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Asphalt Trucking Transportation Services Agreement

Transportation Services Agreement

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 This Transportation Services Agreement involves

WESTERN REFINING LOGISTICS, LP | Asphalt Trucking Transportation Services | Western Refining Company, LP | Western Refining GP, LLC | Western Refining Southwest, Inc | Western Refining Wholesale, LLC

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Title: ASPHALT TRUCKING TRANSPORTATION SERVICES AGREEMENT
Governing Law: Texas     Date: 8/4/2016
Industry: Oil Well Services and Equipment     Sector: Energy

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

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Exhibit 10.1

ASPHALT TRUCKING TRANSPORTATION SERVICES AGREEMENT

This Asphalt Trucking Transportation Services Agreement (this “ Agreement ”) is dated effective as of January 1, 2016 (the “ Effective Date ”), by and among Western Refining Wholesale, LLC, a Delaware limited liability company (“ Carrier ”), Western Refining Company, L.P., a Delaware limited partnership (“ Shipper” ), and, solely for purposes of acknowledging Section 2(c) hereof, Western Refining Southwest, Inc., an Arizona corporation (“ WRSW ”). Carrier and Shipper are individually referred to as a “ Party ”, collectively to as “ Parties ”. Capitalized terms used throughout this Agreement shall have the meanings set forth in Exhibit A , unless otherwise specifically defined herein.

RECITALS

A.

Shipper produces performance grade asphalt binders and various other asphalt products at its refinery located in El Paso, Texas (the “ El Paso Refinery ”).

 

C.

Shipper markets performance grade asphalt binders and other asphalt products out of certain non-owned asphalt terminals located in El Paso, Texas, Albuquerque, New Mexico, and Phoenix, Tucson and Coolidge, Arizona (collectively, the “ Asphalt Terminals ”).

 

D.

Carrier owns and operates a truck-based asphalt transportation operation that can provide service to Shipper, using a combination of self-owned and Third Party trucks dispatched and scheduled by Carrier.

 

E.

Shipper desires that Carrier (i) transport or cause to be transported asphalt from the El Paso Refinery and/or other receipt points (“ Receipt Points ”) to the Asphalt Terminals and/or directly to customers located in Texas, New Mexico, and Arizona (collectively, the “ Delivery Points ”), (ii) coordinate the pickup and delivery of such asphalt from the Receipt Points to the Delivery Points, and (iii) provide Shipper with certain ancillary services with respect to such transportation services, subject to and upon the terms and conditions of this Agreement.

 

F.

Carrier will transport, coordinate the pickup of and deliver such asphalt, as well as provide the aforementioned ancillary services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the covenants and obligations contained herein, the Parties to this Agreement hereby agree as follows:

1.

TRANSPORTATION SERVICES

(a)      From the Effective Date through the end of the Term (as defined below), (i) Shipper may request from time to time that Carrier transport asphalt from the Receipt Points to the Delivery Points and (ii) Carrier shall use commercially reasonable efforts to receive or cause to be received

 

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

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from the Receipt Points and to transport or cause to be transported to the Delivery Points such asphalt as requested by Shipper, subject to available capacity.

2.

VOLUME COMMITMENT; RIGHT OF FIRST REFUSAL

(a)      There is no minimum volume of asphalt that Shipper is required to request be transported by Carrier hereunder.

(b)      During the Term and subject to the terms and conditions of this Section 2(b) , Shipper shall provide, and shall cause its Affiliates to provide, Carrier with a first right to transport or cause to be transported all volumes of asphalt that Shipper or any of its Affiliates desire to transport in the States of Texas, New Mexico and Arizona, in each case, that is to be transported by truck. Only in the event that Carrier affirmatively declines in writing to provide truck transportation for Shipper’s asphalt may Shipper engage another carrier to transport such asphalt.

(c)      Effective as of May 1, 2016, all volumes of asphalt transported and caused to be transported by Carrier for Shipper pursuant to this Agreement shall count, on a Barrel per Barrel basis, towards the Minimum Volume Commitment of the Shipper and its Affiliate, WRSW, in the Crude Oil Trucking Agreement.

3.

