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EXHIBIT 10.6
AGREEMENT FOR THE PURCHASE AND SUPPLY
OF ELECTRICITY, STEAM AND OTHER PRODUCTS
BY AND AMONG
CEVCO X.X.X.
XXXXX-XXXXXXX CHIMIE S.A., on its own behalf and
behalf of the affiliates on Exhibit A hereto
- AND -
CHLORALP S.A.S.
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RELATING TO
A COGENERATION FACILITY LOCATED IN XXXX XX XXXXX, XXXXXX
XXXXXXXX XX XXXXXX
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS AND INTERPRETATION.................................................................. 2
1.1 DEFINITIONS AND INTERPRETATION............................................................ 2
ARTICLE II - RIGHTS AND OBLIGATIONS REGARDING ELECTRICITY................................................... 15
2.1 PURCHASE AND SUPPLY OF ELECTRICITY........................................................ 15
2.2 CURRENT AND FUTURE ARRANGEMENTS WITH EDF.................................................. 15
2.3 ELECTRICITY BUDGETS; CONFIRMATION OF ORDERS............................................... 19
2.4 PRICE OF ELECTRICITY...................................................................... 19
ARTICLE III - RIGHTS AND OBLIGATIONS REGARDING STEAM........................................................ 21
3.1 PURCHASE AND SUPPLY OF STEAM.............................................................. 21
3.2 STEAM BUDGETS; CONFIRMATION OF ORDERS..................................................... 23
3.3 MINIMUM PURCHASE AND ACCEPTANCE OF STEAM (OBLIGATION TO TAKE)............................. 24
3.4 TAKE OR PAY OBLIGATIONS................................................................... 26
3.5 RESPONSIBILITIES FOR FIXED STEAM COSTS ................................................... 27
3.6 STEAM PAYMENTS............................................................................ 27
3.7 AMENDMENT OF REFERENCE STEAM BUDGETS...................................................... 29
ARTICLE IV - RIGHTS AND OBLIGATIONS REGARDING OTHER PRODUCTS............................................... 31
4.1 PURCHASE AND SUPPLY OF DEMINERALIZED WATER AND BOILER FEED WATER.......................... 31
4.2 PURCHASE AND SUPPLY OF HYDROGEN AND CONDENSATES........................................... 31
ARTICLE V - ................................................................................................ 32
ARTICLE VI - BILLING AND PAYMENT............................................................................ 32
6.1 MONTHLY INVOICE........................................................................... 32
6.2 PAYMENT................................................................................... 33
ARTICLE VII - METERING AND TESTING.......................................................................... 34
7.1 METERS.................................................................................... 34
7.2 INVOICE METER CALIBRATION AND BALANCING TESTING........................................... 35
7.3 METER READING............................................................................. 36
ARTICLE VIII - NEW CUSTOMERS................................................................................ 36
8.1 NEW ELECTRICITY AND STEAM CUSTOMERS....................................................... 36
8.2 EFFECT OF NEW STEAM CUSTOMERS............................................................. 37
ARTICLE IX - ADMINISTRATION OF PURCHASE AND SUPPLY OBLIGATIONS............................................. 37
9.1 GOOD ENGINEERING AND OPERATING PRACTICES; PROTECTION OF FACILITIES........................ 37
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9.2 COMPLIANCE WITH LAWS...................................................................... 37
9.3 OPERATION AND MAINTENANCE STANDARDS....................................................... 38
9.4 DELIVERY STANDARDS; TITLE AND RISK OF LOSS................................................ 38
9.5 SCHEDULE OF OUTAGES; COORDINATION OF SITE ACTIVITIES...................................... 39
9.6 PRODUCT EXPORT............................................................................ 40
9.7 GOVERNMENT PERMITS AND LICENSES........................................................... 41
9.8 INTERCONNECTION FACILITIES................................................................ 41
9.9 INSURANCE................................................................................. 41
9.10 STEAM OR ELECTRICITY SHORTFALL............................................................ 41
9.11 TRANSPORT OF REPROCESSED STEAM............................................................ 42
ARTICLE X - INDEMNIFICATION................................................................................. 43
10.1 INDEMNIFICATION........................................................................... 43
10.2 NOTICE AND PROCEDURE...................................................................... 43
ARTICLE XI - LIMITATION OF LIABILITY........................................................................ 44
ARTICLE XII - CONTRACT TERM................................................................................. 44
12.1 CONTRACT TERM............................................................................. 44
12.2 REPLACEMENT CEVCO AGREEMENT............................................................... 44
ARTICLE XIII - EVENTS OF DEFAULT; REMEDIES.................................................................. 45
13.1 TERMINATION BY THE SITE PARTIES........................................................... 45
13.2 TERMINATION BY CEVCO...................................................................... 46
13.3 SUSPENSION OF SERVICE AND SET-OFF......................................................... 47
13.4 RIGHTS AND OBLIGATIONS OF THE PARTIES..................................................... 47
13.5 WAIVER OF BREACH.......................................................................... 47
13.6 PROCEDURE AND AGREEMENT TERMINATION DATE.................................................. 47
13.7 OBLIGATIONS FOLLOWING THE TERMINATION..................................................... 48
13.8 EARLY TERMINATION NOT TO OCCUR............................................................ 48
13.9 REMEDIES NON-EXCLUSIVE.................................................................... 48
ARTICLE XIV - DIFFERENCE RESOLUTION......................................................................... 48
14.1 OFFICER CONSULTATIONS..................................................................... 48
14.2 TECHNICAL DIFFERENCES..................................................................... 48
14.3 ARBITRATION............................................................................... 50
ARTICLE XV - RELIEF EVENTS - FORCE MAJEURE.................................................................. 50
15.1 DEFINITION................................................................................ 50
15.2 NOTIFICATION OF THE OCCURRENCE OF A RELIEF EVENT.......................................... 52
15.3 EXCUSE FROM COMPLIANCE WITH OBLIGATIONS................................................... 52
15.4 PAYMENTS BY THE SITE PARTIES DURING RELIEF EVENTS......................................... 53
ARTICLE XVI - NOTICES....................................................................................... 53
16.1 NOTICE.................................................................................... 53
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ARTICLE XVII - MISCELLANEOUS PROVISIONS..................................................................... 54
17.1 ENTIRE AGREEMENT.......................................................................... 54
17.2 SEVERABILITY.............................................................................. 54
17.3 NO WAIVER................................................................................. 54
17.4 MODIFICATION OR AMENDMENT................................................................. 54
17.5 GOVERNING LAW AND INTERPRETATION.......................................................... 54
17.6 HEADINGS.................................................................................. 54
17.7 ORIGINALS OF THIS CEVCO AGREEMENT......................................................... 55
17.8 RELATIONSHIP OF THE PARTIES............................................................... 55
17.9 CONTRACTUAL CURRENCY...................................................................... 55
17.10 ASSIGNMENT................................................................................ 56
17.11 LANGUAGE.................................................................................. 58
17.12 SURVIVAL.................................................................................. 58
EXHIBIT A - List of RPC Affiliates
SCHEDULE I - New 1997 Budget
SCHEDULE II - Form of Preliminary EDF Contract
SCHEDULE III - Specifications
SCHEDULE IV - Ownership, Reading and Maintenance of Meters
SCHEDULE V - Points of Interconnection
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AGREEMENT FOR THE SUPPLY AND PURCHASE
OF ELECTRICITY, STEAM AND OTHER PRODUCTS
THIS CEVCO AGREEMENT FOR THE SUPPLY AND PURCHASE OF ELECTRICITY, STEAM AND
OTHER PRODUCTS (as the same may be amended, modified or supplemented from time
to time, this "Agreement" or this "CEVCO Agreement") is made and entered into as
of this 17th day of October, 1997,
BETWEEN:
CEVCO G.I.E., a groupement d'interet economique, organized under the laws
of the Republic of France, with a capital of 73,010,000 Francs, whose registered
office is located at 25, quai Xxxx Xxxxxx, 92400 Courbevoie, registered with the
Registry of Commerce and Companies of Nanterre under number C 412 577 835
(together with its permitted successors and assigns, "CEVCO");
AND:
XXXXX-XXXXXXX CHIMIE S.A., a societe anonyme organized under the laws of
the Republic of France, with a capital of 2,703,447,200 Francs, whose registered
office is located at 25, quai Xxxx Xxxxxx, 92400 Courbevoie Cedex, registered
with the Registry of Commerce and Companies of Nanterre under number B 642 014
526, on its own behalf and, subject to Section 17.8.2, on behalf of the
affiliates and other parties set forth on Exhibit A (together with their
permitted successors and assigns, "RPC");
AND:
CHLORALP S.A.S., a societe par actions simplifiee organized under the laws
of the Republic of France, with a capital of 302,724,000 Francs, whose
registered office is located at 25, quai Xxxx Xxxxxx, 92408 Courbevoie,
registered with the Registry of Commerce and Companies of Nanterre under number
B 000 000 000 (together with its permitted successors and assigns, "ChlorAlp" or
"Newco" and, collectively with RPC, the "Site Parties").
Recitals
WHEREAS, RPC is the owner of the Site (as defined below);
WHEREAS, both RPC and ChlorAlp shall operate chemical production facilities
at the Site requiring electricity, steam and other Products and producing
certain other Products;
WHEREAS, CEVCO operates the CEV Facility at the Site, which produces steam,
electricity, Demineralized Water and Boiler Feed Water and also uses Condensates
and Hydrogen; and
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WHEREAS, RPC and ChlorAlp desire to enter into this CEVCO Agreement
pursuant to which CEVCO shall supply the Site Parties with their requirements
for electricity, steam, Demineralized Water and Boiler Feed Water and the Site
Parties will supply CEVCO with Condensates and Hydrogen, all in the manner set
forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, representations, warranties and covenants set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS AND INTERPRETATION
Capitalized terms used in this CEVCO Agreement shall have the meaning give
to each of them in this Section. Terms which are not expressly defined
shall be construed according to the meaning given by the corresponding
technical language or, in the absence of such technical language, the
natural and obvious meaning according to general usage. All terms in the
singular shall also include plural and vice versa, provided the context so
requires it. The words "including", "include" and "included" shall mean
"including, but not limiting to".
The following capitalized terms shall have the following meanings:
"ADDITIONAL QUANTITIES OF ELECTRICITY" means the additional electricity
required by the Site Parties to satisfy their requirements therefor in
respect of their operations on the Site, which requirements cannot be met
by the Available Capacity of the Old Turbines.
"AGREEMENT" has the meaning set forth in the first paragraph hereof.
"AVAILABLE CAPACITY" means the maximum output capacity of the CEV Facility
with respect to Electricity, Steam and the other Products to be sold by
CEVCO hereunder in operation, under normal operating procedures and
conditions in compliance with Good Engineering and Operating Practices and
with all applicable laws, rules, regulations and Permits.
"BANKRUPTCY" has the meaning set forth in Section 1.1 of the CEVCO
Stockholders Agreement.
"BETTER OFFER" has the meaning set forth in Section 2.4.1(ii) hereof.
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"BF 1700 GAS FUEL BOILER" shall mean the BF 1700 gas fuel boiler owned by
CEVCO and generating Steam without co-producing electricity.
"BF 1700 GAS FUEL BOILER COST" has the meaning set forth in Document III
of Schedule I attached hereto.
"BOILER FEED WATER" means the boiler feed water used by CEVCO and/or to be
sold to the Site Parties and conforming with the Specifications.
"BOILER FEED WATER PRICE" has the meaning set forth in Document III of
Schedule I attached hereto.
"BR UNIT" means the existing incinerator unit owned RPC and currently
located on the Pont de Claix Site.
"BUDGET AMENDMENT NOTICE" has the meaning set forth in Section 3.7.1
hereof.
"BUSINESS DAY" means any day other than a Saturday, Sunday, a national
holiday in the Republic of France.
"CEVCO" has the meaning set forth in the first paragraph of this CEVCO
Agreement.
"CEVCO AGREEMENT" has the meaning set forth in the first paragraph
hereof.
"CEVCO/CHLORALP SERVICES AGREEMENT" means the services agreement, dated as
of October 17, 1997, by and between CEVCO and ChlorAlp, providing for the
services to be supplied by and between CEVCO and ChlorAlp, as the same may
be amended, modified or supplemented from time to time.
"CEVCO STOCKHOLDERS AGREEMENT" shall mean the CEVCO Stockholders
Agreement, dated as of October 17, 1997, by and among the Parties, as the
same may be amended, modified or supplemented from time to time.
"CEV FACILITY" means the New Turbines, the Cogeneration Unit, the BF 1700
Gas Fuel Boiler, the Electric Boiler, together with the distribution
equipment for electricity, steam and the other Products produced by the
foregoing to and including the Points of Interconnection therefor,
including but not limited to the Interconnection Facilities (in compliance
with Section 9.8.2), the Transformers, meters, pipes and cables.
"CEV FACILITY STEAM COST" has the meaning set forth in Document III of
Schedule I attached hereto.
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"CHART A" has the meaning set forth in Document II of Schedule I attached
hereto.
"CHART B" has the meaning set forth in Document II of Schedule I attached
hereto.
"CHART C" has the meaning set forth in Document II of Schedule I attached
hereto.
"CHART D" has the meaning set forth in Document III of Schedule I attached
hereto.
"CHART E" has the meaning set forth in Document III of Schedule I attached
hereto.
"CHLORALP" has the meaning set forth in the first paragraph of this CEVCO
Agreement.
"CHLOR-ALKALI PLANT" means the chlorine and caustic soda manufacturing and
distribution facility owned by ChlorAlp and located at Pont de Claix,
France.
"CLAIMANT" shall have the meaning set forth in Section 10.2.1 hereof.
"COGENERATION UNIT" means the cogeneration unit (including the New
Turbines) owned and/or leased by CEVCO producing both electricity and
steam, which unit constitutes a Qualifying Cogeneration Facility.
"COGENERATION UNIT COST" has the meaning set forth in Document III of
Schedule I attached hereto.
"CO/H2 UNIT" means the existing production unit and currently located on
the Site, which unit produces carbon monoxide (CO) and Hydrogen.
"CONDENSATES" means condensed water supplied by one or more of the Site
Parties to CEVCO and conforming with the Specifications.
"CONDENSATES PRICE" has the meaning set forth in Document III of Schedule
I attached hereto.
"CONTRACT TERM" means the total term of this CEVCO Agreement as defined in
Section 12.1 hereof.
"CONTRACT YEAR" means each twelve (12) Month period commencing on January
1 of each year and ending on December 31. Notwithstanding the foregoing,
the first Contract Year shall commence on the date of this CEVCO Agreement
and end on the next December 31, and the last Contract Year of the
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Contract Term shall commence on the relevant January 1 and end on the last
calendar day of the Contract Term.
"CONTRACTUAL CURRENCY" has the meaning set forth in Section 17.9.1
hereof.
"DIFFERENCE" has the meaning set forth in Section 14.1 hereof.
"DEMINERALIZED WATER" means de-ionized water produced by CEVCO and
supplied to the Site Parties and conforming with the Specifications.
"DEMINERALIZED WATER PRICE" has the meaning set forth in Document III of
Schedule I attached hereto.
"EDF" shall mean Electricite de France, together with its successors and
assigns.
"EDF ARRANGEMENTS" has the meaning set forth in Section 2.2.4 hereof.
"EDF PRELIMINARY CONTRACT" has the meaning set forth in Schedule I hereto,
a copy of which is attached hereto in Schedule II.
"ELECTRIC BOILER" shall mean the existing electric boiler owned by CEVCO
and generating steam without co-producing electricity.
"ELECTRIC BOILER COST" has the meaning set forth in Document III of
Schedule I attached hereto.
"ELECTRICITY" means the amount of LM Electricity and/or HV Electricity for
Rectifiers supplied to either Site Party by or through CEVCO.
