPENDIX 3
STRATEGIC PRODUCTION PLAN
[TO BE PROVIDED BY KINGS]
APPENDIX 4
[OTHER SERVICES REQUIRED BY PILOT]
APPENDIX 5
DECISION CALENDAR
[TO BE PROVIDED]
APPENDIX 6
A
GROSS MARGIN ANALYSIS OF PRODUCTION AREAS
B
ESTIMATE OF OIL COSTS
[TO BE PROVIDED]
APPENDIX 7
FIELD RECORD CARDS
[TO BE PROVIDED]
APPENDIX 8
CERTIFICATE OF ANALYSIS
[TO BE PROVIDED]
APPENDIX 9
OIL PRICES
[TO BE PROVIDED]
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