Common use of Operation of the Facility Clause in Contracts

Operation of the Facility. 1.1 During the term of this Agreement, and subject to the specific provisions set forth below (including without limitation the responsibility of the Purchaser Representative as defined in paragraph 1.2), Elenac shall, under the direction of Purchaser, manage the Facility (“Betriebsführung”) by providing the services, human resources and certain materials and utilities required in order to operate the Facility for the production and interim storage of Elastomers. Such operations shall be conducted as far as reasonably practicable in a manner consistent with its operations prior to the Commencement Date (as defined in paragraph 4.1), subject to any operational changes as (i) may be necessitated by applicable law or health, safety and/or environmental considerations, or (ii) directed by the Purchaser Representative, provided that same are feasible and within applicable law. The Purchaser shall exclusively communicate his directions and instructions (within the responsibilities set forth in paragraph 1.2) to a representative designated by Elenac (“Elenac Representative”). The Purchaser shall be consulted on the identity of the Elenac Representative and may propose candidates for consideration. However, Elenac reserves the right to select the Elenac Representative. 1.2 During the term of this Agreement, Purchaser will appoint a designee to serve as Purchaser’s representative (“Purchaser Representative”) for the Facility. Subject to compliance with applicable law and other rules, regulations and requirements, including without limitation those relating to health, safety and environmental matters, of the Wesseling site (“Site”), and unless otherwise stated in this paragraph 1.2, the Purchaser Representative shall have overall responsibility for the operation and maintenance of the Facilities, including, without limitation, production scheduling and performance, provided, however, that Elenac shall have the overall responsibility for its employees. The Purchaser Representative may appoint from Purchaser one or more assistants, financial controllers and other staff (“Staff”) to assist him in the performance of his duties. For the avoidance of doubt the second last sentence of paragraph 1.1 shall also apply with regard to the Purchaser Representative and Staff. In the event that, subject to the proviso in the second sentence of this paragraph 1.2, any Staff member so appointed shall functionally replace any employee of Elenac, any severance and other similar costs related to such replaced employees that are not, despite Elenac’s reasonable efforts to do so, reassigned to other activities within Elenac, shall be borne by Purchaser. The Purchaser Representative and Staff shall be responsible to Elenac’s Site manager with respect to health, safety and environmental matters and to the operation of the Site as a whole. In particular, and without limiting the generality of the foregoing, the Purchaser Representative shall have the right to request termination or reassignment of any Elenac employee working at or in connection with the Facility, but only to the extent that such employee’s acts or omissions are sufficient cause for Elenac to terminate or reassign such employee pursuant to his contract or other terms of employment, and provided further that the exercise of such right shall be subject to any applicable limitations of law. 1.3 Purchaser acknowledges and agrees that, except to the extent arising out of Elenac’s gross negligence or wilful breach of its obligations under this Agreement, neither Elenac, nor its shareholders, nor any of their respective directors, officers, employees or agents, shall be liable to Purchaser for any claims, damages, losses, liabilities or expenses of any kind, including without limitation any loss of profits, loss of use, loss of revenue, loss of contract, loss of goodwill or any indirect or consequential losses or damages of any kind whatsoever, arising in connection with the operation or maintenance of the Facility (collectively, “Claims”). Purchaser shall indemnify and hold harmless Elenac, its shareholders and their respective directors, officers, employees or agents from and against any and all Claims. In particular, and without limiting the generality of the foregoing, Elenac shall have no liability based on a failure of the Facilities to produce Product of a certain amount, deficiencies in raw material yields, or any other similar failure with respect to the performance of the Facility, except to the extent arising out of Elenac’s gross negligence or wilful breach of its obligations under this Agreement. In addition to the foregoing limitations, Elenac’s liability in connection with the operation or maintenance of the Facilities shall be limited in any event to an annual aggregate liability equal to twenty-five percent (25%) of the Service Fees invoiced to Purchaser in the twelve (12) months immediately preceding the date on which the event upon which such liability is based occurred. 1.4 Elenac shall be entitled, without incurring liability of any kind, either direct or consequential, to shut down the Facility or Elenac’s butadiene production facility at any time where health, safety, environmental and/or other risks of a significant and urgent nature have arisen to justify such action, and to continue such shutdown until the risk in question has been removed. 