"ELECTRICITY BUDGET" has the meaning set forth in Section 2.3.2 hereof.
"ELECTRICITY PURCHASE AGREEMENT" has the meaning set forth in Section
2.2.3 hereof.
"ELECTRICITY SALES AGREEMENT" has the meaning set forth in Section 2.2.2
hereof.
"ELECTRICITY SOLD TO EDF" means the high voltage electricity sold or to be
sold to the EDF ("fournie" within the meaning of article 5 of the EDF
Preliminary Contract) pursuant to the Electricity Sales Agreement.
"ELECTRICITY UPPER LIMIT" means for ChlorAlp, 108% of its standard
consumption of HV Electricity for Rectifiers
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contemplated by its Reference Electricity Budget, as calculated in
Document IV of Schedule I (line 9 for ChlorAlp).
"ELECTROLYSIS ELECTRICITY" means the electricity produced by the
Rectifiers and used by ChlorAlp to produce chlorine.
"ELECTROLYSIS ELECTRICITY PRICE" has the meaning set forth in Document III
of Schedule I attached hereto.
"EVENT OF DEFAULT" means any of the events described as such in Sections
13.1 and 13.2.
"EXCESS ELECTRICITY" has the meaning set forth in Section 2.2.1 hereof.
"EXISTING ELECTRICITY SALES AGREEMENT" means the agreement by and between
RPC and EDF, pursuant to which excess electricity produced by the CEV
Facility and not consumed on the Site is sold to EDF.
"FIXED HV ELECTRICITY FOR RECTIFIERS" means the quantities of high-voltage
electricity which are to enter the Rectifiers and are used to run the
ancillary equipment of the Rectifiers, which quantities do not vary with
the level of production of Electrolysis Electricity.
"FIXED STEAM COSTS PER TON OF STEAM" is equal to, for any given period:
[*]
where
-----
a = for any given period, the fixed costs and depreciation, on a
per metric ton of steam basis, that would be incurred in
connection with the operation and maintenance of a standard
oil/gas boiler having a 92% efficiency rate, as (i) determined
by reference to generally accepted industry reference data,
(ii) such costs and depreciation are currently set forth in
line 50 of Document II of Schedule I hereto and (iii) such may
vary from time to time.
b = for any given period, the actual fixed costs, depreciation and
financial and other expenses for (i) the BF 1700 Gas Fuel
Boiler, as such costs, depreciation and expenses are currently
reflected in lines 73 through and including 77 of Document II
of Schedule I; and (ii) the Electric Boiler, as such costs,
depreciation and expenses are
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* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.
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currently reflected in lines 78 and 79 of Document II of
Schedule I hereto, and as such may vary from time to time.
c = for any given period, the actual fixed costs, depreciation and
financial and other expenses for the production of Steam, as
such costs, depreciation and expenses are currently reflected
in lines 80 through and including 84 of Document II of
Schedule I hereto, and as such may vary from time to time.
d = for any given period, the actual fixed costs, depreciation and
financial and the other expenses (including taxes) of
operating and maintaining the steam distribution network
comprising part of the CEV Facility, as such costs,
depreciation and expenses are currently reflected in lines 114
through and including 117 of Document II of Schedule I hereto,
and as such may vary from time to time.
e = for any given period, the aggregate quantities of Steam,
measured in metric tons, set forth from time to time in lines
31 through and including 34 of Document I of Schedule I, (or
the equivalent lines of any Steam Budget), and as such may
vary from time to time.
f = for any given period, the aggregate quantities of Reprocessed
Steam consumed by the Site Parties, measured in metric tons
and as set forth from time to time in line 27 of Document I of
Schedule I (or the equivalent lines of the Steam Budgets of
the Site Parties), and as such may vary from time to time.
g = for any given period, the aggregate quantities of Steam to be
produced by the Cogeneration Unit, measured in metric tons, as
currently set forth from time to time on line 24 of Document I
of Schedule I (or the equivalent lines of the Steam Budgets of
the Site Parties), and as such may vary from time to time.
"FRANCS" means the lawful currency of the Republic of France.
"GDF" shall mean Gaz de France, together with its successors and assigns.
"GLOBAL LOWER LIMIT" means for RPC, 96% and for ChlorAlp, 92% of their
respective standard consumptions of HP Steam
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and LP Steam contemplated by their respective Reference Steam Budgets then in
effect, as calculated in Document IV of Schedule I (line 5 for ChlorAlp and line
8 for RPC).
"GLOBAL MINIMUM QUANTITIES" has the meaning set forth in Section 3.3.1 hereof.
"GLOBAL UPPER LIMIT" means for RPC, 104% and for ChlorAlp, 108% of their
respective standard consumptions of HP Steam and LP Steam contemplated by their
respective original Reference Steam Budgets, as calculated in Document IV of
Schedule I (line 3 for ChlorAlp and line 6 for RPC) and without regard to any
amendments to the Reference Steam Budget of such Site Party pursuant to Section
3.7 hereof.
"GOOD ENGINEERING AND OPERATING PRACTICES" means the practices, methods and acts
engaged in or approved by the majority of Western European cogeneration
facilities that, at that particular time, in the exercise of reasonable judgment
in light of the facts known or that reasonably should have been known at the
time a decision is made, would be expected to accomplish the desired result in a
manner consistent with law, regulation, Permits, reliability, safety, economy
and environmental protection.
With respect to the CEV Facility, Good Engineering and Operating Practices
include, but are not limited to, taking reasonable steps to ensure that:
(a) Adequate materials, resources and supplies are available to
meet the CEV Facility's needs under normal conditions and
reasonably anticipated abnormal conditions;
(b) Sufficient operating personnel are available and are adequately
experienced and trained to operate the CEV Facility properly,
efficiently and within manufacturer's guidelines and
specifications and are capable of responding to reasonably
anticipated abnormal conditions;
(c) Preventative, routine and non-routine maintenance and repairs
are performed on a basis that could normally be expected to
result in a reliable and safe operation, consistent with
efficient and economical operations in accordance with
manufacturer's recommendations and are performed by trained and
experienced personnel utilizing proper equipment, tools and
procedures;
(d) Appropriate monitoring and testing is done to ensure equipment
is functioning as designed, in accordance with the technical
specifications for
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the CEV Facility and to provide assurance that equipment will
function properly under both normal and reasonably anticipated
abnormal conditions; and
(e) The CEV Facility is operated in a manner safe to workers, the
general public, the environment, and complying with among other
conditions: steam pressure, temperature, moisture and chemical
content, quality of make-up water, operating voltage, current,
frequency, rotational speed, polarity, synchronization and
system control limits.
"HP LOWER LIMIT" means for RPC, 96% and for ChlorAlp, 92% of their respective
standard consumptions of HP Steam contemplated by their respective Reference
Steam Budget then in effect, as calculated in Document I of Schedule I (line 94
for ChlorAlp and line 100 for RPC).
"HP STEAM" means the high pressure steam produced by the CEV Facility and
conforming with the Specifications.
"HP UPPER LIMIT" means for RPC, 104% and for ChlorAlp, 108% of their respective
standard consumptions of HP Steam contemplated by their respective original
Reference Steam Budgets, as calculated in Document I of Schedule I (line 92 for
ChlorAlp and line 98 for RPC) and determined without regard to any amendments to
the Reference Steam Budget of such Site Party pursuant to Section 3.7.
"HV ELECTRICITY FOR EDF" means the high-voltage electricity physically delivered
or to be delivered ("livree" within the meaning of article 5 of the EDF
Preliminary Contract) to EDF pursuant to the Electricity Sales Agreement.
"HV ELECTRICITY FOR RECTIFIERS" means the Variable HV Electricity For Rectifiers
and the Fixed HV Electricity For Rectifiers.
"HV ELECTRICITY FOR THE LM ELECTRICITY" means the high-voltage electricity
produced by the CEV Facility or purchased under the Electricity Purchase
Agreement and, in each case, to be used by the Transformers to transform such
electricity into LM Electricity.
"HV ELECTRICITY FROM THE NEW TURBINES" means the high-voltage electricity
produced by the New Turbines.
"HYDROGEN" means the hydrogen produced by the CO/H2 Unit and conforming with the
Specifications.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section 10.2.1 hereof.
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"INDIVIDUAL EXTRA STEAM CAP" shall have the meaning set forth in Section 3.6.3
hereof.
"INDIVIDUAL MINIMUM QUANTITIES" has the meaning set forth in Section 3.3.1
hereof.
"INTERCONNECTION FACILITIES" means those facilities required to connect the CEV
Facility to the facilities of each of the Site Parties on the Site and to
connect the facilities of each of the Site Parties to the CEV Facility, as
applicable, in order to permit a flow of electricity, steam and other Products
as well as a flow of Reprocessed Steam between them in accordance with the terms
and conditions set forth in this CEVCO Agreement.
"INTERIM PERIOD" means the period from and after the execution of this CEVCO
Agreement to, but not including, the execution and delivery of the Electricity
Sales Agreement and the Electricity Purchase Agreement.
"INTERNAL STEAM" means the steam produced by any existing or future unit of any
Site Party and consumed by such unit having produced such steam, and not
distributed and transported by CEVCO pursuant to Section 9.11.
"INVOICE METERS" means an integrated set of devices appropriate for measuring
the Electricity, Steam or other Products supplied by or to the Site Parties or
for measuring the Reprocessed Steam of a Site Party to be transported by CEVCO,
connected at or near the applicable Points of Interconnection.
"KW", "KW" or "KW" means kilowatt.
"KWH" or "KWH" means kilowatthour.
"XXXXXXX" means XXXXXXX INDUSTRIES INC., a corporation organized under the laws
of the State of Delaware, United States of America, whose principal executive
office is located at 0000 Xxxxxxx Xxxxx Xxxx X.X., Xxxxxxx, Xxxxxxx 00000-0000,
U.S.A., its successors and assigns.
"LATE PAYMENT RATE" means the late payment rate of interest equal to the PIBOR
Rate for the relevant period plus 3% percent.
"LM ELECTRICITY" means the electricity produced by processing HV Electricity For
the LM Electricity through the Transformers.
"LM ELECTRICITY PRICE" has the meaning set forth in Document III of Schedule I
attached hereto.
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"LOSSES" means any and all (i) losses, damages, liabilities, payments and
obligations, but excluding any indirect or consequential damages, liabilities or
payments, and (ii) all related expenses, including, among other things,
reasonable legal costs.
"LP LOWER LIMIT" means for RPC, 96% and for ChlorAlp, 92% of their respective
standard consumptions of LP Steam contemplated by their respective Reference
Steam Budgets then in effect, as calculated in Document I of Schedule I (line 97
for ChlorAlp and line 103 for RPC).
"LP STEAM" means the low pressure steam produced by the CEV Facility and
conforming with the Specifications.
"LP UPPER LIMIT" means for RPC, 104% and for ChlorAlp, 108% of their respective
standard consumptions of LP Steam contemplated by their respective original
Reference Steam Budgets, as calculated in Document I of Schedule I (line 95 for
ChlorAlp and line 101 for RPC) and determined without regard to any amendments
to the Reference Steam Budget of such Site Party pursuant to Section 3.7.
"MAJOR OUTAGES" means any scheduled outages of any Old Turbine (and/or related
equipment) or any New Turbine (and/or related equipment) which will result in
the non-operation of such Old Turbine or New Turbine for a consecutive period of
three (3) or more days.
"MAXIMUM CONDENSATES REQUIREMENTS" has the meaning set forth in Section 4.2.1
hereof.
"MAXIMUM TAKE OR PAY THRESHOLD" has the meaning set forth in Section 3.4 hereof.
"MINIMUM QUANTITIES" means the Individual Minimum Quantities.
"MONTH" means a period that starts at 8:00 a.m. (determined at the Site) of the
first day of any calendar month and ends at 8:00 a.m. (determined at the Site)
the first day of the calendar month immediately following.
"MW" OR "MW" means megawatt.
"MWH" OR "MWH" means megawatthour.
"NEW ELECTRICITY CUSTOMER" has the meaning set forth in Section 8.1 hereof.
"NEW STEAM CUSTOMER" has the meaning set forth in Section 8.1 hereof.
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"NEW 1997 BUDGET" has the meaning set forth in Schedule I hereto.
"NEWCO" has the meaning set forth in the first paragraph of this Agreement.
"NEW TURBINES" means the three FT-8 turbines leased by CEVCO (as assignee)
pursuant to a Lease Agreement, dated January 23, 1991, with UFB Locabail S.A.
"NOTICE" means the written notification given pursuant to Article XVI or any
other written communication to be formally delivered under this CEVCO Agreement.
"OLD TURBINES" means the gas turbines owned by CEVCO other than the New
Turbines.
"PARTIES" means the Site Parties and CEVCO.
"PERMIT" means any authorization, approval, decision, license, permit,
certification, exception or registry issued by or with any governmental
authority which a Party is required to obtain for the performance of its
obligations hereunder or for the operation, maintenance and ownership of (i)
with respect to CEVCO, the CEV Facility and (ii) with respect to any Site Party,
its property and operations on the Site, including its Interconnection
Facilities.
"PIBOR RATE" means the interest rate from time to time in effect for PIBOR
deposits of one month duration as published in Les Echos - Taux monetaire -
PIBOR, or such successor interbank offer rate for ECU deposits of one month to
the extent at any time hereafter the ECU shall be substituted for the Franc as
the currency of the Republic of France.
"POINTS OF INTERCONNECTION" means the physical points at which Products or
Reprocessed Steam are delivered or redelivered (or deemed delivered or
redelivered) from the Interconnection Facilities of one Party to the
Interconnection Facilities of another Party, which shall be the points
identified on the maps attached hereto, as Schedule V; provided, however, that
with respect to Reprocessed Steam exiting the steam network comprising the CEV
Facility as contemplated by Section 9.11.3, the Points of Interconnection for
such Reprocessed Steam exiting the CEV Facility shall, under circumstances
contemplated under Section 9.11.3, be the same Points of Interconnection as
those applicable for HP Steam exiting the CEV Facility.
"PONT DE CLAIX SITE" means the Site.
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"PRODUCTS" means Electricity, Steam, Demineralized Water, Condensates, Hydrogen,
and Boiler Feed Water.
"PURCHASED EDF ELECTRICITY" means the HV electricity purchased from EDF pursuant
to the Electricity Purchase Agreement.
"QUALIFYING COGENERATION FACILITY" means a power cogeneration facility of the
type described as qualifying for "cogeneration status" pursuant to French Decree
dated May 20, 1955, as amended by the French Decree No. 94-1110, dated December
20, 1994.
"RECTIFIERS" means the rectifiers ("transfo-redresseurs") owned by ChlorAlp and
used to transform HV Electricity for Rectifiers into Electrolysis Electricity.
"REFERENCE DATA" has the meaning set forth in Section 5.1.
"REFERENCE ELECTRICITY BUDGET" has the meaning set forth in Section 2.3.1
hereof.
"REFERENCE STEAM BUDGET" has the meaning set forth in Section 3.2.1 hereof.
"REFERENCE STEAM FROM AN OIL/GAS STANDARD BOILER" or "Reference Steam From An
OGSB" means the steam that would be produced by a standard oil/gas standard
boiler having a 92% efficiency ratio, as determined by reference to generally
accepted industry reference data.
"REFERENCE STEAM FROM COGENERATION UNIT" or "Reference Steam From CU" means the
steam that is produced by the Cogeneration Unit, and which is used as a
reference to calculate the Upper HP Steam Price and the Upper LP Steam Price.
"RELIEF EVENT" has the meaning set forth in Section 15.1 hereof.
"REPLACEMENT AGREEMENT" has the meaning set forth in Section 12.2 hereof.
