10.4
OPERATING AGREEMENT
THIS JOINT OPERATING AGREEMENT is entered into effective as of the
12{th} day of September, 2000, by and between Americas Power Partners, Inc.
("APP") and Xxxxxxxxx Service, Inc. ("ASI").
RECITALS
WHEREAS, APP is a Colorado corporation, which is engaged in the
business of performing APP Services (as defined herein); and
WHEREAS, ASI is a Michigan Corporation, which is involved in the
business of performing ASI Services (as defined herein) ; and
WHEREAS, ASI and APP (herein referred to as "the Parties") desire and
intend to undertake joint efforts to market, analyze, own and operate
steam, compressed air, wastewater, electric power generation and related
utility systems projects so as to thereby create opportunities for each
party to increase its respective sales to industrial, institutional and
commercial end user customers; and
WHEREAS, ASI and APP desire to enter into this Joint Operating
Agreement in order to define the nature and scope of their business
relationship and to establish and set out the parameters of their joint
efforts and responsibilities for the implementation of a marketing
relationship for products and services to be provided jointly by APP and
ASI related to the Business Scope, as defined herein.
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained, the parties agree as follows:
ARTICLE 1
GENERAL TERMS
1.1 DEFINITIONS. The terms "ASI" and "APP" shall have the above meanings
and the following terms shall have the following meanings:
"AFFILIATE" shall mean, with respect to any Person: (i) any Person
directly or indirectly controlling, controlled by, or under common control
with such Person, (ii) any Person owning or controlling fifty one percent
(51%) or more of the outstanding voting interests of such Person, (iii) any
officer, director, or general partner of such Person, or (iv) any Person
who is an officer, director, general partner, trustee, or holder of fifty
one percent (51%) or more of the voting interests of any Person described
in clauses (i) through (iii) of this sentence. For purposes of this
definition, the term "controls," "is controlled by," or "is under common
control with" shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"AGREEMENT" means this Joint Operating Agreement, as from time to time
amended or supplemented.
"APP SERVICES" means the business of purchasing, owning, financing,
optimizing, monetizing and otherwise developing Utility Systems for End-
Users.
"ASI SERVICES" means the business of designing, selling, installing,
constructing, optimizing (including EPC Services and O&M Services on)
Utility Systems for End-Users, including related components and equipment.
"BUSINESS SCOPE" shall have the meaning as set forth in SECTION 2.2.
"CONFIDENTIAL INFORMATION" means all information to be disclosed by either
party to the other party which is confidential, proprietary or generally
not available to the public, including the information described in
SECTIONS 10.1 and 10.2, including confidential work product of ASI and/or
APP, but specifically excluding advertising and sales information materials
or other information prepared for an identified customer by a Party and
delivered either to an identified customer or to the other party for
delivery to an identified customer, which information is not subject to a
binding confidentiality agreement between ASI and/or APP and such
customer.
"END-USER" means industrial, commercial, and institutional customers and/or
prospective customers.
"ENTITY" shall mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust,
cooperative or association or any foreign trust or foreign business
organization.
"EPC SERVICES" shall mean engineering, procurement and construction
services related to Projects.
"MONETIZATION" shall mean the purchase of any Utility System Assets by the
Parties from an End-User.
"O&M SERVICES" shall mean operation and maintenance services related to
Projects.
"OPERATING COMPANY" shall mean an Entity formed by the Parties for the
purpose of purchasing, owning, optimizing, operating or maintaining Utility
System Assets associated with any Projects which are to be jointly
developed under the terms of this Agreement.
"OPTIMIZATION" shall mean the upgrading, modification, and/or constructing
of and End-User's Utility System Assets for the purpose of improving the
performance and efficiency of such assets, including the design and
installation of new and/or additional components and equipment for such
purposes.
"PARTY" shall mean either Americas Power Partners, Inc. or Xxxxxxxxx
Service, Inc.
"PERSON" shall mean a natural person or an Entity.
