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Exhibit 2.4
AMENDED AND RESTATED SHARED FACILITIES AND SERVICES AGREEMENT
AGREEMENT ("Agreement"), made this 20th day of September 1999
by and between Century Aluminum of West Virginia, Inc. ("Century"), and Pechiney
Rolled Products LLC ("Pechiney").
WHEREAS Century owns and operates a reduction facility, a
casting house, a multi-purpose rolling mill and related assets and property in
Ravenswood, West Virginia (collectively, the "Ravenswood Complex");
WHEREAS the various components of the Ravenswood Complex have
been operated by Century as a single integrated facility;
WHEREAS the Ravenswood Complex will be divided into two
separately operated and managed facilities, to be known as the Pechiney Site and
the Century Site (each a "Site");
WHEREAS Century Aluminum Company, Century and Pechiney have
entered into a Stock and Asset Purchase Agreement dated July 26, 1999 (the
"Purchase Agreement"), pursuant to which Pechiney has agreed to acquire the
Pechiney Site;
WHEREAS there are certain services, facilities and related
physical assets that will be shared between the two Sites and the parties
provided therefor in the Shared Facilities and Services Agreement dated as of
July 26, 1999 (the "July Agreement"), and
WHEREAS, the committee established pursuant to the July
Agreement has met and the parties have determined as a result thereof that it is
in their best interest to amend and restate the July Agreement in its entirety
to reflect the recommendations of that committee.
NOW THEREFORE, in consideration of one dollar and other
valuable consideration and in consideration of the mutual covenants herein
contained, the parties do hereby agree as follows:
The July Agreement is amended and restated to read in its
entirety as follows:
1. Division of Premises. Pursuant to the Purchase Agreement, a
division of the Ravenswood Complex has been agreed upon by Century and Pechiney
as shown on the site plan entitled Survey of Century Aluminum of West Virginia
Operating Fabrication Plant located in Union District of Xxxxxxx County on the
waters of the Ohio River, State of West Virginia, prepared by Point Surveying
and Mapping, Xxxxxxx X. Xxxxxxxx W.V.P.S. No. 867 and dated May 18, 1999,
revised September 17, 1999, which has been duplicated and recorded in the
Xxxxxxx County Registry of Deeds. A reduced photocopy of such plan is attached
hereto as Exhibit A. The parties shall cooperate with each other in taking such
other action as is necessary in dividing the Ravenswood Complex in a way that
results in compliance with existing zoning, land use, environmental and similar
laws and regulations and (b) seeking such permits, variances and changes to such
existing laws and regulations as are necessary to accomplish such division.
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2. [Intentionally left blank]
3. Shared Services. Set forth in Exhibit B hereto is a list of
shared services and facilities that will be utilized by each of the Century Site
and the Pechiney Site (the "Facilities") in the normal course of operations, and
the services to be provided by the Facilities and certain human services
departments (each a "Shared Service") of Pechiney or Century, as owner of a
Facility, to Pechiney or Century, as the case may be, with respect to such
Facility. Exhibit B further specifies the owner and manager of each Facility.
Annex A to Exhibit B describes the Facilities, shared services, and the
allocations of responsibilities and costs agreed with respect thereto, and Annex
A to Exhibit B is incorporated herein in its entirety and made a part of this
Agreement. Attached as Exhibits C, D, E, F, G and H hereto are agreements
between the parties to more fully effect certain of the agreed allocations
described in Annex A and other matters relating to the Shared Services (the
"Further Agreements").
4. Limitations. (a) Except as specifically provided in (x)
this Agreement (including Exhibit B), or (y) any Further Agreement, this
Agreement does not and shall not be deemed to constitute a lease or a conveyance
of any real property or premises, or to confer upon any party any right, title,
estate or interest in the Ravenswood Complex or any part thereof, including any
equipment or other assets.
(b) Except as otherwise expressly provided in (y) this
Agreement (including Exhibit B), or (y) any Further Agreement, no party shall
permit the whole or any portion of a Facility owned by the other party to be
occupied or utilized by any other person or entity, other than its officers,
directors and employees in the performance of their duties in the ordinary
course of business and operation of the Century Site and the Pechiney Site, as
the case may be.
5. Committee. Promptly upon execution of this Agreement, the
parties will appoint a committee ("Committee"), composed of not more than four
representatives consisting of two representatives selected by Century and two
representatives selected by Pechiney, the function of which is to:
(a) establish the contingency guidelines provided for in
Section 10(e) hereof;
(b) make recommendations regarding the Shared Facilities and
Shared Services to the extent contemplated in Annex A to Exhibit B; and
(c) make recommendations regarding such other items as shall
be referred to it by the parties.
The Committee shall not have the right or power to bind the
parties hereto, but shall forward its recommendations for consideration by the
parties promptly upon completion. The Committee shall complete its activities
within ninety (90) days from the date hereof, subject to extension of such
period by the parties hereto.
6. Easements. On the date hereof, the parties hereto granted
to each other certain easements as contemplated in the July Agreement and as set
forth in further detail in the
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Reciprocal Easement Agreement attached hereto as Exhibit H (the "Reciprocal
Easement Agreement").
7. Standards; Payment. Unless otherwise expressly provided in
this Agreement, or in a Further Agreement, the following shall apply from and
after the Closing with respect to all Shared Services provided pursuant to this
Agreement:
(a) A party obligated to perform a service under this
Agreement shall do so using standards of care and levels and manner of
performance consistent with good industry practice. All Facilities to be
operated by either party shall be operated and maintained in a manner consistent
with the obligations of that party to perform hereunder and so as not to
discriminate against the other party hereto. Unless otherwise agreed, all costs
and expenses of operating and maintaining a Facility shall be paid by the party
owning that Facility, subject to allocations and reimbursements as provided
herein or in any Further Agreement. Each party shall perform its obligations
with respect to a Shared Service without undue delay and shall keep its
respective equipment and Facilities which are necessary or useful to the
performance of its obligations in good working condition.