1.5 In the event of any dispute between the Purchaser Representative and Elenac, the Parties shall discuss the matter in an attempt at resolution. Should the matter not be resolved within 60 days, then either Party may initiate an arbitration proceeding as set forth in paragraph 14 below. 1.6 Elenac acknowledges the ownership and license rights of Purchaser with respect to the technology that will be practised at the Facility. To the extent necessary, Purchaser hereby grants a limited license to Elenac to utilize such technology (and any other information it may disclose for use by Elenac) in connection with the performance of Elenac’s duties hereunder. Elenac further agrees that, to the extent that technology or process improvements are made by it or its employees in the context of performing its duties hereunder, such improvements shall be the exclusive property of Purchaser to the extent that they relate to the production of Product, and, to the extent that such improvements can be utilized in other applications, such improvements shall be licensed, including the right to sub-license, by Elenac to Purchaser, on a non-exclusive basis, at no cost to Purchaser. Purchaser confirms that it is duly authorised and has the right to have the Product manufactured by Elenac in accordance with this Agreement and Purchaser shall indemnify and hold harmless Elenac against all loss and damage (including reasonable legal costs) incurred by Elenac as a result of any claim that the manufacture of the Product in accordance with this Agreement infringes the intellectual property rights of any third party (any such claim an “Infringement Claim”), unless such Infringement Claim is proven by the Purchaser to relate exclusively to use of methods, processes, designs or other technology developed by Elenac and already employed by it prior to the Commencement Date (as defined hereinafter). Elenac shall promptly notify the Purchaser upon becoming aware of any Infringement Claim and provide the Purchaser (at Purchaser’s cost) with such assistance as the Purchaser may reasonably require in the settlement or defence of any such claim. 1.7 Elenac will use all reasonable efforts to provide to the Purchaser, by no later than the twentieth day of each calendar month in any calendar year (in respect of the previous calendar month and on a year-to-date basis), information enabling the Purchaser properly to monitor and assess performance by reference to the targets set out in the then applicable operating plan, operating budget and maintenance budget for the Facility, including without limitation such performance with respect to health, safety and environmental matters, quality, volumes and yields.

Operation of the Facility. 1.1 During the term of this Agreement, and subject to the specific provisions set forth below (including without limitation the responsibility of the Purchaser Owner Representative as defined in paragraph 1.2), Elenac the Operator shall, under the direction of Purchaserthe Owner, manage the Facility (“Betriebsführung”) by providing and provide the services, human resources and certain materials and utilities required in order to operate the Facility for the production and interim storage of Elastomerselastomers (the “Services”) as have historically been provided by Operator to Owner. Such The Operator shall conduct all the Services, during the term of this Agreement safely and efficiently, and in accordance with: (a) all applicable laws and regulations; (b) Good Industry Practice; (c) the reasonable instructions of the Owner’s Representative given in accordance with this Agreement; and (d) Site HSE standards. The Operator shall conduct such operations shall be conducted as far as reasonably practicable in a manner consistent with its operations operation of the Facility prior to the Commencement Date (as defined in paragraph 4.1), subject to any operational changes as (i) may be necessitated by applicable law or health, safety and/or environmental considerations, or (ii) directed by the Purchaser Owner via its Owner Berre Operating Production Agreement 2 Representative, provided that same are feasible and within applicable law. The Purchaser Owner shall exclusively communicate his its directions and instructions (within the responsibilities set forth in paragraph 1.2) to a representative designated by Elenac the Operator (the “Elenac Operator Representative”). The Purchaser Owner shall be consulted on the identity of the Elenac Operator Representative and may propose candidates for consideration. However, Elenac the Operator reserves the right to select the Elenac Operator Representative. 1.2 During the term of this Agreement, Purchaser the Owner will appoint a designee to serve as Purchaserthe Owner’s representative (the “Purchaser Owner Representative”) for the Facility. Subject to compliance with applicable law and other rulesregulations, regulations and requirementsincluding, including without limitation limitation, those relating to health, safety and environmental matters, matters of the Wesseling Berre site (the “Site”), and unless otherwise stated in this paragraph 1.2, the Purchaser Owner Representative shall have overall responsibility for the operation and maintenance of the FacilitiesFacility, including, without limitation, production scheduling and performance, provided, however, that Elenac the Operator shall have the overall responsibility for its employees. The Purchaser Owner Representative may appoint from Purchaser the Owner one or more assistants, financial controllers and other staff (the “Staff”) to assist him