"REPROCESSED STEAM" means the steam, conforming with the Specifications, that is
produced by (i) in the case of RPC, the CO/H2 Unit and the BR Unit and (ii) with
respect to either Site Party, any other existing or future unit controlled by it
or its Affiliates on the Pont de Claix Site and that CEVCO distributes and
transports pursuant to Section 9.11;
"RPC" has the meaning set forth in the first paragraph of this Agreement.
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"RPC/CEVCO SERVICES AGREEMENT" means the RPC/CEVCO Services Agreement, dated as
of October 17, 1997, by and between RPC and CEVCO providing for the services to
be supplied by and between RPC and CEVCO, as the same may be amended, modified
or supplemented from time to time.
"RPC OPERATIONS" shall mean the operations (including services) of RPC and its
affiliates (including the parties listed on Exhibit A, but excluding ChlorAlp
and CEVCO) located at the Site.
"SITE" shall mean the site owned by RPC in Pont de Claix (Isere), France on
which the Chlor-Alkali Plant, the CEV Facility and the RPC Operations are
located.
"SITE PARTIES" has the meaning set forth in the first paragraph of the
Agreement.
"SIX-MONTH ELECTRICITY PROJECTIONS" has the meaning set forth in Section 2.3.2
hereof.
"SIX-MONTH STEAM PROJECTIONS" has the meaning set forth in Section 3.2.3 hereof.
"SPECIFIC CONDITIONS" shall mean any offer made by EDF to sell electricity at a
better price than the then applicable price of Electricity produced by CEVCO
with natural gas.
"SPECIAL PERIOD" has the meaning set forth in Section 15.2.1 hereof.
"SPECIFICATIONS" means those Product and Reprocessed Steam specifications
described in Schedule III hereto.
"STANDARD HP STEAM PRICE" has the meaning set forth in Document III of Schedule
I attached hereto.
"STANDARD LP STEAM PRICE" has the meaning set forth in Document III of Schedule
I attached hereto.
"STEAM" means the amount of LP Steam and HP Steam delivered by CEVCO to either
Site Party, as indicated by the applicable Invoice Meters at the applicable
Points of Interconnection.
"STEAM BUDGET" has the meaning set forth in Section 3.2.2 hereof.
"STEAM SHORTFALL AMOUNT" has the meaning set forth in Section 3.3.3 hereof.
"STEAM TRIAL PERIOD" has the meaning set forth in Section 3.7.1 hereof.
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"TAKE OR PAY AMOUNT" has the meaning set forth in Section 3.4 hereof.
"TECHNICAL DIFFERENCE" has the meaning set forth in Section 14.2.1
hereof.
"TECHNICAL EXPERT" means the Technical Expert appointed in accordance with
Section 14.2 hereof.
"TENTATIVE STEAM BUDGET" has the meaning set forth in Section 3.7.1
hereof.
"TRANSFER" means any sale, assignment, exchange, disposition, transfer
(including, without limitation, a transfer by will or intestate
distribution), gift or attempt to create or grant an encumbrance or
security interest in the stock of CEVCO or this CEVCO Agreement, whether
voluntary, involuntary, by operation of law or otherwise.
"TOLL PRICE" has the meaning set forth in Document III of Schedule I
attached hereto.
"TRANSFORMERS" means the transformers owned by CEVCO and used to transform
HV Electricity For the LM Electricity into LM Electricity.
"UPPER HP STEAM PRICE" has the meaning set forth in Document III of
Schedule I attached hereto.
"UPPER LP STEAM PRICE" has the meaning set forth in Document III of
Schedule I attached hereto.
"VARIABLE HV ELECTRICITY FOR RECTIFIERS" means the quantities of
high-voltage electricity which are to enter the Rectifiers, which
quantities do not constitute Fixed HV Electricity for Rectifiers and which
quantities vary in proportion with the level of production of Electrolysis
Electricity.
"WINTER PERIOD" means November 1 through March 31.
"YEAR" means a twelve (12) Month period.
ARTICLE II
RIGHTS AND OBLIGATIONS REGARDING ELECTRICITY
2.1 PURCHASE AND SUPPLY OF ELECTRICITY
2.1.1 Each of the Site Parties hereby agrees to buy 100% of their present
and future requirements for
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electricity with respect to its present and future businesses and
operations on the Site exclusively from and/or through CEVCO
pursuant to this CEVCO Agreement; provided, that in the event that,
after the date hereof, RPC requires that it be supplied with HV
Electricity for Rectifiers, then the parties shall negotiate, in
good faith, such amendments to this CEVCO Agreement as shall be
necessary to permit such purchases by RPC consistent with the terms
and conditions hereunder.
2.1.2 Subject to the arrangements and limitations set forth in Section 2.2
hereof, CEVCO hereby agrees to sell, or cause to be sold, to the
Site Parties 100% of the LM Electricity and sell, or cause to be
sold, to ChlorAlp 100% of the HV Electricity for Rectifiers, in each
case, either (i) produced by the CEV Facility, up to the Available
Capacity, or (ii) otherwise available under the Electricity Purchase
Agreement, in each case, remaining after (x) satisfying CEVCO's own
requirements for electricity for its operations on the Site and (y)
complying with its obligations under the Electricity Sales
Agreement.
2.2 CURRENT AND FUTURE ARRANGEMENTS WITH EDF
2.2.1 The Site Parties acknowledge that the Existing Electricity Sales
Agreement is to expire September 1, 1997. Pursuant to the Existing
Electricity Sales Agreement, EDF is obliged to purchase all the
electricity produced by the CEV Facility which is not consumed on
the Site (the "Excess Electricity").
2.2.2 RPC hereby covenants to use commercially reasonable efforts to
negotiate and conclude on behalf of CEVCO, but subject to the terms
of Section 2.2.4, arrangements to continue to sell Excess
Electricity to EDF during the Interim Period. During such Interim
Period, CEVCO shall continue to invoice the Site Parties for
Electricity pursuant to the terms hereof. Upon the conclusion and
execution of the Electricity Sales Agreement and the Electricity
Purchase Agreement, the Parties shall negotiate in good faith any
equitable adjustments to the invoices delivered hereunder prior to
such conclusion and execution to take into account any differences
between the price for Electricity hereunder for such period and the
price for the electricity for such period under the Electricity
Sales Agreement
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and the Electricity Purchase Agreement. RPC hereby covenants to use
commercially reasonable efforts to negotiate and conclude, effective
as of the expiration of the Existing Electricity Agreement, on
behalf of CEVCO but subject to the terms of Section 2.2.4, an
agreement with EDF (as the same may be amended, modified or
supplemented from time to time, the "Electricity Sales Agreement"),
substantially in the form of the EDF Preliminary Contract attached
hereto as Schedule II, which Electricity Sales Agreement shall:
(i) have a term of approximately eleven (11) years;
(ii) oblige CEVCO to sell to EDF 100% of the electricity CEVCO
shall produce over the term with all of the New Turbines,
representing an Available Capacity of approximately 78 MW; and
(iii) be effective as of the date on which the Existing Electricity
Sales Agreement expires.
2.2.3 On and after the date, RPC hereby covenants to use commercially
reasonable efforts to negotiate and conclude, in the name of CEVCO
but on behalf of the Parties and the parties listed on Exhibit A,
effective as of the expiration of the Existing Electricity
Agreement, but also subject to the terms of Section 2.2.4, an
agreement with EDF providing for the sale by EDF of Additional
Quantities of Electricity according to the then best competitive
tariff suitable to such Additional Quantities of Electricity (as
such agreement may be amended, modified or supplemented from time to
time, the "Electricity Purchase Agreement"), which agreement shall:
(i) provide for an initial subscription for Additional Quantities
of Electricity to be purchased from EDF varying from 30,000 to
60,000 kW ("Tariff C base TLU" as set forth in Document II of
Schedule I); provided, that the Parties acknowledge that such
initial subscription amount may from time to time require
amendment in accordance with the then applicable Electricity
Budgets of the Site Parties and/or changes in EDF tariffs;
(ii) require EDF to send a single invoice to
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CEVCO for such Additional Quantities Of Electricity;
(iii) in addition to the variable cost of the electricity
purchased under the Electricity Purchase Agreement and
as remuneration for EDF's commitment to provide such
energy to CEVCO upon request, provide for the payment by
CEVCO of fixed subscription payments on the basis of the
maximum electricity purchasable thereunder while
avoiding excessive penalty thereunder;
(iv) to the extent that purchases of electricity from EDF
under the Electricity Purchase Agreement exceed, at any
time, the sales of the electricity to EDF under the
Electricity Sales Agreement, oblige EDF to deliver the
Additional Quantities Of Electricity at one or more
delivery points located at the CEV Facility;
(v) become effective as of the date on which the Electricity
Sales Agreement shall become effective and shall
terminate on the date on which the Electricity Sales
Agreement shall be terminated; and
(vi) subject to the subscription fees payable as detailed in
clause (iii) above, such Electricity Purchase Agreement
shall not be a take-or-pay agreement.
2.2.4 For the purposes of the negotiations of (i) the arrangements
with EDF contemplated by the first sentence of Section 2.2.2;
(ii) the initial Electricity Sales Agreement and (iii) the
initial Electricity Purchase Agreement (the foregoing are
hereby referred to as the "EDF Arrangements"), each of CEVCO
and ChlorAlp hereby grants to RPC full power and authority,
subject to the terms and conditions set forth in this Section
2.2.4, to negotiate the initial terms and conditions of such
agreements. RPC shall (a) keep CEVCO and ChlorAlp fully
informed of the status of such negotiations; (b) consult on a
regular basis with CEVCO and ChlorAlp regarding the terms and
conditions of such negotiations and (c) not conclude or
execute any of the EDF Arrangements with EDF without the prior
written consent of CEVCO and ChlorAlp. Once any of the EDF
Arrangements have been concluded and executed, the authority
of RPC to act on behalf of CEVCO set forth in this Section
2.2.4
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shall automatically terminate. For the avoidance of doubt, it
is understood and agreed that, after the execution by CEVCO
and ChlorAlp of the EDF Arrangements, any and all amendments
thereto and any business discussions with EDF shall be
negotiated by CEVCO exclusively, unless otherwise agreed by
CEVCO. More specifically, in the event there is a need to
modify the Additional Quantities of Electricity, CEVCO shall
negotiate and conclude any appropriate amendment to the
Electricity Purchase Agreement.
2.2.5 CEVCO hereby covenants to: (v) use commercially reasonable
efforts to operate, consistent with Good Engineering and
Operating Practices, the New Turbines in such manner as to
permit CEVCO to earn a positive return on the sale of
electricity to EDF under the Electricity Sales Agreement or
otherwise; (w) use commercially reasonable efforts to operate,
consistent with Good Engineering and Operating Practices, the
Old Turbines, so as to optimize the total costs of the
energies supplied hereunder; (x) sell 100% of the electricity
produced with the New Turbines to EDF under the Electricity
Sales Agreement; and (y) invoice EDF on a regular basis
pursuant to the terms of the Electricity Sales Agreement or
pursuant to the other sales arrangements with EDF comprising
part of the EDF Arrangements.
2.2.6 If (x) within six (6) months after the date of the execution
this CEVCO Agreement, no Electricity Sales Agreement shall be
concluded with EDF or (y) the terms of original Electricity
Sales Agreement and/or the original Electricity Purchase
Agreement concluded with EDF could reasonably be expected to
result in a reduction of line 41 of Document II of Schedule I
by more than twenty percent (20%)(calculated using the numbers
set forth in Document II other than such numbers set forth in
the original Electricity Sales Agreement and the original
Electricity Purchase Agreement relating to the costs of
purchases of electricity and the revenues from sales of
electricity thereunder), the Parties shall, promptly
thereafter, negotiate in good faith and enter into an
amendment to this CEVCO Agreement or replace or amend the
provisions of this CEVCO Agreement which shall no longer be
applicable or which shall require modification but in any
event subject to Section 3.3.2 and Section 3.4.2 hereof. For
the avoidance of doubt, it is understood and agreed that the
general terms and economics of this CEVCO Agreement as so
amended
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shall in any case remain consistent with those contemplated hereby
and with the general intent of the Parties as reflected in this
CEVCO Agreement and more specifically in Schedule I hereof.
2.3 ELECTRICITY BUDGETS; CONFIRMATION OF ORDERS
2.3.1 Attached hereto as Schedule I is the 1997 New Budget for CEVCO,
which includes and reflects Electricity Budgets of the Site Parties
for the calendar year 1997. The 1997 Electricity Budget for each
Site Party is herein referred to as its "Reference Electricity
Budget".
2.3.2 By or before November 30 of each Contract Year (or by such other
date agreed upon by the Parties), each Site Party shall provide to
the other Parties:
(i) an annual budget describing, on a monthly basis and in
reasonable detail, the reasonable good faith estimates of the
requirements of such Site Party for LM Electricity and, for
ChlorAlp only, HV Electricity for Rectifiers for the next
Contract Year (each, an "Electricity Budget"), which budget
shall be in substantially the same form as its Reference
Electricity Budget and shall be prepared in a manner
consistent with the methodology set forth on Schedule I
hereto; and
(ii) a six-month budget describing, on a monthly basis, and in
reasonable detail, its reasonable good faith projection of the
requirements of such Site Party for LM Electricity and, for
ChlorAlp only, HV Electricity for Rectifiers for the six-month
period following such next Contract Year (the "Six-Month
Electricity Projections").
2.3.3 If the requirements of a Site Party for Electricity are to vary
materially from the estimates contemplated for such Month in their
then applicable respective Electricity Budget, then at least fifteen
(15) days prior to the commencement of each Month, each Site Party
shall provide to CEVCO, written but non-binding confirmation of the
requirements of such Site Party for LM Electricity and, for ChlorAlp
only, HV Electricity for Rectifiers for the following Month.
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2.4 PRICE OF ELECTRICITY
2.4.1 Each of the Site Parties shall pay to CEVCO the following prices for
the quantities of LM Electricity and/or HV Electricity for
Rectifiers each of them shall, in any given Month, have consumed
during each Month, as measured by the Invoice Meters of CEVCO or as
otherwise determined pursuant to Section 7.1.2:
(i) Subject to subclauses (ii) and (iii) below, the price for (a)
LM Electricity shall be the LM Electricity Price and (b)
subject to Section 2.4.2 hereof, HV Electricity for Rectifiers
shall be the Electrolysis Electricity Price, in each case, as
determined pursuant to the methodology set forth in Schedule I
hereto, as such price shall vary thereunder from time to time,
including but not limited to, any increases with respect
thereto as a result of consumption by such Site Party in
excess of its Electricity Upper Limit;
(ii) If and to the extent that: (a) any Party (or any affiliate
thereof) receives a good faith, binding written offer from an
independent third party pursuant to which such Party shall be
offered, or an independent third party makes available
generally to such Party and other similarly situated parties,
the right to purchase or sell Electricity and (b) all Parties
hereto agree that the terms and conditions (including, but not
limited to, the price, availability and term) of such offer
are more favorable to the offeree than those available under
this CEVCO Agreement (a "Better Offer"), then notwithstanding
the other provisions of this Section 2.4.1, the price of LM
Electricity and/or HV Electricity for Rectifiers, as
applicable, shall thereafter be the price set forth in the
Better Offer, unless and until such price is thereafter
revised pursuant to this Section 2.4.1(ii).