"PROJECT" shall mean projects for which the Parties or an Operating Company
formed by the Parties pursuant to the terms of this Agreement, have entered
into, or propose to enter into, a contract for the Optimization and/or
Monetization of Utility System Assets.
"REPRESENTATIVES" means a party's directors, employees, advisors, lenders
and representatives and such party's Affiliates' directors, employees,
advisors, lenders and representatives. Representatives shall not include
independent sales representatives for the products of Xxxxxxxxx
International, Inc. and/or Xxxxxxxxx Service, Inc. and its or their
affiliates.
"SERVICES" shall mean the Optimization and/or Monetization of Utility
System Assets and/or Utility Systems and the performance of O&M Services in
connection therewith.
"UTILITY SYSTEMS" shall mean steam, air, water, wastewater, electric power
generation, lighting and other utility systems of an End User.
"UTILITY SYSTEM ASSETS" shall mean the assets and equipment, including
components consisting of, or related Utility Systems.
1.2 SINGULAR AND PLURAL. Words used herein in the singular, where the
context so permits, also include the plural and vice versa. The
definitions of words in the singular herein, where the context so permits,
also apply to such words when used in the plural and vice versa.
ARTICLE 2
RELATIONSHIP OF PARTIES AND SCOPE OF BUSINESS
2.1 RELATIONSHIP OF THE PARTIES. APP and ASI have jointly pursued the
development of Projects. The Parties desire and intend to continue to
jointly pursue Projects and wish to define responsibilities, maximize
efficient use of resources and provide for the manner in which income will
be derived and/or profits will be shared by the Parties from any jointly
developed and successfully implemented Projects.
2.2 BUSINESS SCOPE. The business scope ("Business Scope"), which is the
subject of this Agreement, shall be: multi-year financed contracts to be
entered into by the Parties or an Operating Company formed by the Parties
pursuant to the terms of this Agreement for performance of the Services for
End Users. The Business Scope shall include the United States, but does
not include Projects in any territory or location where either APP or ASI
is subject to a legal and/or contractual restriction against any business
development or other activities in such territory.
2.3 USE OF APP/ASI NAMES, MARKS AND LOGOS. The Parties agree that as part
of their joint efforts to pursue, market and develop Projects and related
Services under the terms of this Agreement,
(a) APP shall have a non-exclusive, royalty-free license during the
term of this Agreement to use the name "Xxxxxxxxx Service" and/or
"Xxxxxxxxx" and shall further have the right to use service marks
and/or logos owned or otherwise held in the name of ASI. All names,
marks and logos held in the name of ASI, which may be used by APP
under authority granted herein, shall remain the sole and exclusive
property of ASI; and
(b) ASI shall have a non-exclusive, royalty-free license during the
term of this Agreement to use the name "Americas Power Partners"
and/or "Americas" and shall further have the right to use service
marks and/or logos owned or otherwise held in the name of APP. All
names, marks and logos held in the name of APP, which may be used
by ASI under authority granted herein, shall remain the sole and
exclusive property of APP.
The names, marks and logos of the parties may be used in combination with
those of the other. The rights granted under this SECTION 2.3 may not be
assigned or sublicensed to any third party. The rights granted herein
shall apply within the United States of America. Either Party may request
that the rights described herein be extended to other defined countries or
territories, which request shall not be unreasonably withheld.
Notwithstanding this Section or any other provision of this Agreement, each
Party may place reasonable restrictions and limitations on the use by the
other party of the Party's name, service marks or logos.
ARTICLE 3
RESPONSIBILITIES OF THE PARTIES
3.1 IDENTIFICATION OF PROJECT OPPORTUNITIES. APP and ASI will be jointly
responsible for marketing the products and Services to be provided by the
Parties, including all efforts to identify, locate, market and/or solicit
potential development and opportunities for Projects within the Business
Scope.