TERM OF AGREEMENT

(a)      Unless otherwise terminated as provided herein, this Agreement shall be effective as of the Effective Date and will remain in effect until October 14, 2025 (the “ Initial Term ”).

(b)      The Initial Term and any mutually agreed upon extensions thereof shall be referred to herein as the “ Term ”.

4.

FEES; ADJUSTMENTS; AND REIMBURSEMENT FOR CAPITAL EXPENDITURES

(a)      Base Rate : Shipper shall pay Carrier in accordance with the rates per Ton for delivery to each Delivery Point as set forth on Schedule 4 (the “ Base Rates ”) for providing trucking, dispatch, delivery and accounting/data services under this Agreement.

(b)      Fuel Adjustments and Surcharges : In addition to the Base Rates, Carrier shall charge, and Shipper shall pay the following additional amounts:

(i)      a Monthly per Barrel adjustment calculated in the manner described in Schedule 4(b)(i) to cover any increase (or decrease) in fuel prices (as determined by reference to the U.S. Energy Information Administration’s On-Highway Diesel Prices for the PAD III Region) incurred or experienced by Carrier during such Month in connection with providing truck services under this Agreement; provided, however, that such adjustment shall never be of an amount less than zero;

 

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

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(ii)      a Monthly surcharge on the services provided hereunder to cover Shipper’s proportionate share of the costs of complying with any new laws or regulations or material changes to any existing laws or regulations, in each case occurring after the Effective Date, that affect the services provided to Shipper, if, after Carrier has made commercially reasonable efforts to mitigate the effect of such laws or regulations (or such changes to existing laws or regulations), such new laws or regulations (or such changes to existing laws or regulations) require Carrier to make unanticipated capital expenditures. Carrier will reasonably determine the amount of any such Monthly surcharge and shall provide Shipper with written notice of the amount of such Monthly surcharge along with supporting calculations and documentation.

(c)      Reimbursements : Shipper shall reimburse Carrier for the actual costs of any capital expenditures Carrier agrees to make at Shipper’s request to provide services hereunder.

(d)      Fees for Other Services : In addition to the transportation services contemplated by this Agreement, Carrier may, from time to time, upon request from Shipper, provide the additional services described on Schedule 4(d) to Shipper, and Shipper shall pay Carrier for such services in accordance with the rates set forth on Schedule 4(d) .

(e)      Taxes . Shipper agrees to be liable for and to pay directly or reimburse Carrier for, promptly when due, all sales, use, excise and other taxes or charges (including any interest and penalties), now or hereafter imposed by any governmental body or agency upon Carrier or with respect to the services or payments hereunder (excluding (a) taxes on or measured by the net income of Carrier, (b) taxes related to Carrier’s employees or property and (c) ad valorem or any other tax based on the value of Carrier’s transport vehicles or other equipment used to provide the services, each of which Carrier shall be liable for and pay).

5.

PAYMENTS

(a)      Carrier shall invoice Shipper on a per load basis, and Shipper shall pay all amounts due no later than fifteen (15) calendar days after Shipper’s receipt of Carrier’s invoices.

(b)      Any past due amounts owed by Shipper to Carrier shall accrue interest, payable on demand, at a rate equal to the lesser of : (i) the Wall Street Journal prime rate plus two hundred basis points or (ii) the maximum rate permitted by applicable law, from the due date of the payment through the actual date of payment.

6.

SERVICES PROVIDED BY CARRIER; VOLUME LOSSES

(a)      Requests for the transportation of asphalt under this Agreement and/or the provision of the other services described on Schedule 4(d) shall be made by Shipper on a “call and demand” basis. Carrier shall use commercially reasonable efforts to schedule and dispatch all pick-ups of asphalt requested by Shipper on such “call and demand” basis.

(b)      Carrier shall load only that asphalt which it is authorized to load pursuant to directions received from Shipper. The quantity of the asphalt received by Carrier shall be determined by

 

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

Execution Copy

 

scales. Shipper, as part of its quality control, may test the quality of asphalt delivered by Carrier. Carrier agrees to abide by the quality control procedures mutually agreed by the Parties from time to time. Shipper shall at all times retain title to the asphalt, transported and delivered by Carrier hereunder.