(iii) The Parties acknowledge that Schedule I hereto currently
provides that: (x) the costs (other than those set forth in
clause (y)) for the distribution of high voltage
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electricity produced by the CEV Facility or otherwise
purchased from EDF are allocated solely to the Electrolysis
Electricity Price; (y) the maintenance costs for the
distribution of such high voltage electricity are allocated
solely to the LM Electricity Price; and (z) such allocations
do not provide for an equitable allocation of each of such
costs between the Site Parties, based on their respective
consumptions of the different types of Electricity. Therefore,
the Parties hereby agree to negotiate in good faith and to
agree on amendments to Schedule I with respect to such
allocations and allocations of other costs that may require
equitable reallocation as a consequence of such amendments as
will, in the reasonable opinion of the Site Parties, equitably
allocate all such costs between the Site Parties on the basis
set forth in clause (z) above. After the agreement of the Site
Parties upon such amendments, CEVCO shall recalculate the
prices of all Electricity sold to the Site Parties hereunder
prior to such amendments and make equitable adjustments in
subsequent invoices to account for any credits or debits to
such Site Parties as the result of the recalculations.
2.4.2 Pursuant to the CEVCO/ChlorAlp Services Agreement, CEVCO has agreed
to provide certain services to ChlorAlp with respect to the
operation and maintenance of the Rectifiers. It is understood and
agreed that the costs for such services as well as the costs of the
HV Electricity for Rectifiers utilized in connection therewith are
included (pursuant to lines 120 through and including line 123 of
Document III of Schedule I hereto) in the price for such electricity
pursuant to Section 2.4.1(i); provided, however, that CEVCO shall
not charge or invoice ChlorAlp for, any of the taxes specified in
line 121 of Document III of Schedule I hereto, which taxes shall be
paid by ChlorAlp directly. If and to the extent that such services
are terminated in accordance with the CEVCO/ChlorAlp Services
Agreement, then the parties shall amend this Agreement to eliminate
the costs of such terminated services from the Electrolysis
Electricity Price.
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ARTICLE III
RIGHTS AND OBLIGATIONS REGARDING STEAM
3.1 PURCHASE AND SUPPLY OF STEAM
3.1.1 Subject to Sections 3.1.2 and 3.1.3 below, each of the Site Parties
hereby agrees to buy 100% of its present and future requirements in
respect of steam with respect to its present and future business and
operations on the Site exclusively from CEVCO pursuant to this CEVCO
Agreement. CEVCO hereby agrees to sell to the Site Parties 100% of
the steam produced by the CEV Facility, up to the Available
Capacity, remaining after satisfying its own requirements for Steam
for CEVCO's operations on the Site.
3.1.2 Notwithstanding the obligations of the Site Parties set forth in
Section 3.1.1 hereof, it is understood and agreed that each Site
Party shall be entitled to be supplied with the Reprocessed Steam
and that its obligations to purchase 100% of its requirements for
steam under Section 3.1.1 shall be construed as being 100% of its
requirements after satisfying that portion of such requirements as
such Site Party is capable of satisfying with Reprocessed Steam to
the extent that, (i) existing unit(s) controlled by such Site Party
on the Site shall not produce in excess of 66,000 metric tons per
Contract Year of Reprocessed Steam from such units above the amount
of Reprocessed Steam set forth in its applicable original Reference
Steam Budget (without regard to any amendments pursuant to Section
3.7); (ii) if future unit(s) controlled by such Site Party on the
Site shall produce additional quantities of Reprocessed Steam, the
then additional quantities of Reprocessed Steam from such unit(s)
per Contract Year minus the total quantities of Steam consumed,
during such Contract Year, by such Site Party from CEVCO in excess
of its original Reference Steam Budget (without regard to any
amendments thereto pursuant to Section 3.7) shall not exceed an
amount equal to 66,000 metric tons; and (iii) the addition of the
quantities of excess Reprocessed Steam referred to in paragraph (i)
and the excess Reprocessed Steam referred to in paragraph (ii) above
shall not, in the aggregate, exceed 66,000 metric tons per Contract
Year; provided, however, that any Site Party may produce and consume
Reprocessed Steam in excess of the foregoing limitations so long as
(x) such
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increased production and consumption does not, directly or
indirectly (including, but not limited to, pursuant to Section 3.7),
decrease such Site Party's consumption of Steam produced by the CEV
Facility over the remainder of the Contract Term; and (y) such Site
Party gives prior written notice of such excess production and
consumption to each of the other Parties hereto.
3.1.3 Notwithstanding the obligations of the Site Parties set forth in
Section 3.1.1 hereof, each Site Party shall be entitled to be
supplied with Internal Steam and that its obligations to purchase
100% of its requirements for Steam under Section 3.1.1 shall be
construed as being 100% of its requirements after satisfying that
portion of such requirements as such Site Party is capable of
satisfying with Internal Steam; provided, that each Site Party
agrees that: (i) it may produce, or cause to be produced, such
Internal Steam solely to the extent it is generated, recaptured or
recovered by existing or future units controlled by it on the Site
whose production of steam is incidental to the production of other
products; (ii) it shall not build, lease or own any future boilers
(gas, electric or otherwise powered) or thermal generation or
cogeneration facilities on the Site for the primary purpose of
increasing production of Internal Steam; (iii) it shall use and
consume any and all Internal Steam only within the "battery limits"
of the unit producing such Internal Steam, unless otherwise
distributed (as Reprocessed Steam) on the steam distribution network
comprising part of the CEV Facility.
3.2 STEAM BUDGETS; CONFIRMATION OF ORDERS
3.2.1 Attached hereto as Schedule I is the 1997 New Budget for CEVCO,
which includes and reflects Steam Budgets of the Site Parties for
the calendar year 1997. The 1997 Steam Budget for each Site Party
is, as such 1997 Steam Budget may be amended pursuant to Section 3.7
hereof, herein referred to as its "Reference Steam Budget".
3.2.2 By or before November 30 of each Contract Year (or by such other
date agreed upon by the parties), each Site Party shall, unless such
Site Party is subject to a Steam Trial Period for such Contract
Year, provide to the other Parties:
(i) an annual budget describing on a monthly
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basis and in reasonable detail, reasonable good faith
estimates of the requirements of such Site Party for LP Steam
and HP Steam for the next Contract Year (each, a "Steam
Budget"), which budget shall be in substantially the same form
as its Reference Steam Budget and shall be prepared in a
manner consistent with the methodology set forth in Schedule I
hereto; and
(ii) a six-month budget describing, on a monthly basis and in
reasonable detail, the reasonable good faith projection of the
requirements of such Site Party for LP Steam and HP Steam for
the six-month period following such next Contract Year (the
"Six-Month Steam Projections").
3.2.3 If and only to the extent that such requirements are to vary
materially from the estimates contemplated for such Month in their
then applicable respective Steam Budget, then at least fifteen (15)
days prior to the commencement of each Month, each Site Party shall
provide to CEVCO, written but non-binding confirmation of the
requirements of such Site Party for LP Steam and HP Steam for the
following Month.
3.3 MINIMUM PURCHASE AND ACCEPTANCE OF STEAM (OBLIGATION TO TAKE)
3.3.1 In order to ensure: (a) that CEVCO can comply with its obligations
to supply EDF with the appropriate quantities of electricity during
Winter Period under the Electricity Sales Agreement without
incurring excessive penalties thereunder and without adversely
affecting the status of the Cogeneration Unit as a Qualifying
Cogeneration Facility and (b) the proper operation of the New
Turbines in accordance with Good Engineering and Operating
Practices, from the date hereof through the expiration or
termination of the Electricity Sales Agreement, each of the Site
Parties shall, at all times during the Winter Period, accept from
CEVCO and consume an amount of Steam at least equal to the lesser
of: (i) 105 metric tons per hour (as such amount may be modified,
revised or amended from time to time pursuant to this Section 3.3 or
otherwise, the "Global Minimum Quantities") minus the amount of
Steam then actually being consumed by the other Site Party and (ii)
for RPC, 51.7 metric tons per
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hour and for ChlorAlp, 53.3 metric tons per hour (as such respective
amounts under this clause (ii) may be modified, revised or amended
from time to time pursuant to this Section 3.3 or otherwise, the
"Individual Minimum Quantities"), so that the Site Parties are,
collectively and at all times, accepting and consuming the Global
Minimum Quantities. If and to the extent that the Site Parties are
not, collectively, accepting and consuming the Global Minimum
Quantities of Steam, then each Site Party shall, notwithstanding
such failure, be obliged to pay the applicable purchase price for
the amount of Steam it is required to purchase under this Section
3.3.1.
3.3.2 By a date no later than three (3) months prior to the commencement
of the notice period with respect to each triennial period under the
Electricity Sales Agreement (i.e., prior to the equivalent notice
period as the one provided by Section 5.4 of the EDF Preliminary
Agreement) during which notice period CEVCO shall be entitled to
notify EDF of any intent to modify the quantities of Electricity
Sold to EDF as of the commencement of the following triennial period
thereunder, each Site Party shall give written notice to the other
Parties of whether or not it is requesting any reduction or revision
in its Individual Minimum Quantities pursuant to Section 3.3.1 above
for the remaining term of this CEVCO Agreement; provided, that (x)
no such written notice may be given by any Site Party prior to the
fifth anniversary of the effective date of the Electricity Sales
Agreement and (y) any failure by any Site Party to give such a
notice shall be deemed to be a confirmation by such Site Party that
its Individual Minimum Quantities shall not be revised or reduced
for the following triennial period under the Electricity Sales
Agreement. Each Site Party hereby covenants that it shall use
commercially reasonable efforts to avoid reducing, and (if
applicable) to minimize any reduction of, its Individual Minimum
Quantities. If and to the extent that one or both Site Parties have,
pursuant to the notices given above, requested revisions of their
Individual Minimum Quantities such that the sum of their respective
Individual Minimum Quantities would, if such revisions were to
become effective, be less than the then applicable Global Minimum
Quantities, then no such revisions shall become effective unless and
until CEVCO shall enter into an amendment to the Electricity Sales
Agreement reducing the
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quantities of Electricity Sold to EDF thereunder so that CEVCO can,
consistent with Good Engineering and Operating Practices, comply
with its obligations to supply EDF with the appropriate quantities
of electricity during Winter Period under the Electricity Sales
Agreement without incurring excessive penalties thereunder and
without losing the status of the Cogeneration Unit as a Qualifying
Cogeneration Facility and so that the New Turbines can continue to
be operated in accordance with all laws, rules, regulations and
Permits. This amendment shall be in form and substance satisfactory
to each Party. CEVCO hereby covenants to use commercially reasonable
efforts to enter into such an amendment to the Electricity Sales
Agreement prior to the expiration of the applicable triennial
period. Upon the effectiveness of each such amendment to the
Electricity Sales Agreement, the Individual Minimum Quantities of
the Site Parties shall thereafter be deemed to be revised in
compliance with the requests of the Site Parties and shall, for all
purposes under this CEVCO Agreement, be the "Individual Minimum
Quantities" of such Site Party, and the Global Minimum Quantities
shall thereafter be deemed to be revised in compliance with such
revised Individual Minimum Quantities and shall, for all purposes
under this CEVCO Agreement, be the "Global Minimum Quantities" of
both Site Parties.
3.3.3 If, at any time during the Winter Period of any Contract Year, RPC
and ChlorAlp are not collectively accepting and consuming the Global
Minimum Quantities of Steam per hour, CEVCO shall (i) determine the
quantities actually accepted and used by each of RPC and ChlorAlp
and compare them with their respective Individual Minimum Quantities
in order to determine which Site Party is consuming less than its
Individual Minimum Quantities and the amount (the "Steam Shortfall
Amount") by which RPC's and/or ChlorAlp's consumption fails to
satisfy its obligations under Section 3.3.1; and (ii) immediately
inform the Site Party or Parties of their failure to comply with
Section 3.3.1. Immediately upon being informed by CEVCO of such Site
Party's failure to accept and consume Steam in compliance with
Section 3.3.1 above, each Site Party shall comply with its
obligations thereunder.
3.4 TAKE OR PAY OBLIGATIONS
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3.4.1 In addition to the obligations under Section 3.3 to accept and
consume Steam thereunder, each Site Party shall, regardless of
whether it accepts and consumes such Steam, be obliged, until the
sixth anniversary of the effective date of the Electricity Sales
Agreement, to pay the applicable purchase price for, at all times
during the Winter Period, an additional number of tons of Steam (as
such amount may be modified, revised or amended from time to time,
the "Take or Pay Amount") equal to (i) such Site Party's Maximum
Take or Pay Threshold (as defined below) minus (ii) the actual
amount of Steam accepted and consumed by such Site Party; provided,
that such Site Party shall be entitled to deduct from the amounts
payable by such Site Party under this Section 3.4.1 to the extent of
the amounts actually paid by such Site Party with respect to such
period pursuant to Section 3.3.1 hereof. "Maximum Take or Pay
Threshold" shall mean: (x) with respect to RPC, 70 metric tons per
hour of Steam and (y) with respect to ChlorAlp, 72.3 metric tons per
hour of Steam, as such amounts may be modified, revised or amended
from time to time.
3.4.2 In the event that the aggregate commitment of CEVCO to supply
Electricity to EDF pursuant to the Electricity Sales Agreement is
modified, revised or amended, the Parties shall negotiate in good
faith to make equitable adjustments in respect of Maximum Take or
Pay Threshold based on the then current actual consumption by each
Site Party.
3.5 RESPONSIBILITIES FOR FIXED STEAM COSTS
Unless such Site Party is then subject to a Steam Trial Period, in
addition to the obligations under Section 3.3 and 3.4, if and to the
extent that, in any given Month and for any reason whatsoever, a Site
Party has accepted and consumed Steam in an amount less than its Global
Lower Limit, then, notwithstanding anything to the contrary set forth
herein, such Site Party shall pay to CEVCO an amount equal to (i) the
Fixed Steam Costs per Ton of Steam multiplied by (ii) the difference
between (x) the amount of Steam equal to such Site Party's Global Lower
Limit minus (y) an amount equal to (I) if such Month commences prior to
the sixth anniversary of the effective date of the Electricity Sales
Agreement and for such Month in question such Site Party is required to
make payments pursuant to Section 3.4 hereof, the Maximum Take or Pay
Threshold; or (II) if such Month commences after the sixth anniversary of
the effective date of the Electricity Sales Agreement and for such Month
in question such Site Party is required to
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make payments pursuant to the last sentence of Section 3.3.1, the amount
of Steam such Site Party was otherwise obliged to accept and consume for
such Month pursuant to such Section 3.3.1; or (III) if, for the Month in
question, such Site Party is not required to make payments pursuant to the
last sentence of Section 3.3.1 or pursuant to Section 3.4 hereof, the
actual amount of Steam accepted and consumed by such Site Party.
3.6 STEAM PAYMENTS
3.6.1 Each of the Site Parties shall pay to CEVCO the following prices for
the quantities of Steam it shall, in any given Month, have consumed
and/or shall be obliged to pay the purchase price under Section
3.3.1 or Section 3.4 above, as measured by the Invoice Meters of
CEVCO, or otherwise determined pursuant to Section 7.1.2:
(i) Subject to clause (ii) below, the price for LP Steam shall be the
Standard LP Steam Price and the price for HP Steam shall be the
Standard HP Steam Price;
(ii) If and to the extent that, in any given Month, any Site Party shall
have consumed quantities of HP Steam or LP Steam in excess of such
Site Party's Global Upper Limit, then the price for HP Steam or LP
Steam in excess of the applicable HP Upper Limit or LP Upper Limit,
as the case may be, shall, subject to the terms, conditions and
limitations set forth in Section 3.6.3, be (x) with respect to LP
Steam, the lower of the Standard LP Steam Price and the LP Upper
Price and (y) with respect to HP Steam, the lower of the Standard HP
Steam Price and the HP Upper Price, as applicable.
3.6.2 The applicable purchase price for purposes of amounts payable
pursuant to Sections 3.3.1 and 3.4 hereof as a result of the failure
of a Site Party to accept and consume the quantities of Steam
required to be accepted and consumed thereunder shall be the
Standard LP Steam Price and/or the Standard HP Steam Price.