3.2 FINANCIAL ANALYSIS AND FINANCING OF PROJECT OPPORTUNITIES. APP
will
be primarily responsible for performing the APP Services, including the
financial analysis of any potential development Projects identified through
the joint or individual marketing efforts of the Parties. The analysis is
to be performed by APP based on information obtained from all available
sources in order to fully evaluate the required capital investment, the
potential return on investment, potential for savings to be shared by the
Parties and the End User, the ability to obtain required financing and
other issues related to the financial viability of the Project and the
advisability of pursuing the Project from a financial or investment
standpoint. APP will work to structure and obtain appropriate financing
for Projects which are to be further pursued and/or undertaken by the
Parties and be responsible for coordinating negotiations for (1) contracts
for required fuel supply and (2) a power purchase agreement for all
electricity, steam and other commodities related to such Projects.
3.3 PROJECT SERVICES AND PRODUCTS. Absent a specific agreement to
the contrary for a particular identified project, ASI will be the exclusive
provider of ASI Services on Projects. ASI will further be primarily
responsible for implementation of the Optimization and O&M Services for
Utility System Assets, including the oversight of the engineering and
implementation of all power generation development or upgrade projects.
Where appropriate and to the extent possible, ASI will supply
equipment/products for steam generation and related utility systems.
Appropriate contracts will be prepared and executed by the parties
outlining the specific EPC and O&M services to be provided by ASI. The
parties may enter into contracts with third party contractors for
additional services required for individual projects as may be determined
to be necessary and appropriate. ASI will be responsible for the payment
of costs of third party contractors or which it has engaged to fulfill its
responsibilities under this Agreement, or under applicable agreements with
Operating Companies, provided that major equipment purchases may require
financing by or through APP. APP will be responsible for the payment of
costs of development related services, including marketing, sales,
development/discovery engineering, financial and legal expenses. All
outside costs and expenses incurred by the Parties may be periodically
reviewed, analyzed and adjusted upon request of and by agreement of the
Parties.
ARTICLE 4
EXCLUSIVITY
4.1 EXCLUSIVITY AND NON-CIRCUMVENTION. During the term of this
Agreement, APP and ASI intend and agree to work jointly and exclusively to
market and develop Projects within the Business Scope, subject only to the
provisions of SECTION 4.2 hereof. APP and ASI shall each offer the other
the opportunity to participate to the extent set out in this Agreement in
every Project or potential Project within the Business Scope, except in
such situations as are hereinafter described in SECTION 4.2. The Parties
further intend and do hereby agree that all of the Parties' Affiliates and
their employees, agents or representative shall be bound by the terms of
exclusivity as set forth herein, subject only to the provisions of SECTION
4.2. Notwithstanding the terms of the Business Scope as defined in SECTION
2.2 and the geographical limitations therein, to the extent practical, ASI
shall treat APP as the preferred provider of APP Services and APP shall
treat ASI as the preferred provider of ASI Services in all international
territories or locations in which the Parties may be found to be doing
business.
4.2 EXCEPTIONS TO EXCLUSIVITY.
(a) The provisions of SECTION 4.1 shall not be interpreted in
any manner to require or obligate ASI to work exclusively with APP with
respect to: (i) potential or existing projects which fall outside the
Business Scope; (ii) projects on which ASI is invited or allowed to submit
bids or proposals for products or services to or for energy service
companies; or (iii) projects undertaken by ASI in which ASI has entered
into a legally binding agreement prior to the effective date of this
Agreement.
(b) The provisions of SECTION 4.1 shall not be interpreted in any
manner to require or obligate APP to work exclusively with ASI with respect
to (i) potential or existing projects which fall outside of the Business
Scope; (ii) projects on which APP is invited or allowed to submit bids or
proposals for products or services related exclusively to matters which are
outside the scope of ASI Services; or (iii) projects undertaken by APP in
which APP has entered into a legally binding agreement prior to the
effective date of this Agreement.
In the event that APP and ASI are not obligated to work exclusively
with each other under the terms of this SUBSECTION 4.2(A) OR (B), APP and
ASI may not use or disclose to any third party any work product previously
developed or provided by the other Party or any Confidential Information as
the case may be, in regard to the project in question.