(b) (i) Except as otherwise specifically provided herein or in
any Further Agreement, all Shared Services shall be provided for an amount equal
to the providing party's Direct Costs for providing such Shared Service. Direct
Costs shall include, without limitation, wages and employee benefits of
personnel that are directly providing the Shared Service, as well as actual
supply, maintenance and other expenses of the providing party incurred in
providing the Shared Service and any and all other costs which are directly
generated by, and related to, the operation and maintenance of the relevant
Facility and the provision of the Shared Service ("Direct Costs"). Direct Costs
shall not include depreciation expense.
(ii) Except as otherwise specified herein or in any Further
Agreement, Direct Costs shall be allocated to the recipient of the Shared
Service based upon such recipient's actual usage.
(c) Each party shall render to the other a monthly statement
for amounts due for Shared Services or in any Further Agreement for the
immediately preceding calendar month, setting forth in reasonable detail the
services provided and Facilities used and the Direct Costs thereof. The
recipient shall pay the provider the invoiced amount in immediately available
funds within thirty (30) days after delivery of the invoice. Payments due on a
day other than a business day shall be made on the next succeeding business day.
Amounts due from Pechiney to Century, and from Century to Pechiney, hereunder or
under the Further Agreements, may be netted or set off one against the other.
(d) If an error is made in the calculation of any amount
payable by the recipient under this Agreement or in any Further Agreement, the
invoice to such recipient for the month immediately succeeding the month in
which such error was finally determined shall be increased or decreased, as the
case may be, by an amount equal to the amount of such overpayment or
underpayment, as the case may be.
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(e) If a party disputes the amount of any charge,
notwithstanding the provisions of Section 15 hereof, it shall pay the undisputed
amounts and shall set forth in writing those amounts to which it objects with a
reasonably detailed explanation of the basis for its objections. The parties
shall act in good faith and promptly resolve any such disputed amounts. Any such
dispute not so resolved shall be subject to the provisions of Section 15 hereof.
(f) Notwithstanding any other provision of this Agreement or
in any Further Agreement, interest shall accrue on any overdue amount payable
thereunder at a rate equal to one and one-half percent (1-1/2%) per month,
prorated for the number of days such overdue amounts are outstanding.
(g) Each party shall provide the other with such reasonable
information as the other may request to review and confirm the accuracy of the
monthly statements provided under Section 7(c) above. Each party shall keep
complete and accurate books and records of account relating to the cost of
Shared Services in accordance with Section 13(b) hereof.
(h) The recipient shall pay to the provider for each Shared
Service that is the subject of any sales or use tax imposed by any Governmental
Authority (as defined in Section 20), within fifteen (15) days after demand
therefor, an amount equal to the recipient's pro rata portion of the aggregate
amount of such sales and use taxes. Notwithstanding the foregoing, the recipient
shall use reasonable efforts to provide exemption certificates where available
and to calculate any applicable sales and use taxes and to make payment thereof
directly to the appropriate taxing authority.
8. Term and Termination. (a) Unless otherwise provided herein
or in a Further Agreement with respect to a specific Shared Service, this
Agreement shall have a term of eight (8) years commencing the date hereof with
respect to each Shared Service, provided that either party shall be entitled to
extend the term of this Agreement for one (1) additional term of eight (8) years
with respect to each Shared Service, upon notice thereof to the other given not
less than six (6) months prior to the expiration of the initial term.
(b) Unless otherwise provided herein or in a Further Agreement
with respect to a specific Shared Service, each of Century and Pechiney may, at
any time, terminate this Agreement as to any specific Shared Service it is the
recipient of hereunder on not less than six (6) months' prior written notice to
the providing party, unless such providing party is also a recipient of such
Shared Service and such cancellation would have the effect of depriving the
provider of the use or benefit of such Shared Service; provided, however, for
purposes of this Section 8, the loss or reduction of financial support alone
shall not be deemed to deprive the provider of the use or benefit of the Shared
Service.
(c) Except as otherwise provided herein or in a Further
Agreement, either party may terminate this Agreement as to any specific Shared
Service on not less than six (6) months' prior written notice if the
non-terminating party has not used such Shared Service during the twelve (12)
months immediately prior to the date of such notice. Termination of a specific
Shared Service shall become effective only upon receipt by the terminating party
of a written consent to such termination, which consent shall not be
unreasonably delayed or denied.
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(d) This Agreement may be terminated with respect to any
specific Shared Service but solely with respect to such Shared Service at the
option of:
(i) the recipient thereof, if the provider thereof fails to
supply the Shared Service in question or to perform in accordance with the terms
of this Agreement or any Further Agreement relating to such Shared Service any
other material term, covenant or agreement contained in this Agreement or such
Further Agreement on its part to be performed or observed with respect to such
Shared Service, if such failure shall remain unremedied for sixty (60) days
after notice thereof shall have been given by the recipient or, if the failure
is of a type that cannot reasonably be cured within sixty (60) days, failure to
initiate within such sixty (60) day period such action as reasonably can be
taken toward curing the same and/or failure to prosecute such action as promptly
as is reasonably possible after such action is initiated; or
(ii) the provider thereof, if the recipient thereof shall fail
to pay to the provider any amount due to the provider hereunder with respect to
the Shared Service in question, when the same becomes due and payable under this
Agreement, and any such failure shall remain unremedied for a period of thirty
(30) days after notice thereof shall have been given by the provider to the
recipient. The foregoing termination rights set forth in 8(d)(i) and 8(d)(ii)
shall be in addition to all other rights and remedies that the non-breaching
party may have against the breaching party with respect to such Shared Service
under this Agreement.
