EXHIBIT 10.100
WATER, HEAT, STEAM AND HOT WATER SUPPLY
AND USAGE AGREEMENT
THIS AGREEMENT, (the "Agreement") is made as of this
3rd day of October, 1996, by and between Tangshan Cayman
Heat and Power Company, Ltd., a Sino-foreign equity joint
venture company (the "Supplier") and Tangshan Panda Heat and
Power Company, Ltd., a Sino-foreign equity joint venture
company (the "User").
R E C I T A L S:
1. Supplier intends to acquire, own and operate certain
water xxxxx and pipeline systems, and to make available for
industrial use, water, heat, steam and hot-water (the
"Products") and their associated facilities.
2. User intends to construct, own and operate a 1x50 MW
heat and power, coal-fired generation facility to be located
in Luannan County, Hebei Province, People's Republic of
China (the "Project").
3. Supplier desires to sell its Products and User desires
to obtain such Products from the Supplier all upon the terms
and conditions contained herein below.
AGREEMENT:
NOW THEREFORE, based upon the mutual promises made and
benefits to be derived as a result of this Agreement,
Supplier and User hereby agree as follows:
1. Term. The term of this Agreement shall be for a
period of twenty (20) years from the date hereof.
2. Sale of Products. Supplier shall use its best efforts
to procure the Products and provide the Products to User and
User shall purchase all of its requirements for such
products from the Supplier in accordance with the terms of
this Agreement. In connection with Supplier's furnishing of
the Products, Supplier shall keep all records with respect
to volumes, pressures, and quantities of the Products made
available to the User for purchase and perform, directly or
indirectly all technical and administrative functions
related to its sale of the Products and User's purchase and
payment for all such Products.
3. User's Obligations. User shall be required, irrevocably
and unconditionally to purchase from Supplier all of its
requirements for the Products unless Supplier gives notice
that at any specific time such Products are not available
for sale to and purchase by User.
4. Supplier's Obligations. Supplier's obligations to User
shall be on a best efforts basis only. Supplier shall not
be limited or prohibited as a result of this Agreement from
making the Products available and from selling such Products
to any other party. Supplier's only obligation to User in
such event will be to give notice to User of the quantities,
volumes and rates of supply that will be available for
purchase by User. Notwithstanding the above, Supplier
intends to devote approximately fifty percent (50%) of its
resources to a sale of Products directly to the User.
5. Price. The price to be paid by the User for the
Products sold to it shall be a variable rate calculated
quarterly (or at such other intervals as Supplier may
require) as follows:
A Products Usage fee shall be paid as follows:
[***] THIS LANGUAGE FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
6. Payment. The Price due to be paid to Supplier as
calculated in Number 5 above, will be calculated by the
Supplier in Renminbi (or any successor official currency of
the People's Republic of China) on at least a quarterly
basis and an invoice for said amount shall be presented to
User. User shall have ten (10) days within which to pay
said invoice. Such payment will be made in Renminbi in cash
or by check or wire transfer to such account as Supplier may
direct that payment be made. Any amounts not paid within
said ten (10) days shall bear interest at the annualized
rate of fifteen percent (15%) (or if such rate is required
to be lower under Chinese law, rule or regulation, then at
the highest rate permitted thereby).
7. Dispute as to Payment. In the event User does not
agree with the invoiced amount, then User shall give notice
to Supplier with the said ten (10) day period, of the amount
in dispute, the reason for any discrepancy in the
calculation presented by Supplier, and User's calculation of
the charges then due. Supplier and User shall meet amicably
to resolve any such discrepancy, but in any event, User
shall make payment for all portions of the invoiced amount
that are not in dispute, within the time required for
payment.
8. Address for Notices. Any notice required to be
given and any other written communication between Supplier
shall be given as provided below:
If to Supplier:
Tangshan Cayman Heat and Power Company, Ltd.
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention:
Telephone: (000) 000-0000
Facsimile: (000)000-0000
with a copy to:
Pan-Western Energy, LLC
If to User:
Tangshan Panda Heat and Power Company, Ltd.
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention:
Telephone: (000) 000-0000
Facsimile: (000)000-0000
with a copy to:
Pan-Western Energy, LLC
9. Delay and Waiver. No delay or omission to exercise
any right, power or remedy accruing to Supplier or User
under this Agreement or on account of any breach or default
hereof shall impair any such right, power or remedy of the
other Party, nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring. Any
waiver, permit consent or approval of any kind or character
must be in writing and shall be effective only to the extent
specifically set forth in such writing.
10. Entire Agreement. This Agreement contains all the
terms and conditions finally agreed between Supplier and
User with respect to the subject matter hereof and any oral
negotiations or prior agreements of the Parties are hereby
merged with and into this final Agreement. This Agreement
may only be amended or modified by an instrument in writing
signed by both Supplier and User.
11. Governing Law. This Agreement shall be governed by and
be construed and interpreted in accordance with the Laws of
the [People's Republic of China].
12. Severability. In case if any one or more of the
provisions contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
13. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Supplier and User have caused this
Agreement to be duly executed by their officers, duly
authorized as of the day and year first above written.
USER: TANGSHAN PANDA HEAT AND POWER
COMPANY, LTD.
By:
Title:
Name:
SUPPLIER: TANGSHAN CAYMAN HEAT AND
POWER COMPANY, LTD.
By:
Title:
Name:
