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EXHIBIT 10.25
SHARED SAVINGS
THIS ENERGY SERVICE AGREEMENT (hereinafter, "Agreement") is made and entered
into as of The 20 day of December, 1999, by and between, WISCONSIN POWER & LIGHT
COMPANY, having its principal offices at X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxx
00000-0000 (hereinafter, "Utility"), and PENDA CORPORATION, a FLORIDA
corporation having its principal offices at Portage, Wisconsin (hereinafter,
"Client"), relating to property owned by Client at 0000 XXXXXXXXX XXX., XXXXXXX,
Xxxxxxxxx, 00000 (hereinafter, "Premises", which are more particularly described
in Part I of Schedule A attached hereto).
IT IS AGREED AS FOLLOWS:
SECTION 1. PURPOSES OF AGREEMENT
The purposes of this Agreement and the actions of the parties in pursuit thereof
are:
a. To accurately identify and agree upon certain baseline
information concerning the energy consumption characteristics
of the Premises (hereinafter, "Baseline Energy Consumption");
b. To designate certain equipment (hereinafter, "Equipment")
which, installed on the Premises in lieu of Equipment
formerly used by Client, is estimated by Utility to reduce
Client's annual energy consumption below Baseline Energy
Consumption ("Energy Savings") thereby providing an estimated
level of savings to Client; and
C. To set forth the obligation of the Utility to fund the
acquisition and installation of the Equipment in exchange for
the promise by client to share a portion of the value of the
Energy Savings ("Shared Savings") with Utility by paying such
amount to Utility along with payment of Client's regular xxxx
for utility service.
SECTION 2. BASELINE ENERGY CONSUMPTION
Client and Utility have to their mutual satisfaction analyzed the historic and
present operating practices of Client (hereinafter, "Baseline Operating
Practices") and the corresponding energy consumption characteristics of the
Premises and agree that the Baseline Energy Consumption on all (or a specified
portion, as the case may be) of the Premises for the purposes of this Agreement
shall be as set forth in Part 11 of Schedule A. The parties intend that such
Baseline Energy Consumption shall be conclusive and, except for material error
or misrepresentation with respect to the Baseline Operating Practices, each
hereby waives any objections to same, whether now existing or hereafter arising.
SECTION 3. EQUIPMENT PURCHASE, INSTALLATION, OPERATION AND MAINTENANCE
Within a reasonable period of time after the execution of this Agreement:
a. Client has purchased the Equipment specified in Part I of
Schedule B hereof and arranged for installation of the
Equipment at the Premises.
b. Client shall be responsible for obtaining all governmental
permits, consents and authorizations necessary for
installation of the Equipment, and Utility shall use its best
efforts to assist Client in obtaining such permits, consents
and authorizations.
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As part of the initial installation and continuing thereafter, Client shall
provide Utility with mutually satisfactory access to the Premises for the
inspection of the Equipment, and with free and reasonable access to lights,
heat, power, water, and the like necessary for such inspection and any
associated submetering.
Client shall have exclusive responsibility for the operation and maintenance of
the Equipment in accordance with all manufacturer specifications and
recommendations and with such additional standards and procedures as may be set
forth in Part 11 of Schedule B. All costs and expenses incurred in connection
with the operation and maintenance of the Equipment shall be the sole
responsibility of Client. Client shall be solely responsible for enforcing any
manufacturer's warranties which accompany the Equipment and shall enforce such
warranties on its own or upon Utility's request.
SECTION 4. RISK OF LOSS
Client hereby assumes all risks of loss or damage to the Equipment while such
Equipment is in their care, custody or control. Client shall notify Utility
within 10 days of any loss or damage to the Equipment and shall keep Utility
informed of all developments regarding insurance rights and recoveries. Should
the Equipment be deemed a total loss or Client decides not to complete repairs,
Client shall to pay to Utility the Termination Value specified in Schedule C
hereto.
SECTION 5. INSURANCE
The Client shall provide, maintain, and pay for commercial general liability
insurance with limits of at least $1,000,000 per occurrence so as to comply with
Section 14. Indemnification. Client shall also provide, maintain, and pay for
all risk property insurance with a minimum limit of the Termination Value of
this Agreement as specified in Schedule C hereto. In the event of any loss or
damage to the Equipment, the proceeds of insurance covering the Equipment shall
be applied toward the replacement, restoration, or repair of the Equipment in
accordance with Section 4. Risk of Loss. This insurance must be in effect from
the time that the first item of Equipment is delivered to the Client until the
end of the term. Each policy must contain the insurer's agreement to give thirty
(30) days written notice to Utility before cancellation or non-renewal of the
required insurance.
The Client agrees to provide certificates of insurance as evidence of the
required coverage to Utility. Failure of Utility to enforce the minimum
insurance requirements listed above shall not relieve Client of responsibility
for maintaining these coverages.
SECTION 6. DISCLAIMER OF WARRANTIES
UTILITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING
THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, AND SPECIFICALLY DISCLAIMS ANY
AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 7. COMMENCEMENT DATE AND TERM
The "Commencement Date" shall be the first day of the first Billing Period
beginning after the date of this Agreement. The "Term" of this Agreement shall
begin on the date set forth on page one hereof and shall run continuously from
such date (unless this Agreement shall have been terminated by the parties at an
earlier date pursuant to the terms hereof) until the fifth (5th) anniversary of
the Commencement Date.