(e) Upon the discontinuation or termination of a Shared
Service hereunder, this Agreement shall be of no further force and effect for
such Shared Service except as to obligations accrued prior to the date of
discontinuation or termination. The party providing the Shared Service shall,
within thirty (30) days after discontinuation or termination of a Shared
Service, deliver to the other Party all property of the other party in the
possession of the servicing party, including, but not limited to, all books,
records, contracts, leases, receipts for deposits, and all other papers or
documents which are maintained by the servicing party and which pertain solely
to providing such service to the benefiting party. In addition, the servicing
party shall furnish to the benefiting party all such information and take all
such other actions as the benefiting party shall reasonably require to
effectuate an orderly and systematic transfer of the servicing party's duties
and activities, provided that the reasonable costs of the same shall be properly
reimbursed to the servicing party by the benefiting party with respect to the
Shared Service.
9. Level of Services. Subject to the terms and conditions of
this Agreement or any Further Agreement, services provided with respect to a
Shared Service shall be as follows:
(a) The party providing a Shared Service to the other party,
through its employees, agents, contractors or independent third parties, shall
provide to the other party the basic level of service reasonably necessary to
perform the tasks specified for such Shared Service. At all times during the
performance of Shared Services, all persons performing Shared Services who shall
be in the employ and/or under the control of the party providing the service
(including agents, temporary employees and consultants) shall be construed as
being independent
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from the benefiting party and not as employees of the benefiting party and shall
not be entitled to any payment, benefit or perquisite directly from the
benefiting party on account of such services.
(b) The servicing party shall not be required to perform
services hereunder, or under a Further Agreement that conflict with any
applicable legal requirement.
(c) The benefiting party shall provide timely decisions and
reasonable written policy guidelines as required for the performance of Shared
Services by the party providing a Shared Service to the benefiting party.
(d) From time to time, a party may desire services in excess
of the level of basic Shared Services that may have been agreed to by the
parties. A party shall have the right to request such services by providing the
other party with written notice ("Requested Services"); provided, however, that
no such request relating to services provided for in a Further Agreement may be
made except as provided in such Further Agreement. To the extent that it can
reasonably do so, the servicing party shall provide the Requested Services on
the basis requested by the benefiting party and for a fee agreed upon by the
parties pursuant to the terms and conditions of this Agreement or any Further
Agreement.
(e) In the event that a servicing party shall deem it
necessary in the performance of a service hereunder or under a Further Agreement
to obtain the services of any third party or to obtain additional leased
equipment or other facilities in connection therewith, that will result in an
additional cost to the benefiting party, the servicing party shall obtain the
written approval of the benefiting party prior to obtaining any such third party
services or additional leased equipment or other facilities. Each of the parties
agrees that any such third party agreement shall be terminable upon written
request by the benefiting party subject to any outstanding commitments. The cost
of such additional third party services and/or additional equipment and
facilities shall be billed to and paid for by the benefiting party in the manner
set forth in Section 7 hereof, or in a Further Agreement. Notwithstanding the
foregoing, the prior written approval shall not be required in cases of
emergency where the failure to obtain such third party services or equipment or
other facilities, in the best judgment of the servicing party, will cause
economic harm to the benefiting party in excess of the cost to be incurred in
obtaining such third party services and/or additional equipment. Oral or written
notice and an estimate of the costs shall be provided to the benefiting party
within twenty-four (24) hours after an emergency.
10. Force Majeure. (a) Upon the occurrence and during the
continuance of an Event of Force Majeure (as defined in Section 20), the
obligation of a party to provide one or more Shared Services or the obligation
of a party to accept one or more Shared Services, as the case may be, shall be
temporarily suspended; provided, however, that: (i) such suspension shall relate
solely to that portion of the Shared Services that the party seeking to rely on
such Event of Force Majeure is unable to perform or accept, as the case may be;
and (ii) such suspension shall be in effect only for such period during which
such Event of Force Majeure shall be continuing. If such Event of Force Majeure
results in a partial rather than a total inability on the part of the provider
to perform or the recipient to receive the Shared Service, the recipient or the
provider,
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respectively, shall be entitled to receive or provide the pro rata portion of
any available quantity or level of such Shared Service.
(b) Upon the occurrence of an Event of Force Majeure, the
party claiming such event shall provide prompt written notice to the other party
that specifically describes the circumstances causing the Event of Force
Majeure, the Facilities affected by such Event of Force Majeure and the Shared
Services suspended on account of each Event of Force Majeure, provided that any
failure to provide such notice shall not affect the rights of the party claiming
such event except to the extent that the other party has suffered actual
prejudice thereby.
(c) If an Event of Force Majeure prevents a party from fully
performing its obligations under this Agreement or a Further Agreement, such
party shall diligently attempt to remove the cause of its inability to perform
fully and shall keep the other party advised on a regular basis of its progress
in removing the cause of its inability to perform fully its obligations
hereunder.