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3.6.3 The Parties acknowledge and agree that (x) LP Upper Price and the HP
Upper Price are calculated pursuant to the methodology set forth in
Documents II and III of Schedule I, and (y) such methodology is
intended to provide ChlorAlp with a minimum return or profit of Ten
(10) Francs per metric ton of Steam sold at such prices. ChlorAlp
shall have the right at any time to request that CEVCO verify the
calculations pursuant to such Documents. CEVCO, shall within ten
(10) business days of its receipt of a written request from
ChlorAlp, provide to the Site Parties written calculations, in
reasonable detail, of the then current LP Upper Price and HP Upper
Price, together with of the return or profit, on a Franc per metric
ton basis, that would under Schedule I be allocated to ChlorAlp. If
and to the extent that such calculations demonstrate that ChlorAlp
is not receiving, or would not receive, a minimum return or profit
of Ten (10) Francs per metric ton, on sales of Steam in excess of
the Global Upper Limit or to New Steam Customers the Parties shall
negotiate, in good faith, such amendments to such methodology to
correct such problem.
CEVCO shall have no obligation to sell in excess of an aggregate
300,000 metric tons per year of Steam to the Site Parties and all
New Steam Customers pursuant to Section 8.1.2 hereof, at the LP
Upper Price or HP Upper Price, as applicable. Each Site Party shall
initially be entitled to consume an amount of Steam at the LP or HP
Upper Price, as applicable, equal to the greater of: (i) 150,000
metric tons per year and (ii) the difference between 300,000 metric
tons per year minus the actual consumption of Steam by the other
Site Party in excess of the Global Upper Limit of such other Site
Party (the foregoing amounts are referred to as the "Individual
Extra Steam Cap"). Any sales of Steam by CEVCO in excess of the
foregoing restrictions shall be at a price mutually agreed upon by
the Parties.
3.7 AMENDMENT OF REFERENCE STEAM BUDGETS
3.7.1 If and to the extent that a Site Party wishes to make a long-term
amendment to its Reference Steam Budget, then such Site Party shall,
at the same time it delivers its Steam Budget for the following
Contract Year pursuant to Section 3.2.1, deliver a written notice (a
"Budget Amendment Notice") to the other Parties, which Budget
Amendment Notice shall: (x) make specific reference to this Section
3.7 and explain that such Site Party intends to make a long-
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term amendment to its Steam requirements under its Reference Steam
Budget; (y) set forth, in reasonable detail, the business reasons
for such amendment, which reasons shall not include, directly or
indirectly, the desire of such Site Party to produce or consume
Reprocessed Steam and/or Internal Steam in a manner inconsistent
with Section 3.1.2 and/or 3.1.3 hereof; and (z) attach thereto, such
Site Party's proposed amended Reference Steam Budget (the "Tentative
Steam Budget"). It is understood and agreed that if a Site Party
elects to amend its Reference Steam Budget to increase its Steam
consumption thereunder, either on a Month to Month or an annual
basis, above the HP Upper Limit, the LP Upper Limit and/or Global
Upper Limit, no such amendment shall (I) affect the definition of
the Global Upper Limit, the HP Upper Limit and the LP Upper Limit or
(II) operate to increase the Global Lower Limit, the HP Lower Limit
or the LP Lower Limit above such amounts, as calculated using the
original Reference Steam Budget of such Site Party. The Tentative
Steam Budget attached to such Budget Amendment Notice shall, at all
times during the Steam Trial Period, be deemed to be the Steam
Budget of such Site Party. Promptly upon receipt of a Budget
Amendment Notice, the Parties shall discuss in good faith the
amendments requested by such Site Party and the Site Party
delivering such Budget Amendment Notice shall supply such
information as the other Parties may reasonably request in
connection with evaluating such amendments. The period of time from
the first day of the Contract Year commencing immediately after
delivery of the Budget Amendment Notice and ending on the last day
of the Contract Year during which the Reference Steam Budget of such
Site Party is deemed amended pursuant to Section 3.7.2 is herein
referred to as the "Steam Trial Period". Until the expiration of a
Steam Trial Period, the Reference Budget of a Site Party shall
remain in full force and effect hereunder.
3.7.2 If the Tentative Steam Budget proposes reductions in Steam
consumption from the then applicable Reference Steam Budget, during
the Steam Trial Period, such Site Party shall pay to CEVCO, each
Month, an amount equal to (x) the Fixed Steam Costs per Ton of Steam
multiplied by (y) an amount equal to the difference between its
Global Lower Limit for such Month minus the aggregate amount of
Steam for such Month set forth in the Tentative Steam Budget of such
Site Party delivered during the Steam Trial Period multiplied by
(z): (i) for the first Contract Year
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during such Steam Trial Period, 100%; (ii) for the second Contract
Year during such Steam Trial Period, 67%; and (iii) for the third
Contract Year during such Steam Trial Period, 33%. At the end of
such third Contract Year, no further payments shall be due under
this Section 3.7.2, the applicable Steam Trial Period shall
terminate and the Reference Steam Budget for such Site Party
hereunder shall automatically be deemed to be amended and restated
to the higher of: (i) average Steam consumption by such Site Party
over such three (3) Contract Year comprising the Steam Trial Period,
determined on a Month by Month basis and (ii) the then applicable
Maximum Take or Pay Threshold of such Site Party or, if such
amendment is to be effective after the sixth anniversary of the
execution of the Electricity Sales Agreement, the then applicable
Individual Minimum Quantities of such Site Party. Within 30 days
after the expiration of the applicable Steam Trial Period, CEVCO
shall notify the Site Parties of the new amended Reference Steam
Budget, determined in the foregoing manner.
3.7.3 In addition to the obligations under Section 3.7.2, if and to the
extent that during the Steam Trial Period, in any given Month and
for any reason whatsoever, a Site Party has accepted and consumed
Steam in an amount less than the amount of Steam set forth for such
Month in its Tentative Steam Budget, then, notwithstanding anything
to the contrary set forth herein, such Site Party shall pay to CEVCO
an amount equal to (i) the Fixed Steam Costs per Ton of Steam
multiplied by (ii) the difference between (x) the amount of Steam
set forth for such Month in its Tentative Steam Budget minus (y) an
amount equal to (I) if such Month commences prior to the sixth
anniversary of the effective date of the Electricity Sales Agreement
and for such Month in question such Site Party is required to make
payments pursuant to Section 3.4 hereof, the Maximum Take or Pay
Threshold; or (II) if such Month commences after the sixth
anniversary of the effective date of the Electricity Sales Agreement
and for such Month in question such Site Party is required to make
payments pursuant to the last sentence of Section 3.3.1, the amount
of Steam such Site Party was otherwise obliged to accept and consume
for such Month pursuant to such Section 3.3.1; or (III) if, for the
Month in question, such Site Party is not required to make payments
pursuant to the last sentence of Section 3.3.1 or pursuant to
Section 3.4 hereof, the actual amount of Steam accepted and consumed
by such Site Party.
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ARTICLE IV
RIGHTS AND OBLIGATIONS REGARDING OTHER PRODUCTS
4.1 PURCHASE AND SUPPLY OF DEMINERALIZED WATER AND BOILER FEED WATER
4.1.1 CEVCO hereby agrees to sell to the Site Parties 100% of the
Demineralized Water and Boiler Feed Water produced by the CEV
Facility, up to the Available Capacity in the manner set forth
below.
4.1.2 To the extent any Site Party wishes to purchase Demineralized Water
or Boiler Feed Water during any given Month, then it shall provide
to CEVCO, at least twenty (20) days prior to the commencement of
such Month, a written but non-binding order of its requirements for
Demineralized Water and/or Boiler Feed Water for the following
Month, together with a delivery schedule with respect thereto.
4.1.3 Each of the Site Parties shall pay to CEVCO for the quantities of
Demineralized Water and/or Boiler Feed Water consumed by it during
each Month, as measured by the Invoice Meters (or as determined
pursuant to Section 7.1.2), at the Demineralized Water Price and/or
Boiler Feed Water Price, as applicable, as determined pursuant to
Schedule I hereto.
4.2 PURCHASE AND SUPPLY OF HYDROGEN AND CONDENSATES.
4.2.1 CEVCO hereby agrees to purchase from either or both of the Site
Parties, upon their written request, such amounts of Condensates as
either or both Site Parties wish to sell to CEVCO in the manner set
forth below; provided that, CEVCO shall not be required to purchase
Condensates in excess of its requirements ("Maximum Condensates
Requirements") to produce the Steam required to be produced
hereunder.
4.2.2 In addition, CEVCO hereby agrees to purchase from RPC, upon the
written request of RPC, such amounts of Hydrogen as RPC wishes to
sell to CEVCO in the manner set forth below; provided, that CEVCO
shall not be required to purchase Hydrogen in excess of 8,000 cubic
meters per hour. To the extent that any Site Party wishes to sell to
CEVCO any Condensates or that RPC wishes to sell to CEVCO Hydrogen
during any given Month, then it shall provide to CEVCO, at least
twenty (20) days prior to the commencement of such Month, a written
request with respect to Hydrogen and/or Condensates for the
following Month,
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together with a delivery schedule with respect thereto (the "Monthly
Demand"). In the event that the Site Parties, in their respective
Monthly Demands, request that CEVCO purchase Condensates in excess
of the Maximum Condensates Requirements of CEVCO, then the
Condensates to be purchased by CEVCO shall be pro rated between the
Site Parties, in proportion to the quantities of Steam set forth in
the then effective Steam Budgets of the Site Parties for such month.
4.2.3 CEVCO shall pay to the applicable Site Party the Condensate Price
for the quantities of Condensates and the Hydrogen Price for the
Hydrogen, in each case, it shall have consumed during the preceding
Month, as measured by the Invoice Meters of the supplier of each of
these Products (or as determined pursuant to Section 7.1.2), in each
case, as determined pursuant to Schedule I hereto.
ARTICLE V
[INTENTIONALLY LEFT BLANK]
ARTICLE VI
BILLING AND PAYMENT
6.1 MONTHLY INVOICE
6.1.1 Within the first ten (10) calendar days of each Month, CEVCO shall
submit to the Site Parties, in a separate invoice for each item, the
amounts payable by each Site Party for (i) the quantities of each of
the following Products consumed by such Site Party during the
preceding Month: (a) LM Electricity; (b) Electrolysis Electricity;
(c) HP Steam; (d) LP Steam; (e) Demineralized Water and (f) Boiler
Feed Water, plus (ii) any other amounts due from such Site Party
(including any additional amounts due pursuant to Sections 3.3, 3.4,
3.5, 3.7, 9.11 and 15.4 for the preceding Month).
6.1.2 Within the first ten (10) calendar days of each Month, each Site
Party shall submit to CEVCO, in a separate invoice for each item,
the amounts payable by CEVCO with respect to the quantities of
Condensates and Hydrogen, as applicable, consumed by CEVCO during
the immediately preceding Month.
6.1.3 Each invoice delivered pursuant to this Section 6.1
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shall set forth in reasonable detail the calculation of the amounts
due thereunder and detail any amounts estimated pursuant to Section
7.1.2 (as well as the basis for such estimate).
6.2 PAYMENT
6.2.1 PAYMENT DATES
(a) Each Site Party shall pay to CEVCO, by wire transfer of
immediately available funds, the invoices received by it pursuant to
Section 6.1.1 hereof within ten (10) calendar days following its
receipt of such invoice in its offices or, if earlier, the date on
which payments are due from CEVCO to EDF and GDF (or other gas
supplier).
(b) CEVCO shall pay to each Site Party, by wire transfer of
immediately available funds, the invoices received by it pursuant to
Section 6.1.2 hereof, within ten (10) calendar days of CEVCO's
receipt of payments from each Site Party for such Month pursuant to
Section 6.2.1(a) and from EDF pursuant to the Electricity Sales
Agreement.
6.2.2 PAYMENT DELAYS
If any Party does not make payments within the required payment
dates, commencing on such required payment dates such Party shall
invoice the nonpaying Party for late payment interest on amounts
owed at the Late Payment Rate. The corresponding invoice shall be
payable, on demand, following receipt of such invoice by the Party.
6.2.3 DISPUTES
If any Party objects to any invoice, such Parties shall supply the
billing Party within fifteen (15) calendar days after receipt of the
monthly invoice a detailed report of its objections to which the
billing Party shall respond within the fifteen (15) calendar days
following its receipt. Except as set forth in the following
sentence, the disputed amounts that are not resolved within this
time period shall be resolved according to procedures described in
Article XIV. If and to the extent that any dispute arises in
connection with the amounts invoiced with respect to the amounts
invoiced for Products delivered at unmetered delivery points, as
contemplated pursuant to Section 7.1.2, then, prior to commencement
of the procedures pursuant to Article XIV hereof, the objecting
Party and the billing Party shall, for a period of thirty (30) days,
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cooperate in good faith to attempt to verify the quantity of
Products delivered. Nothing set forth in this Section 6.2.3 shall
suspend or excuse a Party from complying with its payment
obligations under Section 6.2.1 pending the resolution of any
invoice dispute.
6.2.4 TAXES
Each Party shall pay to the appropriate taxing authority any taxes
(including without limitation value added, gross receipts or excise
taxes), duties, fees or charges assessed or levied by any
governmental authority on or against it in connection with its
purchase and/or supply of Products hereunder.
ARTICLE VII
METERING AND TESTING
7.1 METERS
7.1.1 The Parties agree that the costs of installation of the Invoice
Meters required to be installed by CEVCO under the Electricity Sales
Agreement shall be determined by the Board of Directors of CEVCO
pursuant to the CEVCO Stockholders Agreement.
7.1.2 The Parties hereto acknowledge and agree that CEVCO (i) delivers
Electricity, Steam, Demineralized Water and Boiler Feed Water to
each Site Party; (ii) receives Reprocessed Steam from and redelivers
Reprocessed Steam combined with HP Steam to each Site Party; and
(iii) receives Condensates and Hydrogen, in each case, at various
different locations on the Site.
To the extent that Invoice Meters are not currently installed with
respect to delivery points for such Products to the Site Parties at
which CEVCO reasonably expects to deliver any Product in such
quantities such that the aggregate amounts to be paid hereunder for
such Product are at least equal to One Million (1,000,000) Francs
(before taxes) per Contract Year, RPC hereby agrees to cause the
prompt installation, at its sole cost and expense, of such Invoice
Meters as CEVCO may reasonably request and title to such Invoice
Meters shall vest with CEVCO.
With respect to deliveries of Products by any Party to any other
Party at such unmetered delivery points, then until appropriate
Invoice Meters are installed at such delivery points, the Party
selling a Product shall be entitled to xxxx the applicable
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purchasing Party for an amount of such Products the Party selling
such Product reasonably estimates it has delivered to such
purchasing Party at such unmetered delivery points.
With respect to deliveries of Reprocessed Steam with respect to
which the Site Party transporting the same has not installed an
Invoice Meter at or near the Point of Interconnection at which such
Reprocessed Steam enters the steam distribution network constituting
part of the CEV Facility, then until appropriate Invoice Meters are
installed at such delivery points, CEVCO shall be entitled to xxxx
the applicable Site Party delivering such Reprocessed Steam for an
amount of Reprocessed Steam CEVCO reasonably estimates it has
transported from such unmetered delivery points.
7.1.3 Except as set forth in Section 7.1.2 hereof, all metering systems
for all Products and/or Reprocessed Steam delivered by any Party to
any other Party shall be owned by the Party indicated on Schedule IV
hereto as the owner (Proprietaire). The Party indicated on Schedule
IV hereto as being responsible for the maintenance of given metering
systems (Charge de l'entretien) shall maintain such metering systems
in accordance with the procedures and standards to be mutually
agreed upon by the Parties, within 60 days after the date hereof and
in accordance with Good Engineering and Operating Practices. The
Parties understand and agree, notwithstanding the foregoing, that as
set forth on Schedule IV hereto certain metering systems are instead
to be owned and/or maintained by EDF.