(c)      Except in the case of normal course physical losses which are contemplated under Section 6(f) below, Shipper shall remain responsible for all risk of loss, damage, deterioration, or contamination as to such asphalt, except for that caused by the negligence, gross negligence, willful misconduct or breach of this Agreement by Carrier, its agents, employees or contractors.

(d)      Promptly following receipt of asphalt from any designated Receipt Point, Carrier shall expeditiously transport the asphalt to the Delivery Points. Upon arrival at the Delivery Points, Carrier shall unload the asphalt in compliance with this Agreement unless otherwise specified in writing.

(e)      Carrier shall maintain a true and correct set of records related to the services hereunder, including invoices, bills of lading, receipt tickets, transportation records, and delivery tickets, showing the date, volumes, receipt location and delivery location for all asphalt transported by Carrier in detail sufficient to provide reasonable verification of any charges to Shipper hereunder. Carrier will provide Shipper with a secure electronic data feed, or other communication method, which shall accurately report all the above information and other information mutually agreed upon by the Parties on a current, daily basis. Carrier shall maintain such records for a period not less than two (2) years. Shipper, or its representatives, may from time to time, at Shipper’s expense, audit any such records and Carrier agrees to permit Shipper, or its representative, access to examine and audit such records at all reasonable times and upon receipt of reasonable advance notice. Carrier shall promptly refund to Shipper any amounts paid by Shipper in excess of amounts properly payable under the terms of the Agreement.

(f)      Carrier shall have no obligation to measure volume gains and losses and shall have no liability whatsoever for normal course physical losses that may result from the handling and transporting of asphalt through trucks that Carrier dispatches, REGARDLESS OF WHETHER ANY OF THE ABOVE ARE ATTRIBUTABLE TO OR ARISE FROM THE JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR RESPONSIBILITY OF CARRIER, except where such losses are the direct result of the willful misconduct or gross negligence of Carrier.

7.

SAFETY/PREVENTION

(a)      Carrier agrees that transportation services provided hereunder shall be conducted in accordance with all Applicable Laws and Prudent Industry Practices.

(b)      Carrier shall only employ for the provision of services contemplated under this Agreement such employees that have been properly instructed, trained and certified as to the characteristics and safe loading, handling, hauling, delivery, and unloading methods associated with

 

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

Execution Copy

 

asphalt in accordance with Applicable Law and Prudent Industry Practices. Carrier shall ensure, in accordance with Prudent Industry Practices, that its employees comply with all safety rules to avoid, injury to workers and others, and damage to equipment and property.

8.

ACCIDENT REPORTING; HAZARDOUS CONDITIONS; SPILL RESPONSE PLAN

(a)      Carrier hereby acknowledges and agrees that Shipper has retained Carrier to transport petroleum products, and understands that such products may constitute or contain Hazardous Materials, as defined in the Hazardous Materials Transportation Act, 49 U.S.C. §5101 et seq. , as amended, and the regulations of the U.S. Department of Transportation made thereunder. Carrier represents and warrants that it is fully qualified and authorized to transport Hazardous Materials in the United States. Carrier and Shipper certify that they are familiar with U.S. laws and regulations applicable to transportation of Hazardous Materials and that they will comply with all such laws and regulations.

(b)      Carrier will observe and comply with all of Shipper’s reasonable standard loading and unloading procedures, including any truck loading sequence procedures. Upon Carrier request, Shipper will provide a copy of the Material Safety Data Sheet for the Hazardous Materials.

(c)      Carrier shall use its commercially reasonable efforts to reduce and minimize accidents arising in connection with the services hereunder and shall promptly report to Shipper all accidents or occurrences resulting in injuries to any of Shipper’s employees or Third Parties, and/or any damage to any property of Shipper or any Third Party, arising out of or during the performance of services under this Agreement.

(d)      In the event there is a release of asphalt or damage to the environment by Carrier in performing the services provided hereunder, Carrier shall clean up such spill and remediate such damage in accordance with Applicable Law, and if a “clean and clear” letter from the applicable oversight agency is provided to Carrier, a copy of such clean and clear letter will be sent Shipper promptly after its receipt thereof. Carrier shall inform Shipper of any notices, warnings, or asserted violations issued by any Governmental Authorities relative to any service performed by Carrier pursuant to this Agreement.