(d) Upon the occurrence and during the continuance of an Event
of Force Majeure, the recipient of a Shared Service which is affected by such
Event of Force Majeure shall be entitled to obtain substitute services or
facilities on a temporary basis. If an Event of Force Majeure continues for not
less than sixty (60) days, the recipient may elect to obtain any substitute
service or facility on a permanent basis, and if such election is made, then on
the later of: (i) the thirtieth (30th) day after the date on which the recipient
notifies the provider that it intends to exercise its right to obtain permanent
substitute services or facilities, and (ii) any date of termination specified in
such notice, the provider will have no further obligation to provide and the
recipient shall have no further obligation to accept such Shared Services and
all costs associated with such Shared Services shall cease to accrue; provided,
however, that if the provider also is a recipient of the Shared Service in
question and such cancellation would have the effect of depriving the provider
of the use or benefit of such Shared Service, then the recipient shall only be
entitled to obtain substitute services or facilities on a permanent basis after
receiving the prior written consent of the provider, which consent shall not be
unreasonably withheld.
(e) In the event that a party which is providing a Shared
Service pursuant to the terms of this Agreement or a Further Agreement becomes
unable to operate the relevant Facility and provide such Shared Service due to a
work stoppage or other Event of Force Majeure (an "Interruption"), the other
party shall have the right to assume operation of the affected Facility for so
long as the party otherwise responsible for providing the Shared Service shall
remain unable to operate the relevant Facility, provided such assumption of
operation shall not have material adverse consequences to the affected provider.
The Committee shall establish contingency guidelines applicable to an
Interruption with respect to the Shared Services which will set forth the
procedures pursuant to which the employees of the other party will operate the
affected Facility during the Interruption. To that effect, a party will provide
to employees of the other party training and access to information sufficient to
allow such employees to operate the Facilities providing Shared Services safely
and efficiently during an Interruption. The parties hereby undertake to use
commercially reasonable efforts in the event of an Interruption to allow the
employees of the other to operate an affected Facility or Shared Service.
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(f) The parties hereto acknowledge and agree that, absent the
provisions of Section 10(e) they would not have entered into this Agreement and
that irreparable damage may occur in the event that such provisions are not
performed in accordance with their terms. The parties hereto agree that each
party shall be entitled, in addition to any other remedy at law or in equity, to
equitable relief, including injunctive relief and specific performance of the
terms of such provisions, in the event of a breach by the other party of any of
the provisions of any of such sections.
11. Temporary Suspension of Shared Services for Repairs and
Improvements. (a) To allow the party that owns a Facility and provides a Shared
Service to maintain and/or make necessary repairs or improvements to the
Facility, such party may elect to reduce, interrupt, allocate, alter or change
(each activity a "Change") the relevant Shared Services that it is required to
provide under this Agreement or a Further Agreement, provided that:
(i) The party desiring to make the Change shall give notice of
such action, describing in reasonable detail such Change and the reasons
therefor, to the other party, pursuant to Section 19(h) hereof; and
(ii) The party that is the recipient of the Shared Service in
question provides prior written consent for the Change, which consent shall not
be denied unreasonably. Prior written consent shall not be required with respect
to Changes that are (x) required by any applicable law, rule, regulation or
Governmental Order (as defined in Section 20), or (y) in the reasonable opinion
of the party effecting the Change, required to preserve the safety or
environmental standards at the relevant Site or Facility or required by any
other contractual undertakings in existence on the date of the Closing to which
such party is subject.
(b) Except as the parties may otherwise agree in writing, a
party that desires to undertake a Change, as described in Section 11(a) hereof,
shall be responsible for any costs associated with effecting the change;
provided, however, that (i) a portion of the costs of any Change which shall be
required by any applicable law, rule, regulation or Governmental Order or
required to preserve safety or environmental standards as provided for in
Section 11(a)(ii)(x) and (y) above shall be allocated to the party receiving the
relevant Shared Service pro rata to its usage of the relevant Facility, and (ii)
this Section 11(b) shall not apply to costs related to activities that are part
of a standard periodic maintenance program. In the event of an inconsistency in
application between the provisions of this Section 11(b) and of Section 12(b),
the provisions of Section 12(b) shall govern.
(c) The party undertaking any Change described in Section
11(a) hereof shall use all reasonable efforts to allocate the effects of such
Change in a manner so that each party receives its pro rata portion of any
available quantity or level of any affected Shared Service.
(d) Upon the occurrence and during the continuance of any
Change referred to in this Section 11, the parties shall cooperate to attempt to
arrange for Shared Services to be furnished in an alternate manner, to minimize
or reduce the effect on their operations of such Change of a Shared Service, and
to otherwise engage in a course of conduct intended to enable
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the provider thereof to provide and the recipient thereof to receive the
suspended Shared Service, in each case without imposing any obligations on
either party in addition to those otherwise imposed by this Agreement or a
Further Agreement as may be the case, including, without limitation, obligations
that would increase the costs that are to be borne by the parties.
12. Alteration of Facilities. (a) Except as provided herein,
or in a Further Agreement, no party shall make any alteration to its Site or to
any Facility without prior written consent of the other party if such alteration
would materially adversely affect such party's ability to provide Shared
Services to such other party on the terms and conditions of this Agreement or a
Further Agreement or that would materially increase the amounts that are payable
by such other party in connection with Shared Services; provided that the
restrictions of this Section 12(a) shall not apply to any alteration: (i) that
is required by any law, rule, regulation or Governmental Order; (ii) that, in
the reasonable opinion of the party making the alteration, is required to
preserve safety or environmental standards at the Site or Facility or is
required by any other contractual undertakings in existence on the date of the
Closing to which the party making the alteration is subject; or (iii) if the
amounts that are payable by such other party in connection with Shared Services
provided to such other party would not be materially increased as a result of
such alteration.