7.2 INVOICE METER CALIBRATION AND BALANCING TESTING
Each Party indicated on Schedule IV hereto as being responsible for the
maintenance of the given Invoice Meters (Charge de l'Entretien) shall
maintain such Invoice Meters. Invoice Meters pursuant to Section 7.1 shall
perform calibration and balancing tests to its Invoice Meters, in
accordance with the procedures and standards to be mutually agreed upon by
the Parties within 60 days after the date hereof. Each Party shall notify
the other Parties of each calibration or balancing test date at least two
(2) calendar days prior to such test so that the other Parties may
participate in such tests. If a Party does not attend the test, the Party
proposing such test shall have the right to perform such tests and shall
inform the nonattending Parties of the results. As may be required, any
Party shall have the right by Notice to request additional tests of the
Invoice Meters. Such tests shall be performed within ten
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(10) Business Days following receipt of the Notice containing the
calibration or balancing test request. If any Party requests such test and
such test determines that the meters are within the tolerance margins set
forth below in this Article, the requesting Party shall pay the testing
Party for costs incurred in connection with such tests, if any.
If any such tests determine errors that are greater than 1.5%, the Party
responsible for such Invoice Meter shall be responsible for repairing or
replacing the affected devices within a maximum deadline of 30 calendar
days.
7.3 METER READING
Each Party indicated on Schedule IV hereto as being responsible for the
reading of given Invoice Meters (Charge des Releves) shall read such
Invoice Meters for all Products and for Reprocessed Steam at 8:00 hours of
the first day of each Month for the purposes of invoicing the Parties for
the quantities each of such Parties shall have consumed for the preceding
Month or for the quantities of Reprocessed Steam transported by CEVCO for
the preceding month. The Party reading such Invoice Meters shall
immediately report, in writing, such readings to the Party responsible for
invoicing the same pursuant to Article VI. All Parties to be invoiced
shall have the right to be present at the Invoice Meters readings.
Invoicing shall, except as otherwise provided in Section 7.1.2 hereof, be
based on the reading of the main Invoice Meter for each Product and for
Reprocessed Steam.
ARTICLE VIII
NEW CUSTOMERS
8.1 NEW ELECTRICITY AND STEAM CUSTOMERS
8.1.1 If and to the extent that CEVCO decides, in compliance with the
CEVCO Stockholders Agreement, to make arrangements with respect to
the purchase and sale of Electricity or to sell Steam to any third
party (each, as applicable, a "New Electricity Customer" or a "New
Steam Customer"), it shall use its commercially reasonable efforts
to sell and deliver as much of such Customer's needs in respect of
Electricity and/or Steam as is consistent with compliance by CEVCO
with its obligations hereunder to the Site Parties.
8.1.2 If and to the extent that CEVCO decides, in compliance with the
CEVCO Stockholders Agreement, to sell Steam to any New Steam
Customer which, as of the date of the original execution of this
CEVCO
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Agreement, has operations and business located on the Site, CEVCO
shall, unless the Board of Directors of CEVCO shall otherwise agree
in compliance with the CEVCO Stockholders Agreement, propose to sell
HP Steam and/or LP Steam, as the case may be, to such New Steam
Customer, subject to the terms, conditions and limitations set forth
in Section 3.6.3 hereof, at the HP Upper Price and/or LP Upper
Price, as the case may be, calculated in accordance with Documents
II and III of Schedule I hereto.
8.2 EFFECT OF NEW STEAM CUSTOMERS.
If and to the extent that CEVCO enters into a binding agreement for the
supply of Steam with any New Steam Customer, the parties agree to
negotiate in good faith equitable amendments to (x) the Individual Minimum
Quantities, the Maximum Take or Pay Threshold, the Take or Pay Amount and
(y) the Individual Extra Steam Cap, based on the terms and conditions
(e.g., the level of take and pay and of take or payment obligations) of
such agreement with such New Steam Customers.
ARTICLE IX
ADMINISTRATION OF PURCHASE AND SUPPLY OBLIGATIONS
9.1 GOOD ENGINEERING AND OPERATING PRACTICES; PROTECTION OF FACILITIES
9.1.1 The Site Parties and CEVCO and all their respective employees,
agents, assigns and subcontractors shall act in accordance with Good
Engineering and Operating Practices in carrying out all activities
under this CEVCO Agreement.
9.1.2 Each Party shall be responsible for protecting its own facilities
from possible damage by reason of electrical disturbance or faults
caused by the operation, faulty operation, or non-operation of the
other Party's facilities, and such other Party shall not be liable
for any damage so caused.
9.2 COMPLIANCE WITH LAWS
In carrying out their obligations under this CEVCO Agreement, each Party
hereby covenants that it shall, at all times, comply with all applicable
laws, rules, regulations, orders and other applicable governmental,
municipal, departmental, or national requirements, and such other
requirements by any other governmental authority having jurisdiction.
Except as otherwise specified herein, each
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Party shall be responsible for all of its own costs associated with such
compliance.
9.3 OPERATION AND MAINTENANCE STANDARDS
9.3.1 CEVCO shall operate and maintain the CEV Facility in accordance with
Good Engineering and Operating Practices.
9.3.2 Subject to the provisions of Sections 9.2, 9.3.1 and 9.5 (and the
other provisions of this Article IX), in the event that EDF is
unable to deliver Electricity to the Parties, then, assuming the
Site Parties shall then consume sufficient quantities of Steam,
CEVCO shall use commercially reasonable efforts to continue the
delivery of Electricity to the Site Parties without any material
interruption in such delivery by keeping such number of Old Turbines
and New Turbines operational at all times and in such a way as to
continue to comply with its obligations under the Electricity Sales
Agreement.
9.4 DELIVERY STANDARDS; TITLE AND RISK OF LOSS
9.4.1 Each Party agrees that the Products to be delivered by it to any
other Party hereunder generated by it and delivered at the Points of
Interconnection shall, at such Points of Interconnection, comply
with the applicable Specifications. Each Site Party agrees that the
Reprocessed Steam delivered by it to CEVCO at the Points of
Interconnection shall, at such Points of Interconnection, comply
with the applicable Specifications, and (assuming the compliance by
the Site Parties with the foregoing) CEVCO agrees that the
Reprocessed Steam delivered by it (which shall be combined with HP
Steam as contemplated by Section 9.11.3) to the Site Parties at the
Points of Interconnection shall, at such Points of Interconnections,
comply with the applicable Specifications.
9.4.2 Title to Products and risk of loss with respect thereto, shall pass
from the seller thereof to the purchaser upon delivery of such
Products at the applicable Points of Interconnection.
Notwithstanding the foregoing provisions, CEVCO shall, as
contemplated by Section 2.5.2, continue to be liable for its
obligations with respect to the Rectifiers and Electrolysis
Electricity to the extent set forth in the CEVCO/ChlorAlp Services
Agreement.
9.4.3 Risk of loss with respect to Reprocessed Steam shall
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pass from a Site Party to CEVCO or from CEVCO to a Site Party, as
applicable, at the applicable Point of Interconnection. The Parties
hereby acknowledge that CEVCO is obliged only to transport and
distribute Reprocessed Steam in accordance with the terms of this
CEVCO Agreement. Therefore, no sale of any Reprocessed Steam shall
be deemed to have occurred as a result of any such transportation
and/or distribution.
9.4.4 If and to the extent that any Party wishes to (x) change any Points
on Interconnection between its Interconnection Facilities and those
of CEVCO or (y) add additional Points of Interconnection and
Interconnection Facilities between its facilities on the Site and
the CEV Facility, the Parties hereto shall negotiate, in good faith,
the terms (including, but not limited to, the costs incurred in
connection therewith) under which such will be permitted, consistent
with Good Engineering and Operating Practices and the terms and
conditions contained herein. Upon reaching agreement on such
matters, the Parties shall enter into an amendment hereto (including
applicable amendments to Schedule V) to reflect such agreement.
9.5 SCHEDULE OF OUTAGES; COORDINATION OF SITE ACTIVITIES
9.5.1 Prior to November 30 of each Contract Year, CEVCO shall submit to
the Site Parties for their review and approval, a tentative schedule
of expected maintenance outage periods for the CEV Facility during
the next twenty-four (24) Month period commencing on January 1 of
that following Contract Year; provided, that no Major Outages shall,
absent any emergency, be scheduled for the New Turbines during the
Winter Period. The Site Parties shall have 30 calendar days to
review and comment on such schedule. CEVCO shall consider such
comments and shall discuss any possible conflicts with the Parties
arising out of such comments. Absent any conflict with respect
thereof (which conflict shall, notwithstanding Article XIV, be
resolved as a Non-Optimal Situation pursuant to the CEVCO
Stockholders Agreement), CEVCO shall present to the Site Parties,
prior to November 30, a binding schedule for the following twelve
(12) months. This schedule will be applicable from January 1 of the
relevant Contract Year. CEVCO shall have the obligation to comply
with such twelve (12) Month schedule.
9.5.2 As the twelve (12) Month outage schedule prepared pursuant to
Section 9.5.1 shall be based on the
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obligations of CEVCO under the Existing Electricity Agreement and
under the Electricity Sales Agreement and on the Electricity and
Steam Budgets of the Site Parties, the Site Parties acknowledge and
agree that a significant variation in dispatch by EDF or the Site
Parties may lead to a modification of the maintenance outage dates
for all or a part of the CEV Facility. Accordingly, such
modification shall be reviewed by CEVCO to verify whether additional
costs would be incurred by CEVCO, and if additional costs would
result, then the Parties shall negotiate an equitable manner for
allocating for all such costs attributable to any modifications
among the various Products supplied hereunder.
9.5.3 The Parties shall cooperate with each other to facilitate the
coordinated operation of the CEV Facility, the Interconnection
Facilities and their respective operations on the Site. To this end,
the Parties shall maintain open communications to share information
insofar as necessary for the Parties to perform under this
Agreement, in order to coordinate generation and consumption of
Produces and scheduling of outages and maintenance of the CEV
Facility and their other respective operations on the Site.
9.6 PRODUCT EXPORT
9.6.1 LM Electricity requested by the Site Parties and HV Electricity for
Rectifiers requested by ChlorAlp shall be taken, received and
transported from the applicable Point of Interconnection by such
Site Party, at their own risk and cost, through transmission lines
capable of conducting, in compliance with Good Engineering and
Operating Practices, the type and quantity of Electricity (LM
Electricity or HV Electricity for Rectifiers) then being taken,
received and transported.
9.6.2 Steam requested by the Site Parties and Reprocessed Steam received,
distributed and transported by CEVCO shall, in each case, be
delivered to or taken, received and transported from, as applicable,
the applicable Point of Interconnection by the applicable Party, at
its own risk and cost, through pipes capable of delivering or
capable of taking, conducting and transporting, in compliance with
Good Engineering and Operating Practices, taking into account the
type (LP Steam or HP Steam) and quantity of Steam then being
delivered of then being taken, received and transported.
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9.6.3 All other Products requested by any Party shall be taken, received
and transported by such Party from the applicable Point of
Interconnection by such Party, at its own risk and cost, through
pipes capable of taking, conducting and transporting, in compliance
with Good Engineering and Operating Practices, the type and quantity
of Product then being taken, received and transported.
9.7 GOVERNMENT PERMITS AND LICENSES
Except as may otherwise be provided in the RPC/CEVCO Services Agreement,
CEVCO will be responsible for requesting, obtaining and maintaining the
validity of all Permits and licenses that are necessary to operate and
maintain the CEV Facility after the date hereof. The Site Parties shall
use their commercially reasonable efforts to assist CEVCO in obtaining all
applicable Permits, required for the operation of the CEV Facility, in
addition to the Permits for which CEVCO is responsible above.
9.8 INTERCONNECTION FACILITIES
9.8.1 Each Site Party shall have responsibility for the maintenance and
operation of the Interconnection Facilities from its facilities on
the Site to, but not including, the Points of Interconnection and
all costs related thereto. Each Site Party shall also obtain and
maintain any Permits necessary for the maintenance and operation of
such Interconnection Facilities. Each Site Party shall hold title
and shall bear the risk of loss or damage to such Interconnection
Facilities. Notwithstanding the foregoing provisions, CEVCO shall,
as contemplated by Section 2.5.2, continue to be liable for its
obligations with respect to the Rectifiers and the production of
Electrolysis Electricity to the extent set forth in the
CEVCO/ChlorAlp Services Agreement.
9.8.2 CEVCO shall have responsibility for maintenance and operation of the
Interconnection Facilities from the CEV Facility to and including
Points of Interconnection and all costs related thereto. CEVCO shall
also obtain and maintain any Permits necessary for maintenance and
operation of such Interconnection Facilities. CEVCO shall hold title
and shall bear the risk of loss or damage to such Interconnection
Facilities.
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9.9 INSURANCE
CEVCO shall, at its own expense, maintain in force, throughout the term
of this CEVCO Agreement, all insurance as required under the CEVCO
Stockholders Agreement.
9.10 STEAM OR ELECTRICITY SHORTFALL
9.10.1 Subject to Section 9.10.3 hereof, if for any reason, EDF is not
delivering and the CEV Facility is unable to produce,
collectively, quantities of Electricity necessary for CEVCO to
comply with its obligations under Article II hereof, then CEVCO
shall allocate the Electricity then being produced by the CEV
Facility pro rata between the Site Parties, in proportion to the
quantities of the LM Electricity and HV Electricity for Rectifiers
set forth in their respective then applicable Electricity Budgets
for such Month.
9.10.2 Subject to Section 9.10.3 hereof, if for any reason, the CEV
Facility is unable to produce quantities of Steam necessary for
CEVCO to comply with its obligations under Article III hereof,
then CEVCO shall allocate the Steam then being produced by the CEV
Facility pro rata between the Site Parties, in proportion to the
quantities of Steam set forth in their respective then applicable
Steam Budgets.
9.10.3 Notwithstanding the foregoing provisions of this Section 9.10,
CEVCO shall not be excused from any breach of its obligations
under Articles II or III hereof except in accordance with Article
XV hereof.
9.11 TRANSPORT OF REPROCESSED STEAM
9.11.1 CEVCO hereby agrees to transport and distribute, at any time,
through the steam pipelines comprising part of the CEV Facility,
up to the limits set forth in Section 3.1.2, Reprocessed Steam
from each Site Party; provided, however, that to the extent that
CEVCO is obliged to transport or distribute Steam produced or
generated by the CEV Facility to the Site Parties or other persons
in such quantities such that, taken together with the quantities
of Reprocessed Steam the Site Parties are then proposing that
CEVCO transport and distribute, the total Steam to be transported
and distributed would (in accordance with Good Engineering and
Operating Practices) exceed the reasonable capacity of the steam
pipelines of the CEV Facility, then CEVCO shall be obliged to
transport and deliver that
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amount of Reprocessed Steam which, together with all such Steam
produced or generated by the CEV Facility which CEVCO is so
obliged to transport or distribute as contemplated above, would
not (in accordance with Good Engineering and Operating Practices)
exceed such reasonable capacity of such steam pipelines.
9.11.2 Each Site Party shall pay to CEVCO, for each metric ton per hour
of Reprocessed Steam transported or distributed pursuant to
Section 9.11.1 hereof (as (x) measured by Invoice Meters installed
by the Site Party transporting such Reprocessed Steam, which
Invoice Meters shall be read by the Party indicated on Schedule IV
as being responsible for the reading of such Invoice Meters
(Charge des Releves), or (y) estimated by CEVCO pursuant to
Section 7.1.2), the Toll Price.