(e)      In the event Carrier becomes aware of any environmental, health or safety conditions that violate any Applicable Law or any other conditions concerning the Asphalt Terminals or any of Shipper’s premises or facilities that create a hazardous condition, Carrier shall promptly provide Shipper with telephonic notice at the numbers set forth herein, informing Shipper about the details of the condition.

(f)      Upon request, Carrier shall provide a copy of its spill contingency plans to Shipper, and Carrier must meet minimum requirements for rapid response and short-term containment. If Shipper believes Carrier does not respond promptly to any type of hazard, Shipper may respond

 

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

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and any such response shall not be considered an act as a volunteer, and Carrier will be liable for the reasonable costs of the Shipper response.

9.

INSURANCE

Carrier shall maintain insurance policies of the type and amount as Carrier has historically maintained. Pursuant to that certain Omnibus Agreement dated as of October 16, 2013, by and among Western Refining, Inc., a Delaware corporation (“ WRI ”), Western Refining Logistics, LP, a Delaware limited partnership, Western Refining Logistics GP, LLC, a Delaware limited liability company, Shipper and Carrier (the “ Omnibus Agreement ”), it is currently anticipated that WRI or one of its Affiliates will provide Carrier with all necessary insurance coverage and Carrier shall reimburse WRI for the insurance premiums as set forth therein. To the extent that WRI fails or otherwise is no longer obligated to provide such insurance coverage pursuant to the Omnibus Agreement, Carrier agrees to purchase replacement policies at its sole cost and expense. The insurance required hereunder in no way limits or restricts Carrier’s obligations under law or this Agreement as to indemnification of Shipper.

10.

INDEMNITY

NEITHER PARTY SHALL BE LIABLE FOR ANY ACTIONS OR OMISSIONS TO ACT OF THE OTHER PARTY, OR OF ANY OF ITS EMPLOYEES, AGENTS OR REPRESENTATIVES. SUBJECT TO THE LIMITATIONS SET FORTH IN THIS AGREEMENT, EACH PARTY (THE “ INDEMNIFYING PARTY ”) AGREES THAT (EXCEPT AS PROVIDED FOR IN SECTION 6 ) IT SHALL, TO THE EXTENT PERMITTED BY LAW, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OTHER PARTY, ITS MEMBERS, DIRECTORS, OFFICERS, MANAGERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, LOSSES, LIABILITIES, CAUSES OF ACTION, JUDGMENTS, ASSESSMENTS, PENALTIES, COSTS, AND EXPENSES OF ANY KIND OR NATURE, INCLUDING REASONABLE ATTORNEYS FEES, EXPENSES OF LITIGATION AND COURT COSTS, WITHOUT REGARD TO THE AMOUNT (COLLECTIVELY “ LOSSES ”) TO THE EXTENT SUCH LOSSES ARE, DIRECTLY OR INDIRECTLY CAUSED BY, CONNECTED WITH, OR ARISE OUT OF THE INDEMNIFYING PARTY’S FAILURE TO COMPLY, OR ANY PRODUCTS SHIPPED BY THE INDEMNIFYING PARTY’S FAILURE TO COMPLY WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS, ORDINANCES, ORDERS, RULES AND REGULATIONS OR FROM ANY INTENTIONAL OR UNINTENTIONAL ACTION OR OMISSION TO ACT OF THE INDEMNIFYING PARTY, OR ITS MEMBERS, DIRECTORS, OFFICERS, MANGERS, AGENTS AND EMPLOYEES. IN THE EVENT THAT ANY SUCH INCIDENT THAT LEADS TO ANY CLAIM FOR INDEMNIFICATION IS THE RESULT OF INTENTIONAL OR UNINTENTIONAL CONDUCT OF BOTH PARTIES, EACH PARTY AGREES THAT IT SHALL BE LIABLE TO REIMBURSE AND INDEMNIFY THE OTHER PARTY TO THE EXTENT THAT LIABILITY AND RESPONSIBILITY WOULD BE APPORTIONED TO SUCH PARTY IN ACCORDANCE WITH