(b) Should a party determine that alterations and/or
improvements are needed or desirable on a Facility, then such party shall notify
in writing the other party, specifying the nature and scope of the work to be
performed and the reason therefor. Costs for such alterations and/or
improvements will be borne by the demanding party, unless (i) the alterations or
improvements are required in order to maintain the then-existing capabilities of
the relevant Facility, in which case the costs shall be allocated among the
parties pro rata according to their usage of the relevant Facility, (ii) the
non-demanding party agrees to pay a portion of such costs, in which case such
non-demanding party shall be entitled to receive such portion of the benefits of
the alteration and/or improvement as corresponds to its portion of the costs, or
(iii) the work to be performed is required by, or for compliance with, any law,
rule, regulation or Governmental Order, in which case the parties shall share
the costs of such alteration and/or improvement pro rata according to their
usage of the relevant Facility.
13. Additional Covenants.
(a) Inspection, Access and Testing. At scheduled times and
intervals to be agreed upon by the parties, each of Century and Pechiney shall:
(i) permit either the other party or, at such other party's
option, independent public accountants mutually acceptable to the parties, to
inspect the books and records of such other party relating to the Shared
Services furnished pursuant to this Agreement, provided that such inspection and
audit shall be conducted for the sole purpose of determining whether the costs
charged have been assessed in accordance with the terms of this Agreement and
the Further Agreements, and the cost of such inspection shall be borne by the
requesting party; and
(ii) permit the other party or any of such other party's
agents or representatives to visit its Site in order to: (A) consult with those
agents of the requested party
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designated by such party regarding Shared Services to be provided hereunder and
the Further Agreements, and (B) require that meter calibration and/or other
tests be conducted to verify the accuracy of equipment used to determine the
quantity or quality of Shared Services provided hereunder and the Further
Agreements, provided that: (y) no party shall be entitled to require meter
calibration and/or other tests permitted by clause (B) above any more frequently
than every thirty (30) days; and (z) each party shall cause its employees,
agents and representatives to comply with all of the other party's rules and
regulations pertaining to security, safety and property protection and follow
the route or routes designated by such party.
(b) Books and Records. Each party shall keep proper books of
record and account, in which full and correct entries shall be made of all
financial transactions related to Shared Services and the performance of its
obligations under this Agreement and the Further Agreements, including, without
limitation, recording the levels or quantities of Shared Services provided by or
on behalf of that party to the other party under this Agreement and the Further
Agreements, the costs and expenses associated therewith and amounts paid by or
on behalf of such party. In addition to the obligations set forth in Section
13(a), each party shall make such books and records available to the other party
for inspection upon reasonable request.
(c) Authorizations and Permits. (i) Except as otherwise
specified herein, each party shall maintain in full force and effect all
authorizations, waivers, consents, permits (including all Environmental Permits
(as defined in Section 20)), orders and approvals and make or cause to be made
all registrations, filings, permit modifications or transfers (including any
Environmental Permit modifications or transfers) and notices with or to all
third parties and Governmental Authorities necessary or appropriate for such
party to provide the Shared Services with respect to which it is the provider
and to maintain all Facilities owned by it; and (ii) with respect to such
authorizations, waivers, consents, permits, orders and approvals that will
materially affect the manner in which a party operates its Site, such party
shall consult with and allow the other to participate in discussions with any
Governmental Authority or third party regarding compliance with any such
authorizations, waivers, consents, permits, orders or approvals and in the
making of any such registration, filing, permit transfer or notice now or
hereafter in effect or to obtain, modify or renew any such authorizations,
waivers, consents, permits, orders or approvals.
14. Reporting. Each party shall furnish to the other party:
(a) promptly, and in any event (except for emergency
situations or Events of Force Majeure) not later than thirty (30) days prior to
the commencement of a suspension or a reduction of a Shared Service, a statement
describing the nature, extent, effect and the anticipated duration of such
suspension or reduction of Shared Service;
(b) promptly upon receipt thereof, copies of any statement or
report to or notice from any Governmental Authority or third party that relates
to any authorization, waiver, consent, permit (including any Environmental
Permit), order or approval that relates to any Shared Service to be provided by
or on behalf of such party and that materially affects the manner in which the
other operates its Site;
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(c) promptly upon becoming aware thereof, notice of any event
or occurrence that results in any noncompliance by it with any applicable law,
rule, regulation, permit or authorization including, without limitation, any
Environmental Law or Environmental Permit insofar as such noncompliance will
adversely affect any Shared Service to be provided by or on behalf of it to the
other party or the performance of any of its other obligations under this
Agreement;
(d) within a reasonable period after becoming aware thereof,
notice of any event or contingency that may significantly increase the other
party's share of costs under this Agreement and any proposals to avoid or reduce
such cost increase; and
(e) promptly, and in any event not later than three (3)
business days prior thereto, notice of the date and time of all meter
calibrations or other tests conducted to verify the accuracy of the equipment
used to determine the quality, quantity or level of Shared Services.
15. Dispute Resolution. (a) In the event that any dispute,
claim or controversy shall arise as to whether either party hereto shall have
fulfilled its respective obligations under this Agreement or a Further
Agreement, the parties agree that within five (5) days after notification
thereof authorized representatives of the parties shall meet to resolve such
dispute, claim or controversy. If, within ten (10) days after the authorized
representatives first began such meetings the parties have not agreed to a
resolution, a Pechiney representative and a Century representative (other than,
in the case of each party, the aforementioned authorized representatives) shall
meet within five (5) days to resolve such dispute, claim or controversy. If,
within ten (10) days after such designated representatives first began such
meetings, the parties have not reached agreement, the dispute, claim or
controversy shall be determined in the manner set forth in Section 15(b) hereof.