ARTICLE 5
STEERING COMMITTEE
5.1 APP and ASI hereby establish a committee (the "Steering Committee")
for the purpose of managing and directing the joint pursuits of the Parties
under the terms of and consistent with the provisions of this Agreement.
The Steering Committee shall be composed of one or more representatives
(each a "Steering Committee Representative") from each Party; and each
party shall have the right to appoint an equal number of Representatives.
The first Representatives are:
Xxxxxxx X. Xxxxx
Xxxx Xxxxxxxx
Decisions requiring approval of the Steering Committee and functions to be
performed include: (i) analysis and evaluation of Projects and Project
opportunities, (ii) coordination of proposal preparation and business
development activities, (iii) any Project-specific profit-sharing
arrangements; and (iv) any other matter submitted to the Steering Committee
by either of the Parties for consideration/decision.
ARTICLE 6
OPERATING COMPANIES
6.1 OPERATING COMPANIES. APP and ASI may from time to time form and
establish Entities as are authorized by the laws of any individual State or
of the United States of America ("Operating Companies") which shall enter
into contracts with End Users to perform Services associated with
individual Projects which are to be developed jointly by the Parties.
6.2 MANAGEMENT OF OPERATING COMPANIES. Any Operating Company established
by the Parties as contemplated by this Agreement shall be managed jointly
by the Parties through their designated managers or representatives. All
appropriate agreements and documents will be prepared by the Parties to
establish the management structure and additional details for the operation
of any business Entity formed for the individual Projects undertaken by the
Parties.
6.3 CAPITAL CONTRIBUTIONS AND EQUITY OWNERSHIP. APP shall be responsible
for structuring appropriate financing as may be required for the
Monetization and/or Optimization of Utility Systems Assets for all Projects
to be pursued or undertaken by the Parties. Absent an agreement to the
contrary by the Parties, APP will provide all equity contributions, which
may be required for all future individual Projects and for the
capitalization of Operating Companies as may be established in accordance
with this ARTICLE 6. However, ASI will have the right to participate in
the ownership of each Project undertaken by the Parties. ASI may
contribute up to fifty percent (50%) of the required equity for each
individual Project and shall hold a corresponding ownership interest in the
Project and/or any Operating Company formed by the Parties for said
Project, in accordance with the terms of this Agreement. Prior to the
execution of the definitive agreements and related documents for each
individual Project undertaken by the Parties, ASI shall advise APP as to
whether it intends to contribute capital and take a corresponding equity
ownership interest in the Project and any Operating Company as may be
established in accordance with this ARTICLE 6. APP and ASI shall each hold
the right of first refusal for the purchase of the other Party's equity
position in the event of a sale of equity in a Project or Operating
Company.
ARTICLE 7
FINANCIAL, ACCOUNTING AND
ALLOCATION OF PROFITS
7.1 ACCOUNTING AND RECEIPT/DISTRIBUTION OF REVENUES. All financial,
accounting and related functions for Projects, including the administration
of customer bills for utilities and commodities, if applicable, shall be
performed by APP. All revenues derived from Services performed or products
provided pursuant to the terms of this Agreement by the Parties, or
payments in respect of a customer's utilities provided pursuant to any
contract or agreement entered into by any Operating Company formed pursuant
to this Agreement, shall be paid to and received by the Operating Company.
The financial statements of the Operating Companies will be consolidated
with the financial statements of APP. The Parties agree to prepare and
distribute with reasonable promptness financial statements and reports for
all Projects and/or Operating Companies, which reports shall be prepared in
accordance with generally accepted accounting principles on a monthly
basis.
7.2 PROJECT PROFIT ALLOCATION. The allocation and distribution of profits
and losses derived from the operations of the Parties under this Agreement
shall be determined and made in accordance with the provisions of the
attached EXHIBIT A.
7.3 OPEN BOOK. All Projects pursued and/or undertaken by APP and ASI
shall be on an "Open Book Basis", with both Parties allowed complete access
to all financial materials, records or reports which are in anyway related
to the Projects, Operating Companies, or related activities of the Parties.