9.11.3 The Site Parties acknowledge and agree that such Reprocessed Steam
will be combined with the HP Steam already in the steam pipelines
comprising part of the CEV Facility; provided that CEVCO shall
redeliver to a Site Party, at the applicable Points of
Interconnection, the same quantity of steam conforming to the
Specifications for Reprocessed Steam as that initially delivered
by such Site Party to CEVCO.
ARTICLE X
INDEMNIFICATION
10.1 INDEMNIFICATION
10.1.1 Each Party shall indemnify, defend, and hold the other Parties
harmless from any Losses arising as a result of the failure by
such Party to comply with its obligations under this CEVCO
Agreement.
10.1.2 If the event arises as a result of a joint failure of the Parties
or from a failure to act carefully and diligently by such Parties,
each one of the Parties shall be liable under the terms of this
Article in proportion to the degree of liability that may be
attributed to such Party.
10.2 NOTICE AND PROCEDURE
10.2.1 In the event of any claim or in the exercise of the right of
indemnity governed by this Article, a Party exercising such right,
which Party shall be known as the "Claimant," shall notify the
other Party liable pursuant to Section 10.1. hereto, which Party
shall
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be known as the "Indemnifying Party," in writing in a document
containing a description, in reasonable detail, of the claim, the
amount of the claim and the relevant evidence. The failure to give
Notice shall not be considered a waiver of the Claimant's rights,
unless and only to the extent that such omission results in
damages to the Indemnifying Party in the defense of its rights.
10.2.2 Once the Indemnifying Party has received the Notice, it shall
respond directly to the corresponding claim or action and assume
all Losses that may be incurred by the Claimant. In the event the
Indemnifying Party does not do so and the Claimant must then
assume its defense, the costs incurred by the Claimant, as well as
the amount of any judgment or settlement, shall be paid by the
Indemnifying Party.
10.2.3 If the Indemnifying Party does not assume with diligence its
obligation to defend the Claimant, the Claimant shall appoint, at
the Indemnifying Party's cost, an attorney to represent it in
connection with the corresponding proceeding or claim, which
appointment shall no affect any of the obligations of the
Indemnifying Party. The Indemnifying Party shall cooperate with
the Claimant's attorney for success of the proceeding. The Parties
in good faith, shall seek solutions to situations arising under
this Article, but neither Party shall have the right to reach any
agreement or settlement without the prior consent of the
Indemnifying Party.
ARTICLE XI
LIMITATION OF LIABILITY
The Parties shall be liable only for direct damages derived from any
performance or nonperformance of their obligations of this CEVCO
Agreement. Consequently, neither Party shall claim from the other any
indirect damage such as consequential, incidental or punitive damages.
ARTICLE XII
CONTRACT TERM
12.1 CONTRACT TERM.
The term of this CEVCO Agreement (the "Contract Term") shall commence on
the date of the initial execution and delivery hereof and shall expire on
the date of expiration or termination of the Electricity Sales Agreement,
unless earlier terminated pursuant to the provisions hereof.
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12.2 REPLACEMENT CEVCO AGREEMENT.
Each of the Parties hereby covenants to commence, no later than nine (9)
months prior to the expiration of the Contract Term, negotiations with
each other Party with respect to a new supply and purchase agreement
among the Parties replacing this Agreement (a "Replacement Agreement")
and to negotiate in good faith for a period of at least eighteen (18)
months after commencement of negotiations, to conclude a Replacement
Agreement providing for the general terms and economics similar those
provided herein (including Schedule I) but taking into account, in an
equitable manner, any changes in laws, rules or regulations, general or
specific market conditions (including any new terms offered by EDF or any
other relevant electricity supplier or purchaser of electricity) and
other similar factors.
ARTICLE XIII
EVENTS OF DEFAULT; REMEDIES
13.1 TERMINATION BY THE SITE PARTIES
Upon the occurrence of any of the Events of Default set forth in this
Section 13.1 occurs, any Site Party may, at its own election, but subject
to Section 13.8, terminate this CEVCO Agreement with respect to itself
only, unless such event occurs as a result of any of the Relief Events
set forth in Article XV or as a result of a prior failure by such Site
Party to perform any of its obligations pursuant to this CEVCO Agreement:
13.1.1 If CEVCO refuses to deliver Electricity or Steam to such Site
Party when it has the capability to deliver such Product to such
Site Party as required by this CEVCO Agreement, for a period of
thirty (30) or more calendar days after receipt of Notice from a
Site Party of such failure. For purposes of this Section
"capability to deliver Electricity or Steam" means that the CEV
Facility could be operated safely and in accordance with all laws,
regulations and Permits applicable at that time and Good
Engineering and Operating Practices;
13.1.2 CEVCO fails to maintain or repair the CEV Facility in accordance
with this CEVCO Agreement; provided that (i) such failure has had,
or is reasonably likely to have, a material adverse effect on the
business or operations on the Site of a Site Party; and (ii) CEVCO
fails to commence, within thirty (30) calendar days after receipt
of Notice from such Site Party as to the nature of the default and
the
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adverse effect, to take the corrective measures necessary to cure
such event and thereafter fails to diligently continue to apply
such solutions until the problem has been resolved;
13.1.3 CEVCO fails to perform, observe or comply with any of the other
covenants, agreements, conditions or provisions in this Agreement;
provided, that (i) such failure has had, or is reasonably likely
to have, a material adverse effect on the business or operations
on the Site of a Site Party; and (ii) such failure continues for a
period of 30 days after receipt of a Notice from any Site Party of
such nonperformance and such adverse effect and requesting that it
be corrected; provided, however, if prior to the expiration of
such 30-day period CEVCO institutes action reasonably designed to
cure such failure, no "Event of Default" shall be deemed to have
occurred upon the expiration of such 30-day period for so long as
CEVCO pursues such curative action with reasonable diligence and
provided that such curative action can be completed within a
reasonable time.
13.1.4 A Bankruptcy Event shall have occurred with respect to CEVCO.
13.2 TERMINATION BY CEVCO
Upon the occurrence of any of the Events of Default set forth in this
Section 13.2, CEVCO may, at its own election, but subject to Section
13.8, terminate this CEVCO Agreement with respect to such defaulting Site
Party, unless such event occurs as a result of any of the Relief Events
contemplated in Article XV or as a result of a previous failure by CEVCO
to perform any of its obligations under this CEVCO Agreement:
13.2.1 Any Site Party fails to make timely payment of any amounts payable
hereunder in respect of any Product delivered by CEVCO to such
Site Party in an amount in excess of One Million (1,000,000)
Francs provided such failure continues for a period of at least
thirty (30) business days;
13.2.2 Either Site Party fails to perform, observe or comply with any of
the other covenants, agreements, conditions or provisions in this
Agreement; provided, that (i) such failure has had, or is
reasonably likely to have, a material adverse effect on the
business or operations of CEVCO and (ii) such failure continues
thereof for a period of 30 days after receipt of a Notice from the
other party of
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such nonperformance and such adverse effect and requesting that it
be corrected; provided, however, if prior to the expiration of
such 30-day period the nonperforming Site Party institutes action
reasonably designed to cure such failure, no "Event of Default"
shall be deemed to have occurred upon the expiration of such
30-day period for so long as the nonperforming Site Party pursues
such curative action with reasonable diligence and provided that
such curative action can be completed within a reasonable time.
13.2.3 A Bankruptcy Event shall have occurred with respect to any Site
Party.
13.3 SUSPENSION OF SERVICE AND SET-OFF
Notwithstanding anything in this CEVCO Agreement to the contrary, if any
Site Party fails to fulfill any of its payment obligations referred to in this
CEVCO Agreement, CEVCO shall have the right (i) to suspend, within the limits of
the law in force at the time the event occurs, the delivery by CEVCO of
Electricity, Steam and other Products to such defaulting Site Party during any
such suspension period the CEV Facility shall be considered fully available to
generate Electricity and Steam and (ii) to withhold from any of the amounts due
and payable by CEVCO under this CEVCO Agreement to such defaulting Site Party
hereunder any and all amounts due and payable under this CEVCO Agreement to
CEVCO by such defaulting Site Party and to offset such withheld amounts against
the amount so due and payable by CEVCO, and CEVCO shall not be liable for any
amounts so setoff.
13.4 RIGHTS AND OBLIGATIONS OF THE PARTIES
Except as expressly provided in this Agreement and notwithstanding
anything else herein to the contrary herein, unless and until this
Agreement has been terminated pursuant to Section 13.1 or 13.2 hereof, no
Site Party shall have any right to refuse to accept or to suspend or
delay any acceptance of Electricity or Steam as required under this
Agreement as a result of any breach or alleged breach by CEVCO nor shall
any Site Party refuse to take or use productively its those steam
quantities as required under Section 3.3 hereof or refuse to make,
suspend or delay any of the payments required under this Agreement as a
result of any breach or alleged breach by; provided, however, that such
Steam meets the Specifications.
13.5 WAIVER OF BREACH
Any Party may waive a breach by any other Party, provided that no waiver
by or on behalf either of any Party of any breach of any of the
covenants, provisions, conditions,
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restrictions or stipulations contained in this Agreement shall take
effect or be binding on such Party unless the waiver is reduced to
writing and executed by such Party, and any such waiver shall be deemed
to extend only to the particular breach waived and shall not limit or
otherwise affect any rights that such Party may have with respect to any
other or future breach.
13.6 PROCEDURE AND AGREEMENT TERMINATION DATE
In the event any Party becomes entitled to terminate this CEVCO Agreement
as set forth in the preceding Sections, such Party shall give Notice to
the other Party and the "Agreement Termination Date" shall be effective
on the tenth (10th) calendar day following the presentation of the
Notice.
13.7 OBLIGATIONS FOLLOWING THE TERMINATION
Upon the termination of this CEVCO Agreement, each Party, without regard
to the Party that declared the early termination, shall be and remain
liable for all liabilities and obligations accrued or arising prior to
the date of termination.
13.8 EARLY TERMINATION NOT TO OCCUR
This CEVCO Agreement may not be terminated by any Party after an Event of
Default if (x) the Party with the option to terminate did not exercise
such option and the defaulting Party completely remedied such situation
or (y) the Notice is given by a Party pursuant to Section 13.1 or 13.2
specifies that the breach of this CEVCO Agreement by another Party is
reasonably likely to have an adverse effect on the business or operations
of the notifying Party, then the notifying Party may not terminate this
Agreement until the occurrence of such a material effect or until such
occurrence is imminent.
13.9 REMEDIES NON-EXCLUSIVE
The rights of the Parties to terminate this CEVCO Agreement pursuant to
Sections 13.1 or 13.2, as applicable, are in addition to all other
remedies which a Party may have under French law (whether to xxx for
damages for breach of this CEVCO Agreement, to request a court to order
that a Party perform its obligations or otherwise) but in each case
subject to Article XI hereof.
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ARTICLE XIV
DIFFERENCE RESOLUTION
14.1 OFFICER CONSULTATIONS
In the event of a disagreement or controversy concerning this CEVCO
Agreement or concerning the rights and liabilities of the Parties to this
CEVCO Agreement (any such disagreement or controversy, a "Difference"),
before any such Difference under this CEVCO Agreement is subjected to
arbitration, a legal representative of each Party, both having full
authority to settle the Difference, shall meet and attempt in good faith
to resolve the Difference. Such process shall last no longer than sixty
(60) calendar days.
14.2 TECHNICAL DIFFERENCES
14.2.1 In the event that (x) a Difference between the Parties cannot be
resolved pursuant to Section 14.1 and (y) such difference is of a
technical nature (a "Technical Difference"), the Parties will
appoint a Technical Expert to resolve the Technical Difference
within fifteen (15) days following the expiration of the sixty-day
period set forth in Section 14.1.
14.2.2 If the Parties are unable to agree to the appointment of the
Technical Expert within such 15 day period, then each Party shall
appoint an expert within 15 days, and such experts shall choose
the Technical Expert jointly within 15 days following their own
appointment. Once the Technical Expert is appointed:
(1) The Technical Expert thus appointed, shall render his
opinion, properly justified, within sixty (60) calendar
days after the date of his appointment. The Technical
Expert shall also establish the place and the time for
receiving representations and information from the Parties,
as well as to conduct the required hearings. Upon request
by the Technical Expert, the Parties may grant an extension
of the above sixty (60) day period;
(2) The Parties undertake to provide the Technical Expert with
all evidence and information within their respective
possession or control as the Technical Expert may consider
necessary for determining the Technical Controversy or that
may be relevant to or related to the matter to be
determined, which the Parties shall mutually and promptly
disclose;
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(3) The Technical Expert may appoint consultants and advisors
as the Technical Expert determines appropriate in issuing
his opinion. The Parties shall cooperate and seek to narrow
and limit the issues to be determined;
(4) If within sixty (60) calendar days after his appointment
the Technical Expert shall not have rendered his opinion,
at the request of either Party, a new Technical Expert may
be appointed in the same manner as the one described above
and the appointment of the existing Technical Expert shall
cease for the purpose of determining the Technical
Difference, provided, that if the existing Technical Expert
renders his fully reasoned opinion prior to the appointment
of a new Technical Expert, such opinion shall have effect
and the proposed appointment of the new Technical Expert
shall have no effect;
(5) The opinion of the Technical Expert shall be final and
binding upon the Parties, except in the event of fraud or
substantial error; and
(6) Each Party shall bear the costs and expenses of all
lawyers, consultants, advisers, witnesses, and employees
retained by it in any Technical Difference referred to a
Technical Expert, and the costs and expenses of the
Technical Expert shall be shared equally by the Parties.
14.3 ARBITRATION
If a Difference is not resolved by direct negotiation within the sixty
(60) calendar days contemplated in Section 14.1 and it is not required or
permitted pursuant to the terms of this CEVCO Agreement to use a
Technical Expert, then the Difference shall be finally settled under the
Rules of Conciliation and Arbitration of the International Chamber of
Commerce by three arbitrators appointed in accordance with the said
Rules. The claimant or claimants (collectively) shall nominate one party
arbitrator and the defendant or defendants (collectively) likewise shall
nominate one party arbitrator. The arbitrators shall be fluent in French
and in English. The arbitration proceedings shall take place in Paris and
shall be conducted in French and/or English, each party being free to
determine the language it will use
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during the proceedings (i.e. hearings, briefs, oral and written
communications, etc. shall be fully accepted in the French language or in
the English language without translation from French to English nor from
English to French). More specifically, documentary exhibits in the French
language will be admissible without an English translation thereof and
documentary exhibits in the English language will be admissible without a
French translation thereof, provided that when used in this Agreement,
the French language shall prevail.
ARTICLE XV
RELIEF EVENTS
FORCE MAJEURE
15.1 DEFINITION
A "Relief Event" means any event or circumstance or combination of events
or circumstances: (i) beyond the reasonable control of the Party
asserting the occurrence of a Relief Event; (ii) that substantially and
adversely affects the performance of obligations of such Party under this
CEVCO Agreement; and (iii) that such Party could not have reasonably
foreseen and taken reasonable preventive measures to lessen or eliminate
such substantial and adverse effects. Relief Events shall include, but
not be limited to, the following events and circumstances to the extent
that each complies with the above requirements:
(1) political events that occur inside or directly involve France,
including, among others:
(i) any act of war, whether declared or undeclared, invasion,
armed conflict or act of a foreign enemy, blockade, or
embargo;
(ii) revolution, riot, insurrection, act of terrorism, or
sabotage;
(iii) strikes or labor stoppages, at a national or regional
level;
(iv) the impossibility for CEVCO to operate the CEV Facility due
to the impossibility of obtaining or renewing the required
Permits, provided, such Permits were requested in an
appropriate and timely manner and all commercially
reasonable efforts were used to obtain such Permits;
(v) the impossibility for any Party to produce, or any Party to
accept, Products from another
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as a consequence of changes in laws, rules or regulations
after the date of the original execution of this CEVCO
Agreement;
(2) natural events such as lightning, fire, earthquake, flood, storm,
cyclone, typhoon or tornado;
(3) acts of third parties beyond the control of the Parties;
(4) with respect to the obligations of CEVCO to supply Products under
this CEVCO Agreement due to (a) the failure of GDF to supply gas
and of other fuel suppliers to supply fuel for any reason,
including another Relief Event, after CEVCO shall have exhausted
all reserve supplies of fuel, or (b) the failure by any Site Party
to perform its obligations hereunder.