(b) If, within five (5) business days after the date referred
to in the last sentence of Section 15(a) hereof the dispute, claim or
controversy in question remains unresolved, such dispute, claim or controversy
shall be finally resolved by arbitration by three arbitrators in New York City
pursuant to the Rules of Conciliation and Arbitration of the International
Chamber of Commerce, and any award rendered by an arbitral panel in accordance
therewith shall be final and binding on the parties and nonappealable. By
execution of this Agreement each of the parties consents to the jurisdiction of
such arbitral panel for itself and in respect of its properties. Any costs of
the proceedings described in this Section 15(b) shall be borne by the parties
equally.
(c) Notwithstanding the other provisions of this Section 15,
if a Further Agreement establishes a dispute resolution procedure, such
procedure shall be used by the parties to resolve any dispute, claim or
controversy between them which arises solely under such Further Agreement. If a
dispute, claim or controversy arises under both this Agreement and a Further
Agreement, the provisions of this Section 15 shall apply thereto.
16. Liability Generally. Neither party shall be responsible
for special or consequential or incidental damages (including lost profits) of
the other party arising out of such party's performance or non-performance of
this Agreement or a Further Agreement, provided
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that nothing herein shall limit a party's liability for damages (other than the
exclusion of special, consequential or incidental damages), including costs of
repair and remediation, to its or the other party's Site. Each party shall use
all reasonable efforts to minimize its damages caused by the other party.
17. Indemnification. (a) Subject to the limitations set forth
in Section 16 and Sections 17(c) and (d) below, Century hereby agrees to
indemnify, hold harmless and defend Pechiney and Pechiney's Affiliates against
and in respect of any and all Losses (including reasonable attorneys' fees and
litigation expenses) incurred by Pechiney and Pechiney's Affiliates caused by or
arising from (i) acts of Century in connection with the performance of (or
failure to perform) any of Century's obligations under this Agreement and the
Further Agreements that would constitute negligence, recklessness or willful
misconduct of Century and (ii) any condition, event or act caused or contributed
to by Century at or affecting a Facility owned by Pechiney.
(b) Subject to the limitations set forth in Section 16 and
Sections 17(c) and (d) below, Pechiney hereby agrees to indemnify, hold harmless
and defend Century and Century's Affiliates against and in respect of any and
all Losses (including reasonable attorneys' fees and litigation expenses)
incurred by Century and Century's Affiliates caused by or arising from (i) acts
of Pechiney in connection with the performance of (or failure to perform) any of
Pechiney's obligations under this Agreement and the Further Agreements that
would constitute negligence (or, in the case of the provision of fire
protection, security and alarm services, as provided for in Section 17 of Annex
A to Exhibit B hereto, gross negligence), recklessness or willful misconduct of
Pechiney and (ii) any condition, event or act caused or contributed to by
Pechiney at or affecting a Facility owned by Century.
(c) A party seeking indemnification pursuant to this Section
17 (the "Indemnified Party") shall give prompt notice to the party from whom
such indemnification is sought (the "Indemnifying Party") of the assertion of
any claim, or the commencement of any action, suit or proceeding, in respect of
which indemnity may be sought hereunder, and will give the Indemnifying Party
such information with respect thereto as the Indemnifying Party may reasonably
request, but failure to give such notice shall not relieve the Indemnifying
Party of any liability hereunder, except to the extent that the Indemnifying
Party has suffered actual prejudice thereby. The Indemnifying Party shall have
the right to undertake the defense of any such claim asserted by a third party
and the Indemnified Party shall cooperate in such defense and make available all
records and materials requested by the Indemnifying Party in connection
therewith at the Indemnifying Party's expense. The Indemnified Party shall be
entitled to participate in such defense, but shall not be entitled to
indemnification with respect to the costs and expenses of such defense if the
Indemnifying Party shall have assumed the defense of the claim with counsel
reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall
not be liable for any claim settled without its consent, which consent shall not
be unreasonably withheld or delayed. The Indemnifying Party may settle and claim
without the consent of the Indemnified Party, but only if the settlement
involves solely monetary damages.
(d) No owner of a Site shall be responsible for Losses
suffered by the other party or its Affiliates or their officers, directors,
employees or agents arising out of or in
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connection with Shared Services provided on such owner's Site, except to the
extent (but subject to Section 16) such Losses resulted from the negligence,
recklessness or willful misconduct of the owner of such Site.
18. Insurance. During the term of this Agreement, each of
Century and Pechiney shall, at its own cost and expense:
(a) provide and keep in force commercial general liability
insurance against liability for death, personal injury and property damage in
amounts, including without limitation in respect of injuries to any one person
and injuries from any one occurrence and in respect of property damage from any
one occurrence that are no less than those customarily maintained by companies
similarly situated to the parties in respect of their operation of facilities
similar to the Sites.
(b) provide and keep in force insurance providing against loss
by fire, lightning, the perils of extended coverage and malicious mischief
covering its assets at the Ravenswood Complex and any other alterations,
improvements, equipment, furnishings, fixtures, property and contents on its
Site (collectively, "Insured Property"), in amounts that are no less than those
customarily maintained by companies similarly situated to the parties in respect
of their operation of facilities similar to the Sites.
Each of Century and Pechiney shall cause each policy carried
by it insuring, as to itself, its Site and Insured Property against loss,
damage, or destruction by fire or other casualty, to be written in a manner so
as to provide that the insurance company waives all rights of recovery by way of
subrogation against Century or Pechiney, as the case may be, in connection with
any loss or damage covered by any such policy.