in the performance of his duties. For the avoidance of doubt the second last sentence of paragraph 1.1 shall also apply with regard to the Purchaser Owner Representative and Staff. In the event that, subject to the proviso provision in the second sentence of this paragraph 1.2, any Staff member so appointed shall functionally replace any employee of Elenacthe Operator, any severance and other similar costs related to such replaced employees that are not, despite Elenacthe Operator’s reasonable efforts to do so, reassigned to other activities within Elenacthe Operator, shall be borne by Purchaserthe Owner. The Purchaser Owner Representative and the Staff shall be responsible to Elenaccomply with all directions of the Operator’s Site manager with respect to health, safety and environmental matters and to the operation of the Site as a wholewhole as long as these do not contradict applicable laws. In particular, and without limiting the generality of the foregoing, the Purchaser Owner Representative shall have the right to request termination or reassignment of any Elenac Operator employee working at or in connection with the Facility, but only to the extent that such employee’s acts or omissions are sufficient cause for Elenac the Operator to terminate or reassign such employee pursuant to his contract or other terms of employment, and provided further that the exercise of such right shall be subject to any applicable limitations of law.. Berre Operating Production Agreement 3 1.3 Purchaser The Owner acknowledges and agrees that, except to the extent arising out of Elenacthe Operator’s gross negligence or wilful breach of its obligations under this Agreement, and subject to paragraphs 4.6, 4.7, 4.8, 4.10, 16.3, 16.4, 17.1 and 17.2, neither Elenacthe Operator, nor its shareholders, nor any of their respective directors, officers, employees or agents, shall be liable to Purchaser for any claims, damages, losses, liabilities or expenses of any kind, including without limitation any loss of profits, loss of use, loss of revenue, loss of contract, loss of goodwill or any indirect or consequential losses or damages of any kind whatsoever, arising in connection with the operation or maintenance of the Facility (collectively, “Claims”). Purchaser The Owner shall indemnify and hold harmless Elenacthe Operator, its shareholders and their respective directors, officers, employees or agents from and against any and all such Claims. In particular, and without limiting the generality of the foregoing, Elenac the Operator shall have no liability based on a failure of the Facilities Operator to produce Product at the Facility of a certain amount, for deficiencies in raw material yields, or any other similar failure with respect to the performance of the Facility, except to the extent arising out of Elenacthe Operator’s gross negligence or wilful breach of its obligations under this Agreement. In addition to the foregoing limitations, Elenacthe Operator’s liability in connection with the operation or maintenance of the Facilities Facility shall be limited in any event to an annual aggregate liability equal to twenty-five percent (25%) of the Service Fees Fee invoiced to Purchaser the Owner in the twelve (12) months immediately preceding the date on which the event upon which such liability is based occurred. 1.4 Elenac The Operator shall be entitled, without incurring liability of any kind, either direct or consequential, to temporarily shut down the Facility or Elenacthe Operator’s butadiene production facility at any time where health, safety, environmental and/or other risks of a significant and urgent nature have arisen to justify such action, and to continue such shutdown until the risk in question has been removed. 1.5 In the event of any dispute between the Purchaser Representative Owner and Elenacthe Operator, the Parties shall discuss the matter in an attempt at resolution. Should the matter not be resolved within 60 (sixty) days, then either Party may initiate an arbitration proceeding as set forth in paragraph 14 15 below.. Berre Operating Production Agreement 4 1.6 Elenac The Operator acknowledges and agrees that the ownership Owner owns all title, right and license rights of Purchaser with respect to interest in the technology that will be practised and processes used by the Operator at the FacilityFacility under this Agreement. To the extent necessary, Purchaser The Owner hereby grants a limited license to Elenac the Operator to utilize such technology and processes (and any other information it may disclose for use by Elenacthe Operator) in connection with for the performance of Elenacthe Operator’s duties hereunder. Elenac The Operator further agrees that, to the extent that technology or process improvements are made by it or its employees in the context of performing its duties hereunder, all title and rights in such improvements shall be the exclusive property of Purchaser and vest in the Owner to the extent that they relate to the production of Product, and, to the extent that such improvements can be utilized in other applications, the Operator hereby grants to the Owner a non-exclusive, royalty fee, perpetual licence to use such improvements shall be licensedimprovements, including the right to sub-license, by Elenac to Purchaser, on a non-exclusive basis, at no cost to Purchaserlicense for such other applications. Purchaser The Owner confirms that it is duly authorised and has the right to have the Product manufactured by Elenac the Operator