(5) any equipment failure exceeding one (1) week in duration;
provided, that for the avoidance of doubt, it is understood and
agreed that to the extent such proper maintenance or servicing
were not conducted with respect to such equipment, such failure or
defect may not necessarily constitute a Relief Event pursuant to
clause (iii) of the definition of "Relief Event".
(6) events or circumstances constituting "Force Majeure" as defined by
French law.
15.2 NOTIFICATION OF THE OCCURRENCE OF A RELIEF EVENT
15.2.1 As promptly as reasonably practicable, but in no event later than
forty-eight (48) hours after the occurrence of a Relief Event, the
Party affected in compliance with its obligation shall provide the
other Party notice about the occurrence of the Relief Event, the
obligations affected, including data and other pertinent details
and to the extent practicable, a preliminary estimate of the time
during which the Party will be affected. If (x) the Notification
required pursuant to the preceding sentence is given within such
48-hour period, then as from the occurrence of such Relief Event
or (y) such Notification is not given with such 48-hour period,
then as from the date of such Notification given pursuant to this
Article, the duration of a Party's inability to perform its
obligations under this CEVCO Agreement shall be deemed a "Special
Period".
15.2.2 Within the two (2) business days after the cessation of the Relief
Event, the affected Party shall also provide notice of (i) the
cessation
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of the Relief Event, and (ii) its ability to recommence
performance of its contractual obligations.
15.2.3 During the Special Period, subject to the other provisions of this
Article XV the affected Party shall be excused from the compliance
of its contractual obligations during the Special Period to the
extent set forth in Section 15.3.
15.2.4 During the Special Period, the affected Party shall periodically
provide information regarding the occurrence of the Relief Event,
the measures taken to reduce the effect of the Relief Events and
to overcome the Relief Event. At the request of either Party, the
Parties shall meet and in good faith shall search for solutions
leading towards resumption of performance by the affected Party as
promptly as is possible.
15.3 EXCUSE FROM COMPLIANCE WITH OBLIGATIONS
Subject to its continuing obligations under Section 15.4 and to the
compliance with obligations set forth in Section 15.2, during a Special
Period, the affected Party shall be excused from complying with its
contractual obligations to the extent that the failure is caused solely
by a Relief Event. In such event, the other Party shall not bear any
liability for any Losses or expenses suffered by the affected Party as a
result of a Relief Event.
15.4 PAYMENTS BY THE SITE PARTIES DURING RELIEF EVENTS
During the continuance of a Special Period for any Site Party subject to
a Relief Event, such Site Party shall, notwithstanding the foregoing
provisions of this Article XV, shall continue to be obliged as follows:
(1) If (x) the Relief Event then affecting such Site Party also
affects CEVCO and (y) pursuant to the Electricity Sales Agreement,
CEVCO is relieved from its obligations to deliver Electricity
thereunder as a result of such Relief Event, such Site Party shall
be obliged to comply with its obligations under Section 3.3 hereof
to the extent necessary to permit CEVCO to make payments when due
under the lease with respect to the New Turbines; provided,
however, that if both Site Parties are then subject to a Special
Period for such a Relief Event, then each such Site Party shall
comply with this sentence pro rata, in accordance with the Stock
(as defined in the CEVCO Stockholders Agreement) then held by it.
If CEVCO is not relieved from its obligations to deliver
Electricity under the Electricity Sales
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Agreement as a result of such Relief Event, such Site Parties
shall be obliged to comply fully with its obligations under
Section 3.3 hereof; and
(2) such Site Party shall be obliged to make the payments required to
pay to CEVCO an amount equal to (i) the Fixed Steam Costs per Ton
of Steam multiplied by (ii) the difference between (x) the amount
of Steam equal to such Site Party's Global Lower Limit for such
Month minus (y) an amount equal to (I) unless clause (II) is then
applicable, the amount of Steam such Site Party was otherwise
obliged to accept and consume for such Month pursuant to such
Section 3.3.1; or (II) if, for the Month in question, such Site
Party is not required to make payments pursuant to the last
sentence of Section 3.3.1, the actual amount of Steam accepted and
consumed by such Site Party; provided, however, that if a Steam
Trial Period shall then be in effect, then in lieu of the
foregoing payments under this Section 15.4(2), such Site Party
shall continue to make the payments required under Section 3.7
hereof.
ARTICLE XVI
NOTICES
16.1 NOTICE
Except as otherwise provided in this CEVCO Agreement, any Notice, demand
or request required or authorized by this CEVCO Agreement to be given in
writing shall be considered a "Notice" and deemed to have been duly given
in the manner set forth in Section 6.1 of the CEVCO Stockholders
Agreement.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 ENTIRE AGREEMENT
This CEVCO Agreement including all Annexes constitutes the entire
understanding among and between the Parties with regard to the subject
matter of this CEVCO Agreement and is the intention of the Parties and
supersedes any and all previous written and oral understandings executed
by the Parties, and binds the Parties, their successors and assigns.
17.2 SEVERABILITY
If any term or provision of this CEVCO Agreement shall to any extent be
invalid, the remainder of this CEVCO
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Agreement, shall not be affected thereby, and each term and provision of
this CEVCO Agreement shall be valid and enforceable.
17.3 NO WAIVER
The failure of any Party to enforce at any time any of the provisions of
this CEVCO Agreement, or to require at any time performance by the other
Parties of any of the provisions hereof, shall in no way be construed to
be a waiver of such provisions, nor in any way to affect the validity of
this CEVCO Agreement or any part thereof, or the right of any Party
thereafter to enforce every such provision.
17.4 MODIFICATION OR AMENDMENT
No modification or amendment of all or any part of this CEVCO Agreement
shall be valid unless it is reduced to a writing which expressly states
that the Parties thereby agree to a modification or amendment as
applicable and signed by the Parties hereunder.
17.5 GOVERNING LAW AND INTERPRETATION
Interpretation and performance of this CEVCO Agreement shall be in
accordance with the laws of the Republic of France.
17.6 HEADINGS
The titles and headings in this CEVCO Agreement are inserted solely for
convenience and shall not be utilized for the interpretation of this
CEVCO Agreement.
17.7 ORIGINALS OF THIS CEVCO AGREEMENT
17.7.1 Subject to Section 17.7.2, this CEVCO Agreement may be executed in
more than one original counterparts, which will be considered one
and the same agreement.
17.7.2 The Parties acknowledge and agree that, although this CEVCO
Agreement shall be executed in more than one original
counterparts, there shall be only one original set of maps
constituting Part A of Schedule V. These maps shall be included
only in the original counterpart delivered to CEVCO. CEVCO hereby
agrees to make such maps available to the Site Parties, at its
offices on the Site during normal business hours, upon reasonable
prior notice to CEVCO. Each of the Site Parties shall have the
right, at its sole cost and expense, to make copies of all or a
part of such map for their own records.
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17.8 RELATIONSHIP OF THE PARTIES
17.8.1 This CEVCO Agreement shall not create an association, joint
venture, or partnership among or between the Parties nor does it
impose any obligations with third parties, nor any partnership
obligation or liability upon either Party. Except as otherwise
expressly contemplated hereby or by the CEVCO Stockholders
Agreement, no Party shall have any right, power, or authority to
represent the other as an agent or representative or obligate such
Party to act in any different capacity.
17.8.2 Notwithstanding anything to the contrary set forth herein, (x) RPC
shall be fully liable for any and all obligations of the persons
and entities set forth on Exhibit A and CEVCO and ChlorAlp shall
look solely to RPC with respect to all dealings under this CEVCO
Agreement, including but not limited to all consents, waivers,
amendments, modifications and all matters respecting enforcement
of this CEVCO Agreement and (y) that the restrictions and
limitations hereunder (including, but not limited to, Sections
3.1.2 and 3.1.3) apply to RPC and such persons and entities set
forth on Exhibit A in the aggregate and shall not be construed to
be separate and independent restrictions or limitations on the
activities of such person or entity acting on its own.
17.9 CONTRACTUAL CURRENCY
17.9.1 The specification of French Francs (or the legal tender or
currency of France hereinafter in effect) is of the essence, and
such currency shall be the currency of account in the case of all
obligations under this Agreement (the "Contractual Currency").
Each payment under this Agreement will be made in the Contractual
Currency at the place specified for payment. To the extent
permitted by applicable laws, rules or regulations any obligation
to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency or at any place other than as
required therein.
17.9.2 To the extent permitted by applicable laws, rules and regulations,
if any judgment or order expressed in a currency other than the
Contractual
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Currency is rendered for the payment of any amount owing in
respect of this Agreement, the Party seeking recovery, after
recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will (i) be entitled
to receive immediately from the liable Party, and shall have a
separate cause of action therefor, such additional amounts (if
any) as may be necessary to insure that the amount paid on the
date of payment is the amount in such other currency which, when
converted into the Contractual Currency and transferred to such
Party's place of payment hereunder in accordance with normal
banking procedures, will result in the amount then due in the
Contractual Currency and (ii) be required to refund promptly to
the other party, which other party shall have a separate cause of
action therefor, such amounts (if any) as may be necessary to
insure that the amount paid on the date of payment is the amount
in such other currency which, when converted into the Contractual
Currency and transferred to such party's place of payment
hereunder in accordance with normal banking procedures, will
result in the amount then due in the Contractual Currency.
17.10 ASSIGNMENT
(a) The terms and provisions of this Agreement are intended solely for
the benefit of each party hereto and their respective successors or
permitted assigns, and it is not the intention of the parties to confer
third-party beneficiary rights upon any other person other than XxXxxxx
pursuant to clauses (b), (c) and (d) below.
(b) Subject to paragraph (c) and (d) below, neither this Agreement nor
any right, interest or obligation hereunder may be Transferred by any
party hereto without the prior written consent of (x) RPC and XxXxxxx, in
the case of any such assignment by ChlorAlp or CEVCO, or (y) XxXxxxx, in
the case of any such assignment by RPC, and any attempt to do so will be
considered null and void.
(c) However, no such consent shall be required for any assignment by any
Site Party of all (but not less than all) of the right, title and
interest in and to this Agreement (i) to the successor of any Site Party,
as a result of a merger or a sale by such Site Party of all or
substantially all of its business and assets; (ii) in the case of RPC, to
Rhodia S.A. under RPC's current reorganization plan, or (iii) in the case
of RPC, to a Permitted Transferee who is the purchaser or transferee of
all (but not less than all) of RPC's business and assets located at the
Site, provided,
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that (x) in connection with any such sale or transfer under clauses (i)
or (iii) or in connection with the transaction under clause (ii), the
purchaser or transferee thereunder or Rhodia S.A., as applicable, shall
assume (without any amendments thereto) all of the obligations of such
Site Party hereunder, and (y) in the case of RPC, if at the time of the
assignment of this Agreement, the contracts concluded with UFB Locabail
and GHH Borsig and contributed by RPC to the GIE, subject to the
condition that RPC remain a stockholder of the GIE, are still in effect,
RPC shall obtain any required consent of UFB Locabail and GHH Borsig.
(d) XxXxxxx shall not unreasonably withhold its consent in connection
with any assignment by RPC of all (but not less than all) of its right,
title and interest in and to this Agreement to a Permitted Transferee if
such assignment is not in connection with the purchase or transfer by RPC
of all (but not less than all) of RPC's business and assets located at
the Site, provided, that, (x) in connection with any such assignment, the
Permitted Transferee shall assume (without any amendments thereto) all of
the obligations of RPC hereunder, and (y) if at the time of the
assignment of this Agreement, the contracts concluded with UFB Locabail
and GHH Borsig and contributed by RPC to the GIE, subject to the
condition that RPC remain a stockholder of the GIE, are still in effect,
RPC shall obtain any required consent of UFB Locabail and GHH Borsig.
"Permitted Transferee" means (i) ARCO CHIMIE FRANCE S.N.C. (RCS: B 333
834 562); (ii) Air Liquide S.A. (RCS: B 552 096 281); or (iii) Air
Products S.A. (RCS: B 378 915 854); provided, that at the time of its
acquisition of all (but not less than all) of RPC's right, title and
interest in and to this Agreement, such entity has a tangible net worth
not significantly less than its tangible net worth as of the date of this
Agreement; or (iv) any other Person who, at the time of its acquisition
of all (but not less than all) of RPC's rights, title and interest in and
to this Agreement (I) has a tangible net worth at least equal to that of
XxXxxxx as of the date of the assignment and is of recognized standing
and financial responsibility in France; (II) is not a competitor of
ChlorAlp (or any Affiliate thereof) in any current line of business of
such Person and is not involved in any important dispute and is not an
adverse party in any pending litigation or pending arbitration with
ChlorAlp (or any affiliate thereof); and (III) is a participant in the
"Responsible Care(R)" or any analogous local initiative and a subscriber
to its principles or the applicable French initiatives and principles
providing for the highest operational standards for chemical companies
doing business in France and Western Europe for the protection of health,
safety and the environment.
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17.11 LANGUAGE
All notices, communications, evidence, reports, opinions and other
documents given or to be given under this Agreement, unless made in the
French or English language, shall be accompanied by an English
translation. In all events, the English version of this Agreement and of
all such notices, communications, evidence, reports, opinions and other
documents shall govern as between the parties in the event of any
conflict with the non-English version hereof or thereof, provided that
when used in the English version of this Agreement, French language words
or terms shall have their precise French meanings.
17.12 SURVIVAL
Expiration or termination of this CEVCO Agreement shall not relieve the
Parties of any obligation that by its nature should survive expiration or
termination, including, among others, warranties, remedies, and promises
of indemnity and confidentiality.
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EXHIBIT A. TO THE CEVCO AGREEMENT
1. TERIS as successor to Societe d'Exploitation de l'Incineration de Pont de
Claix;
a societe anonyme having its registered office located at ZI des Gatines,
00 xxx Xxxxxx Xxxxx, 00000 Plaisir, with a capital of FF 213,000,000,
registered with the Registry of Commerce and Companies of Versailles
under the number B 383 556 693;
2. Xxxxx-Xxxxxxx Agro Matieres Actives;
a societe anonyme having its registered office located at 00 xxx Xxxxxx
Xxxxxx, 00000 Lyon, with a capital of FF 640,250,000, registered with the
Registry of Commerce and Companies of Lyon under the number 399 135 532;
3. Elf Atochem SA;
a societe anonyme having its registered office located at La Xxxxxxx 00,
00000 Xxxxx La Defense Cedex, registered with the Registry of Commerce
and Companies of Nanterre.
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SCHEDULE I
[*]
* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.
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SCHEDULE II
Schedule II will be provided upon request.
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SCHEDULE III - SPECIFICATIONS
Schedule III will be provided upon request.
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SCHEDULE IV
OWNERSHIP, READING AND MAINTENANCE OF INVOICE METERS
Schedule IV will be provided upon request.
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SCHEDULE V
Schedule V will be provided upon request.
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IN WITNESS WHEREOF, this CEVCO Agreement is executed on the 17th day of the
month of October of 1997.
CEVCO G.I.E.
By: Xxxxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxx
CHLORALP S.A.S
By: Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
XXXXX-XXXXXXX CHIMIE S.A., on its own
behalf and, subject to Section 17.8.2,
on behalf of the parties set forth on
Exhibit A
By: Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