 

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

Execution Copy

 

THE LAWS OF COMPARATIVE NEGLIGENCE. TO RECEIVE THE FOREGOING INDEMNITY, THE PARTY SEEKING INDEMNIFICATION MUST NOTIFY THE INDEMNIFYING PARTY IN WRITING OF A CLAIM PROMPTLY AND PROVIDE ALL COOPERATION REASONABLY REQUESTED BY THE INDEMNIFYING PARTY (AT THE EXPENSE OF THE INDEMNIFYING PARTY).

11.

WAIVER OF CONSEQUENTIAL DAMAGES

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, AND NOTWITHSTANDING KNOWLEDGE, IF ANY, OF A PARTY OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, FOR ANY LOST PROFITS, OR SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, FROM SALE OF PRODUCT UNDER THE AGREEMENT OR FROM THE USE OR RESALE THEREOF, HOWEVER SAME MAY BE CAUSED AND REGARDLESS OF THE SOLE OR CONCURRENT NEGLIGENCE OF THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, OR OTHERWISE COULD HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES OR LIABILITIES IN ADVANCE. THE PARTIES AGREE THAT THE RESTRICTIONS AND LIMITATIONS ON DAMAGES CONTAINED IN THIS AGREEMENT DO NOT DEPRIVE THE PARTIES OF MINIMUM ADEQUATE REMEDIES AS CONTEMPLATED IN TEXAS UCC SECTION 2-719. The foregoing limitation is not intended and shall not limit any damages incurred by any Third Party and covered under any indemnity hereunder.

12.

TERMINATION

(a)      Termination for Default . A Party shall be in default under this Agreement if:

(i)      such Party materially breaches any provision of this Agreement and such breach is not cured within thirty (30) days after notice thereof (which notice shall describe such breach in reasonable detail) is received by such Party from any other non-breaching Party; or

(ii)      such Party (A)(1) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Applicable Law, or has any such petition filed or commenced against it, (2) makes an assignment or any general arrangement for the benefit of creditors, (3) otherwise becomes bankrupt or insolvent (however evidenced) or (4) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, and, with respect to any involuntary filings, and (B) such Party fails to remedy the same within sixty (60) days of the date of such filing.

(b)      If any of the Parties is in default as described above, then any other Party may (1) notwithstanding the terms of Section 3 , terminate this Agreement upon notice to the defaulting

 

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TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS (***).

Execution Copy

 

Party; (2) withhold any payments due to the defaulting Party under this Agreement; and/or (3) pursue any other remedy at law or in equity.

13.

FORCE MAJEURE

(a)      As soon as possible upon the occurrence of a Force Majeure (as defined below), the Party affected by such Force Majeure shall provide the other Party with written notice of the occurrence of such Force Majeure (a “ Force Majeure Occurrence Notice ”). The Party affected by such Force Majeure shall identify in such Force Majeure Occurrence Notice the approximate length of time that such Party reasonably believes in good faith such Force Majeure shall continue.

(b)      The obligations under this Agreement of the Party affected by such Force Majeure shall be temporarily suspended during the occurrence of, and for the entire duration of, a Force Majeure. The Party affected by such Force Majeure shall use commercially reasonable efforts to overcome such Force Majeure but shall not be obligated under this Agreement to settle a strike or labor dispute.

(c)      As soon as possible upon the cessation of a Force Majeure, the Party affected by such Force Majeure shall provide the other Party with written notice of the cessation of such Force Majeure (a “ Force Majeure Cessation Notice ”). The Party affected by such Force Majeure shall identify in such Force Majeure Cessation Notice the date on which such Force Majeure ceased to exist.

(d)      Nothing in this Section 13 shall excuse any Party from complying with its obligations under this Agreement arising prior to the occurrence of such Force Majeure, including any obligation to make payments when due under this Agreement.

(e)      Notwithstanding anything contained herein to the contrary, if (i) the Party affected by an event of Force Majeure (the “ Affected Party ”) is unable to resume the performanc


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