in accordance with this Agreement and Purchaser shall indemnify and hold harmless Elenac against all loss and damage (including reasonable legal costs) incurred by Elenac as a result Agreement. In the event of any claim by a third party that the manufacture of the Product in accordance with this Agreement infringes the intellectual property rights Operator’s use of any third party right licensed by the Owner to the Operator infringes an IP right (any such claim an “Infringement Claim”), the Owner shall, at its option, either defend the Infringement Claim on behalf of the Operator or pay for the costs of the Operator’s defence and the Owner shall pay the amount of any award or judgment that may be made against the Operator by reason of such Infringement Claim unless such Infringement Claim is proven by the Purchaser to relate relates exclusively to use of methods, processes, designs or other technology developed by Elenac the Operator and already employed by it prior to the Commencement Date (as defined hereinafter)date of this Agreement. Elenac The Operator shall promptly notify the Purchaser Owner upon becoming aware of any Infringement Claim and provide the Purchaser Owner (at Purchaserthe Owner’s cost) with such assistance as the Purchaser Owner may reasonably require in the settlement or defence of any such claimInfringement Claim. 1.7 Elenac The Operator will use all reasonable efforts to provide to the PurchaserOwner, by no later than the twentieth day of each calendar month in any calendar year (in respect of the previous calendar month and on a year-to-date basis), information enabling the Purchaser Owner to properly to monitor and assess performance by reference to the targets set out in the then applicable operating plan, operating budget and maintenance budget for the Facility, including without limitation such performance with respect to health, safety and environmental matters, quality, volumes and yields. Berre Operating Production Agreement 5 (a) The Operator agrees to provide at cost (1) to KP ▇▇▇ BV “Materials I” (being materials used on the Site only at the Facility and, specifically, sulfuric acid and caustic soda, other process materials as agreed between the Operator and KP ▇▇▇ BV and dedicated spare parts), including handling and loading or unloading services (for the avoidance of doubt handling and unloading or loading services required are charged separately as direct component of the Service Fee) and “Materials II” (being utilities, auxiliaries, maintenance materials and other consumption materials for which the Operator has a need for other production facilities on the Site, all as agreed between the Operator and KP ▇▇▇ BV), in the case of Materials I only if requested by KP ▇▇▇ BV, Materials I and II jointly referred to hereinafter as “Materials”, and (2) to Owner handling and loading or unloading services for the Materials and for butadiene, styrene, isoprene and extender oil, secondary butyl lithium, cyclohexane, isopentane, n-hexane, and any other material the Owner requires for the operation of the Facility (for the avoidance of doubt handling and unloading or loading services required are charged separately as direct component of the Service Fee). The Owner or KP ▇▇▇ BV, as the case may be, shall itself arrange for the purchase of butadiene, hydrogen, styrene, isoprene, secondary butyl lithium, cyclohexane, isopentane, n-hexane, extender oil and any other material the Owner or KP ▇▇▇ BV requires to produce Product. Operator will enable the Owner to supply these materials in line with practices prior the Commencement Date. (b) The Operator warrants that it will have unencumbered title to each of the Materials sourced by it and used in the operation of the Facility. With respect to any Material sourced from a third party that is not suitable for use in the Facility, the Operator shall use all reasonable efforts to obtain any contractual remedy available from such third party supplier, and shall pass through to the Owner or KP ▇▇▇ BV (as the case may be), via a credit to the Service Fee, the incremental benefits of any remedy obtained from such third party supplier. KP ▇▇▇ BV AND THE OWNER ACKNOWLEDGE AND AGREE THAT THE WARRANTIES AND LIMITED LIABILITY EXPRESSLY SET FORTH IN THIS PARAGRAPH 2(b) ARE EXCLUSIVE, AND THAT ALL OTHER REMEDIES AND LIABILITIES FOR DEFECTIVE OR NON-CONFORMING MATERIALS ARE EXCLUDED. Berre Operating Production Agreement 6 (c) The Operator shall not be liable for any deficiency in the quantity of Materials deliveries (whether or not arising out of a force majeure), except to the extent arising out of the Operator’s gross negligence or wilful breach of its obligations under this Agreement. (d) The actual cost of Materials will either be invoiced on a monthly basis on receipt (Materials I) or actual consumption (Materials II), or through the Direct Component of the Service Fee (as defined in paragraph 5), as the Operator shall determine. Except as the Parties may otherwise agree, all consumption of Materials will be determined by calibrated measuring equipment, already installed or to be installed (as a capital investment pursuant to paragraph 5.4) and maintained at the Facility as part of the Direct Component of the Service Fee. (e) Title and risk of loss of Materials shall pass to the Owner or KP ▇▇▇ B.V. (as the case may be) upon receipt at the Facility; in particular, with respect to Materials delivered by pipeline, immediately after passing through the relevant metering system for the Facility.