ARTICLE 8
TERM AND TERMINATION
8.1 TERM. Except as otherwise provided herein, this Agreement remain in
effect until terminated in accordance with SECTION 8.2.
8.2 TERMINATION. This Agreement may be terminated upon the occurrence of
any of the following events:
(a) Either Party may terminate this Agreement upon providing six
months' written notice of termination to the other Party, said notice to be
delivered in accordance with the requirements of this Agreement; or
(b) Upon the occurrence of any default by a Party in:
(i) the payment of any fee or other payment obligation under this
Agreement, where such default remains unremedied for a period of
twenty (20) days after written notice of the default is given to the
defaulting party, provided that such written notice shall not be
required if a default under this subsection occurs more than one (1)
time in any calendar year; or
(ii) the non-performance of any covenant or agreement by such
party in this Agreement where such default continues unremedied for a
period of twenty (20) days after written notice thereof is given by
the non-defaulting party to the defaulting party.
The non-defaulting party may, at its sole option, by giving written notice
thereof to the defaulting party, terminate its obligations under this
Agreement, without in any way affecting the non-defaulting party's rights
under this Agreement.
(c) If any representation or warranty by a Party in this Agreement
proves to have been incorrect or misleading in any material respect as of
the date when made or deemed made, then the non-defaulting party may, at
its sole option, by giving written notice thereof to the defaulting party,
terminate its obligations under this Agreement, without in any way
affecting the non-defaulting party's rights under this Agreement; or
(d) If a Party is generally unable to pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors;
or any proceeding shall be instituted by or against a party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property then the other party may
terminate this Agreement.
8.3 EFFECT OF TERMINATION. In the event of termination of this Agreement,
the obligations and rights of the Parties incurred pursuant to any
provision of this Agreement, or by virtue of any contract entered into by
the Parties for Project Services or materials undertaken jointly by the
Parties, shall continue in full force and effect until such obligations
have been fulfilled, and the rights and obligations of the Parties pursuant
to ARTICLES 10, 13 AND 15 shall additionally survive termination.
ARTICLE 9
WITHDRAWAL
9.1 WITHDRAWAL FROM A PROJECT. With respect to any particular transaction
involving a Project, either Party may notify the other of its desire not to
proceed with the development of such Project; provided, that (i) an
election by either Party to withdraw from a Project shall not affect the
rights of the other Party to proceed with such Project, (ii) neither Party
may withdraw from a project during the period between the submission of a
proposal to an End-User and the earlier of the date that the proposal
expires by its own terms or the date upon which an agreement with the
customer is executed in respect of such Project unless the End-User
consents to such withdrawal and the proposal is otherwise not adversely
affected, and (iii) after the execution of an agreement with the customer,
the Party desiring to withdraw receives the consent of the End-User in
accordance with any instructions for the bidders provided by the End-User
(to the extent required and otherwise does so in compliance with the
applicable agreements) and provided that such withdrawal does not adversely
affect the ability of the non-withdrawing Party to continue with the
Project. Any Party, which elects to withdraw in compliance with the terms
of this SECTION 9.1, will be released from any liability or obligation
under this Agreement with respect to the relevant Project accruing from the
date of withdrawal. If the written notice of withdrawal is given
subsequent to the posting by the Parties of any bid bond or other bid
security as required in connection with the proposal process, then the
withdrawing Party shall indemnify (excluding lost profits, lost revenues,
indirect, special or consequential damages) the other Party from any
liability resulting from the forfeiture of such bid bond or other bid
security caused by the withdrawing Party's decision to withdraw. If any
Party determines to withdraw from any Project, such Party agrees that it
shall use its reasonable efforts to withdraw from such Project in a manner
that permits the non-withdrawing Party to continue the proposal process for
such Project and causes the least harm possible to the non-withdrawing
Party, provided that the withdrawing Party shall not be required to expend
any further funds or incur additional liabilities to do so.
9.2 EXCLUSIVITY UPON WITHDRAWAL. Notwithstanding anything herein to the
contrary, the withdrawing Party shall be prohibited from participating in
or pursuing any Project alone with any other person or entity.
ARTICLE 10
CONFIDENTIALITY
10.1 ASI DISCLOSURES. ASI may disclose various information to APP
including: (a) information regarding the ASI products, services and
systems, the identity of potential and existing customers and contacts and
such other information as may be reasonably required to implement the joint
marketing and servicing efforts of the Parties as contemplated by this
Agreement.
10.2 APP DISCLOSURES. APP may disclose various information to ASI
including: (a) information regarding the strategies and services to be
provided by APP, the identity of potential and existing customers and
contacts, and such other information as may be reasonably required to
implement the joint marketing and servicing efforts of the Parties as
contemplated by this Agreement.
10.3 CONFIDENTIAL TREATMENT. Neither APP nor ASI shall disclose the other
Party's Confidential Information without the other Party's prior written
consent: PROVIDED, HOWEVER, a Party may disclose:
(a) any of the other Party's Confidential Information to
a Party's Representative, who needs to know and agrees to maintain
the confidentiality of such Confidential Information in accordance
with the terms hereof; and
(b) any of the other Party's Confidential Information that: (i)
becomes generally available to the public; (ii) is already known to
the Party at the time of disclosure by the other Party; (iii) is
acquired from a third party not known by the receiving Party to be
prohibited from making disclosure; or (iv) is required to be
disclosed to comply with any applicable law, order, regulation or
ruling.
10.4 RETURN OF CONFIDENTIAL INFORMATION. Upon a Party's request, the other
Party shall destroy all written Confidential Information of the requesting
Party, except for that portion of such Confidential Information that may be
found in analyses, compilations, studies or other documents prepared by, or
for, the non-requesting Party, and the non-requesting Party and its
Representatives shall not retain any copies of such written Confidential
Information. The portion of written Confidential Information that may be
found in analyses, compilations, studies or other documents prepared by, or
for, the returning party, any oral Confidential Information furnished by
the requesting Party not requested to be destroyed, will be held by the
non-requesting Party and kept subject to the terms of this Agreement.
10.5 LIABILITY FOR REPRESENTATIVES. A Party shall be held liable for any
breach by any of its Representatives of the provisions of this ARTICLE 10.
ARTICLE 11
EMPLOYEES OF THE PARTIES
11.1 NON-SOLICITATION OF EMPLOYEES. During the term of this Agreement and
continuing for one (1) year thereafter, each Party agrees not to solicit or
hire employees of the other Party unless the Party which is the current
employer of the employee in question has consented in writing thereto.
11.2 COSTS OF CERTAIN EMPLOYEES ENGAGED IN BUSINESS DEVELOPMENT. APP shall
reimburse ASI for the costs associated with certain ASI employees
(including salary, benefits and travel costs) during the term of this
Agreement. Such employees shall remain the employees of ASI, but shall
work exclusively on marketing and development of Projects to be pursued
jointly by ASI and APP. All such employees shall be identified and agreed
to by the Parties in writing. All such employees shall be subject to review
by the Parties no less frequently than on an annual basis, and each such
employee's assignment to work on ASI/APP marketing and business development
(with reimbursement by APP) hereunder shall be discontinued if the employee
does not perform to the satisfaction of both ASI and APP. In the case
where an employee's assignment is discontinued hereunder, the Parties shall
agree upon a replacement. No employees whose costs are reimbursed under
this Section 11.2 shall be used to conduct marketing or other activities in
territories or areas where either ASI or APP are under legal and/or
contractual restriction against conducting such marketing or other
activities.
ARTICLE 12
NOTICES
12.1 NOTICES TO THE PARTIES. All notices or other communications hereunder
shall be in writing and shall be delivered either personally, by facsimile
means (delivered during the recipient's regular business hours), by
registered or certified mail (postage prepaid and return receipt
requested), or by express courier or delivery service, addressed as
follows:
If to Americas Power Partners Inc.:
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Phone No.: (000) 000-0000
FAX No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
WITH A COPY TO:
000 X. Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
IF TO XXXXXXXXX SERVICE, INC.:
0000 Xxxx Xxxxx Xxxx.
Xxxxxx, Xxxxxxx 00000
Phone No.: (000) 000-0000
FAX No.: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxx, and J. Xxxxxx Xxxxxx
WITH A COPY TO:
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Or at such other address and number as any Party shall have previously
designated by written notice given to the other Party in the manner
hereinabove set forth. Notices shall be deemed given when received, if
sent by facsimile means (confirmation of such receipt by confirmed
facsimile transmission being deemed receipt of communications sent by
facsimile means), and when delivered and receipted for (or upon the date of
attempted delivery where delivery is refused), if hand-delivered, sent by
express courier or delivery service, or sent by certified or registered
mail.
ARTICLE 13
INDEMNIFICATION
13.1 RECIPROCAL GENERAL INDEMNIFICATION. Each Party, respectively, as
indemnitor, will indemnify, defend and hold harmless the other Party and
its officers, directors, employees, Affiliates, agents and assigns, as
indemnitees, from and against any and all losses, liabilities, damages,
demands, claims, actions, judgments or causes of action, assessments, costs
and expenses, including, without limitation, interest, penalties and
reasonable attorneys' and accountants' fees, but excluding amounts
described in SECTION 15.3 hereof (herein referred to collectively as
"Losses") asserted against, resulting to, imposed upon or incurred or
suffered by any such indemnitee as a result of, based upon or arising from,
the failure by the indemnitor or its respective agents or employees to
comply with any applicable Law, rule, or regulation of any authority having
proper jurisdiction, or the breach or nonfulfillment of any of the
representations, covenants or agreements made by the indemnitor pursuant to
this Agreement, excepting only such Losses as may be caused by the
negligence or misconduct of any indemnitee or its respective agents or
employees.
ARTICLE 14
INSURANCE
14.1 INSURANCE. Each of ASI and APP shall procure and maintain such
policies of liability and property insurance as shall be reasonable and
customary for companies and business activities of the nature and scope
contemplated herein. Each Party agrees to provide information and
certificates to the other from time to time to confirm compliance with this
Section.
14.2 WAIVER OF SUBROGATION. ASI and APP agree that all policies of
insurance procured hereunder shall contain waivers of subrogation, provided
that neither Party shall be deemed to have waived subrogation in any case
where the other Party has not complied with the requirements of procuring
and maintaining coverage pursuant to SECTION 14.1.
ARTICLE 15
DISPUTE RESOLUTION
15.1 BY THE PARTIES. In the event of any conflict or dispute between
the Parties to this Agreement, which dispute is not resolved within thirty
(30) days, then each Party agrees to submit the dispute to the highest
ranking executive officer of the respective Parties.
15.2 ARBITRATION If any dispute is not resolved between the executive
officers as indicated in SECTION 15.1 above within sixty (60) days from the
date on which the executive officers began to attempt to resolve such
dispute, then the dispute shall be determined by arbitration pursuant to
the rules, then in effect, of the American Arbitration Association upon the
initiation of either Party, and shall be settled and finally determined by
an arbitrator mutually acceptable to both Parties. If the Parties are
unable to agree upon a single arbitrator, each Party, at its own cost and
upon notice to the other Party, shall appoint one arbitrator. If a Party
does not appoint an arbitrator within ten (10) Business Days after the
other Party has given notice of the name of its appointed arbitrator, the
single arbitrator first appointed shall be the sole arbitrator, and that
arbitrator's decision shall be binding upon both Parties. If two
arbitrators are appointed, they shall appoint a third arbitrator, and the
three shall resolve the question. The appointment of the third arbitrator
shall be made within ten (10) Business Days following the appointment of
the first two arbitrators. If the two arbitrators first appointed cannot
agree upon a third, that third arbitrator shall be chosen by the Chief
Judge or highest ranking judge of the Superior Court for the judicial
district or circuit comprising or including Wilmington, Delaware. The
written decision of any two of the arbitrators so appointed shall be
binding and conclusive on the Parties hereto and enforceable in any court
of competent jurisdiction. Each of the Parties shall bear one-half of the
cost of appointing the third arbitrator, and of paying the third
arbitrator's fee. Such arbitration shall be conducted in Wilmington,
Delaware.