All policies of insurance required hereunder shall be written
and signed by solvent and responsible insurance companies reasonably
satisfactory to the parties. Unless otherwise provided herein, certificates of
insurance for insurance coverages required hereunder shall be deposited with the
parties prior to occupancy of any Facility. Not less than fifteen (15) days
prior to the expiration dates of said insurance coverages, renewal certificates
shall be deposited with the parties. If a party fails to deposit with the other
any certificate of insurance required hereunder, after thirty (30) days advance
notice and prior to the provision of such certificate, such other party may, at
its option, obtain the insurance coverages in respect of which the required
policy or certificate was not provided, at the expense of the breaching party,
and the cost thereof shall be paid to the non-breaching party upon written
demand.
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19. Miscellaneous.
(a) Assignment. No party may assign or delegate this
Agreement, any Further Agreement or the rights and obligations created hereunder
and thereunder without the prior written consent of the other, whether by way of
transfer, merger with or into such party, consolidation, reorganization or
otherwise, except in connection with a sale or transfer of the assigning party's
entire interest in its Site, in which event such assignment of this Agreement
and any Further Agreement then in effect to the transferee of the property shall
be required. Any purported assignment without such consent shall be void and
shall constitute a breach of this Agreement. Upon the sale or conveyance of all
or any portion of a Site, the Site owner shall cause the purchaser or transferee
to expressly assume the obligations of the Site owner hereunder in respect of
the agreements made herein.
Subject to the foregoing, all of the terms and provisions of
this Agreement and Further Agreements shall be binding upon, and inure to the
benefit of, and shall be enforceable by, the respective successors and assigns
of the parties hereto.
(b) Waiver. No failure or delay on the part of either party in
the exercise of any power, right or privilege arising hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
(c) Severability. If any provision of this Agreement is for
any reason found to be ineffective, unenforceable or illegal, such condition
shall not affect the validity or enforceability of any of the remaining portions
hereof; provided, further, that the parties shall negotiate in good faith to
replace any ineffective, unenforceable or illegal provision with an effective
replacement as soon as is practical.
(d) Multiple Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together constitute one and the same instrument.
(e) No Partnership or Agency Created. Nothing contained herein
or done in pursuance of this Agreement or any Further Agreement shall constitute
the parties as entering upon a joint venture or partnership, or shall constitute
either party the agent for the other party for any purpose or in any sense
whatsoever. Neither party shall hold itself out to any third party as a partner
or agent of the other party hereto contrary to the terms of this Section and
neither party shall be or become liable for any representation, act or omission
of the other party which is contrary to the terms of this Section.
(f) Choice of Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
reference to the conflict of laws provisions thereof.
15
(g) Effect of Headings. The headings of the sections and
subsections contained herein are for convenience of reference only and are not
intended to be and shall not be construed as part of or to affect the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given when received if
personally delivered; when transmitted if transmitted by telecopy, electronic or
digital transmission method; two business days after it is sent, if sent for
expedited delivery by recognized international delivery services (e.g., Federal
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. In each case notice shall be sent to:
If to Century, addressed to:
0000 Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Kitchen, Esq.
Executive Vice President, General Counsel
and Chief Administrative Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to the manager of the Reduction Plant at
the Ravenswood. Site.
If to Pechiney, addressed to:
Pechiney Rolled Products, LLC
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to the manager of the Fabrication Plant
at the Ravenswood Site.
or to such other place and with such other copies as such party may designate as
to itself by written notice to the others.
(i) Entire Agreement; Controlling Documents. This Agreement is
intended to be a complete and integrated agreement with respect to the subject
matter thereof, superseding all prior agreements (except for the Purchase
Agreement and the Ravenswood Indemnity Agreement (as defined in the Purchase
Agreement)) and understandings with respect thereto. This Agreement may not be
amended or modified except by an instrument in writing signed by
16
the parties hereto. Any other provision of this Agreement to the contrary
notwithstanding (other than Section 15(c)), in the event of any inconsistencies
between any provisions of this Agreement and any of the Further Agreements, the
provisions of the relevant Further Agreement shall be controlling. With respect
to the provisions regarding indemnification contained in Section 17 hereof, in
the event of any inconsistencies between any of such provisions and the
provisions regarding indemnification set forth in the Purchase Agreement, the
provisions of the Purchase Agreement shall be controlling.
(j) Waiver of Jury Trial. Each party hereby irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to this
Agreement or any Further Agreement or the actions of any party in the
negotiation, administration, performance and enforcement thereof.
(k) Relationship of Parties. In all matters relating to this
Agreement or any Further Agreement, both parties will be contractors and will be
solely responsible for the acts of their employees, officers, directors and
agents including any third parties providing Shared Services or Shared
Facilities on a party's behalf. Employees, agents or contractors of a party
shall not be considered employees, agents or contractors of the other party.
Neither party shall have the right, power or authority to create any obligation,
express or implied, on behalf of the other party.
(l) Survival. Without prejudice to the survival of the other
agreements of the parties hereunder, the agreements of the parties pursuant to
Sections 7 (to the extent applicable), 16 and 17 hereof shall survive the
termination of this Agreement.
(m) Estoppel Certificate. Each party agrees to furnish to the
other party within ten (10) days of the request therefor, at the request of the
other party, an executed certificate signed by such party containing a list of
the Shared Services and Facilities provided by such party under this Agreement
that are then in effect, and confirming the accuracy of such list.
(n) Business Interference. Neither party shall take any action
which would violate the other's labor contracts, if any, affecting the
Ravenswood Complex or its Site, or create any unreasonable building construction
interruption, work stoppage, picketing, labor disruption or dispute, or take any
action which is likely to interfere with the business of the other party at the
Facilities without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed.
(o) Further Assurances. From time to time, each party agrees
to execute and deliver such additional documents and to provide such additional
information and assistance as the other party shall reasonably require in order
to carry out the terms of this Agreement and any Further Agreement.
(p) Regulations. All employees of each party when on the
property of the other party in connection with this Agreement and any Further
Agreement and the easements to be granted pursuant thereto and the services to
be provided hereunder will conform to the rules and regulations concerning
health, safety and security of such other party with respect to its Site.
17
(q) Compliance with Laws. The parties hereto shall use
reasonable efforts to comply fully with all applicable requirements of law in
connection with the performance of its obligations and the receipt of services
hereunder and any Further Agreement.
20. Certain Definitions. As used in this Agreement, the
following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Affiliate" means, as to any person or entity, any other
person or entity that, directly or indirectly, controls, is controlled by or is
under common control with such person or entity or is a director or officer of
such person or entity. For purposes of this definition, the term "control"
(including the terms "controlling", "controlled by" and "under common control
with") of a person or entity means the possession, direct or indirect, of the
power to vote 50% or more of the voting stock of such person or entity or to
direct or cause the direction of the management and policies of such person or
entity, whether through the ownership of voting stock, by contract or otherwise.
"Environmental Law" means any federal, state or local law,
statute, ordinance, rule, regulation or common law, and any legally binding
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent order, consent decree or judgment, in each case in
effect and as amended as of the date hereof or at any time while this Agreement
remains in effect, regulating the generation, use, handling, transportation,
treatment, storage, disposal, release or discharge of any Hazardous Material.
"Environmental Permits" means all permits, approvals,
regulations and other governmental consents of any Governmental Authority
necessary for the use, occupancy or operation of the Sites and required by any
applicable Environmental Law.
"Event of Force Majeure" means, for any person or entity, any
event, circumstance or condition that is beyond the control of such person or
entity and that prevents such person or entity from performing, in whole or in
part, its obligations under this Agreement or any Further Agreement. Without
limiting the generality of the foregoing, the following occurrences shall be
deemed to be Events of Force Majeure: (a) Acts of God, fire, explosion,
accident, flood storm or other natural phenomenon; (b) war (whether declared or
undeclared), riot, blockade, sabotage or acts of public enemies; (c) national
defense requirements; (d) compliance with any law, rule, regulation or
Governmental Order that (i) becomes effective after the date of the Closing and
(ii) is binding on the person or entity seeking to rely on such law, rule,
regulation or Governmental Order to excuse performance and such person's or
entity's compliance therewith is not voluntary or optional; (e) strikes,
lockouts or injunctions (it being understood that nothing herein shall require a
person or entity to settle such or any other kind of labor dispute except on
such terms as shall be satisfactory to such person or entity); (f)
unavailability (for reasons other than the cost thereof) of adequate fuel,
power, raw materials, labor or transportation facilities; and (g) breakage or
failure of key machinery or key equipment.
18
"Governmental Authority" means any United States federal,
state or local or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal or
judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Hazardous Material" means petroleum and petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and any other chemicals, materials or
substances, in each case and to the extent regulated under any applicable
Environmental Law.
"Losses" means any and all liabilities, losses, damages,
claims, costs, interests, judgments, fines, amounts paid in settlement and
expenses actually incurred by a party.
19
IN WITNESS WHEREOF, the parties hereto have had this Agreement
executed by their respective authorized officers as of the date first written
above.
CENTURY ALUMINUM OF WEST VIRGINIA, INC.
By: /s/ Xxxxxx X. Kitchen
-----------------------------------------
Its: Vice President
-----------------------------------------
PECHINEY ROLLED PRODUCTS, LLC
By: /s/ X.X. Xxxxxx
-----------------------------------------
Its: Vice President
-----------------------------------------
20
EXHIBITS
A - Site Plan
B - List and Description of Shared Services
C - Power Subcontract
D - Partial Assignment Agreement with respect to Gas Contracts
E - Environmental Services Agreement
F - Tank Farm Lease Agreement
G - Met Tower License Agreement
H - Reciprocal Easement Agreement
21
EXHIBIT A
SITE PLAN
22
EXHIBIT B
SHARED SERVICE OWNER MANAGER
-------------- ----- -------
Well Water Pechiney Pechiney
Fire Water Each Each
Drinking Water Each Each
Secondary Wastewater Treatment Century Century
Steam Century Century
Transmission Facility - Century Century
Except Single Circuit Lines that feed
Pechiney Site and Substation thereat
Transmission Facility - Single Circuit Pechiney Pechiney
Lines that feed Pechiney Site and
Substation thereat
Dust Waste Facility Pechiney Pechiney
Solid Waste Facility Pechiney Pechiney
Aluminum Scrap Each Each
Rail lines - Century Site Century Century
Rail lines - Pechiney Site Pechiney Pechiney
River Dock Century Century
Gas Facilities Pechiney Site Pechiney Pechiney
Gas Facilities Century Site Century Century
Compressed Air Each Each
Stores Pechiney Pechiney
(Century to construct own within 18 months)
Outfalls/Blocking Xxxxx Managed by agreement under Exhibit E
Metal Analysis Lab Pechiney Pechiney
Fire, Medical, Security, Alarm System Pechiney Pechiney (if and until split)
Administrative Offices Pechiney Pechiney
(Century to construct own within 6-12 months)
Administrative Services Pechiney Pechiney
(HR/Accounting/Purchasing) (Century to establish own within 3-6 months)
Parking Each Each
23
Training Facility Pechiney Pechiney
Janitorial Each Each
Fencing-Common Shared Shared
Truck Scale Pechiney Pechiney
(Century to install own within 18 months)
Recreation Center Century Century
Shared Software As provided in Annex A