15.3 LIMITATION ON LIABILITY. Notwithstanding anything to the
contrary herein contained, neither Party shall be liable to the other,
whether in contract, in tort, or otherwise, for any special, punitive,
exemplary, indirect, incidental or consequential damages whatsoever,
including but not limited to, loss of profits, business interruptions and
claims of customers or other third parties, for any reason whatsoever.
ARTICLE 16
MISCELLANEOUS PROVISIONS
16.1 NO PARTNERSHIP/JOINT VENTURE CREATED. The Parties hereto acknowledge
and agree that this Agreement and the activities and projects to be pursued
hereunder do not constitute a Party being an agent, partner, joint venturer
or legal representative of the other Party for any purpose whatsoever. The
Parties hereto further acknowledge and agree that a Party is not authorized
to assume or create any obligation, liability or responsibility, express or
implied, or to execute any document or instrument on behalf of, or in the
name of the other Party or to bind the other Party in any manner, without
such Party's prior written consent. The Parties hereto also acknowledge
and agree that the relationship intended by this Agreement is that of
independent contractors and not just of representatives, partners, or joint
venturers.
16.2 AMENDMENTS AND WAIVERS. No amendment, waiver, modification or change
of this Agreement shall be enforceable unless in writing signed by both
Parties hereto.
16.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon APP and
ASI, and their respective successors and assigns. This Agreement shall not
be assignable by either Party hereto except with the prior written consent
of the other Party, which consent shall not be unreasonably withheld. Any
such assignment shall not relieve the assigning Party of its obligation
hereunder.
16.4 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Party hereby agrees to
execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to comply
with any laws, rules or regulations.
16.5 CONSTRUCTION. Whenever the singular number is used in this Agreement
and when required by the context, the same shall include the plural and
vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa.
16.6 AUDIT RIGHTS. APP and ASI shall keep accurate books and records in
accordance with the generally accepted accounting principles consistently
applied to all costs and expenses incurred in connection with this
Agreement (and to be included in the calculation of profit for each
project) and the performance of their respective obligations hereunder and
shall, to the extent available, obtain receipts for all expenditures in
connection with such costs and expenses. The Parties shall have the right
at reasonable times and with reasonable notice, to examine the books and
records of the other relating to revenues and expenses included in the
calculation of Project profit.
16.7 INVALIDITY. In the event that any of the provisions contained in this
Agreement shall be held unenforceable in any respect, such unenforceability
shall not affect any other provision of this Agreement.
16.8 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between APP and ASI and supersedes all prior agreements and
understandings relating to the subject matter hereof.
16.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE SUBSTANTIVE LAW
OF THE
STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
16.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the Parties hereto, by their respective duly authorized
Representatives, have executed this Agreement effective as of the date
first above written.
AMERICAS POWER PARTNERS, INC. XXXXXXXXX SERVICE, INC.
By:____________________________ By: ___________________________
Name: _________________________ Name: _______________________
Title: __________________________ Title: _________________________
EXHIBIT A
PROJECT PROFIT ALLOWCATION
(Section 7.2)
It is the intention of the Parties that insofar as possible and unless
otherwise agreed in writing, project revenues and profits shall be
allocated and distributed to the parties such that:
(i) Each of ASI and APP shall receive compensation for their
respective roles (including, without limitation, ASI's role
in providing EOPC and O&M Services, APP's role in providing
project financing and administration, as well as the roles
of both parties in project development) in order to cover
costs and provide reasonable profits and/or returns to both
parties for such efforts at market rates; and
(ii) Remaining profits after payment of the compensation in
paragraph (a) shall be shared equally between ASI and APP.
Profits and losses will be determined and allocated to the Parties on an
individual Project basis. All Project accounting will be performed on an
open book basis.