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"Billing Period" shall mean any period of approximately one month's duration
coincident with the normal billing cycle between Utility and Client, and "Annual
Billing Period" shall mean a series of twelve (12) consecutive Billing Periods,
the first of which shall begin with the Billing Period which first begins on or
after the Commencement Date.
SECTION 8. COMPENSATION AND BILLING
Client agrees to pay Utility an amount equal to seventeen thousand one hundred
sixty dollars ( $17,160) in each Billing Period during the Term of this
Agreement following the Commencement Date, for a total of sixty (60) billing
periods. The foregoing amount (the "Shared Savings") reflects a sharing by
Client of the value of the Energy Savings estimated to be realized from the
operation and use of the Equipment at the Premises as outlined in Schedule D
with the present energy charge in effect under Utility's applicable Rate
Schedule. The foregoing amount (the "Bright Ideas" labeled on xxxx) shall appear
as a separate line item on Client's xxxx from Utility during each Billing
Period, and shall be payable by Client upon the same terms and conditions as are
applicable to the normal utility xxxx. The foregoing amount shall not vary due
to change in Utility's rates, returns, or charges authorized by the Public
Service Commission of Wisconsin. The foregoing amount is based upon an estimated
cost for purchase and installation of the Equipment and will be modified by
amendment to this Agreement to reflect the actual cost of such purchase and
installation upon completion thereof.
The above monthly amount of seventeen thousand one hundred
sixty dollars ($17,160) represents the principal amount of the
Shared Savings plus simple interest at 3.0% per annum in
arrears. The principal amount of the Shared Savings may be
prepaid in whole or in part at any time without penalty. If the
principal amount of the Shared Savings is prepaid in part, then
the monthly amount to be paid will be recalculated over the
balance of the Term of this Agreement.
SECTION 9. CONDITIONS BEYOND CONTROL OF UTILITY
If Utility shall be unable to carry out any of its obligations under this
Agreement due to events beyond its control, including, without limitation, acts
of God, governmental or judicial authority, insurrections, riots, labor
disputes, labor or material shortages, fires, explosions, or floods, this
Agreement shall remain in effect but Utility's obligations shall be suspended
until the uncontrollable event terminates.
SECTION 10. REMEDIES UPON DEFAULT BY CLIENT
a. Utility's Remedies. In the event Client fails to pay Utility
its compensation when due, or any other Event of Default by
Client occurs, (defined as a failure by Client to timely
perform any of its obligations under this Agreement), Utility
may, without an election of remedies:
1) disconnect all electric service to the Premises in
accordance with the rules and regulations of the
Utility as approved by the Public Service Commission
of Wisconsin and in effect at the time of breach;
and
2) declare the Termination Value specified in Schedule
C immediately due and payable from Client and
exercise all remedies available at law or at equity
or
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other appropriate proceedings including bringing an
action or actions from time to time for recovery of
amounts due and unpaid by Client, and/or for damages
which shall include all costs and expenses
reasonably incurred in exercise of its remedy
(including reasonable attorney's fees), and/or for
specific performance; or
3) without recourse to legal process, terminate this
Agreement by delivery of a notice declaring
termination, whereupon Utility may enter the
Premises and dismantle and/or remove the Equipment
from the Premises, without liability in any suit,
action or other proceeding to Client or Lessor of
Premises, if any, on account of such actions.
b. Liquidated Damages. In the event Utility terminates this
Agreement due to an Event of Default, at Utility's request
Client shall pay to Utility, as liquidated damages, the
Termination Value set forth in Schedule C, plus all costs and
expenses reasonably incurred in exercise of its remedy,
including reasonable attorney's fees.
C. Termination. Utility may terminate this Agreement and declare
the Termination Value specified in Schedule C immediately due
and payable should:
1) Client cease use of the Equipment or the conduct of
commercial operations at the premises, or
2) any creditor of Client commence legal proceedings
against Client involving any debt or obligation of
Client for which the Equipment is pledged as
collateral, or
3) Client commence or have commenced against it any
proceedings in bankruptcy, receivership or
insolvency or make any assignment for the benefit of
its creditors, or
4) Client cease to take or receive electric and/or
natural gas service from Utility.
SECTION 11. REMEDIES UPON DEFAULT BY UTILITY
In the event of material default by Utility, Client shall have the following
remedy:
a. Terminate this Agreement by delivery of a Notice declaring
termination, and paying the Termination Value indicated in
Schedule C (less the cost of any future maintenance and
energy related services included therein, as agreed to by
the parties), whereupon Utility shall have no further
rights, obligations or claims under this Agreement.
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Client may terminate this agreement by paying the Termination Value indicated
in Schedule C.
SECTION 12. ARBITRATION
Except as otherwise provided herein, any dispute, controversy or claim arising
out of or in connection with or relating to this Agreement, upon the request of
either Client or Utility, shall be submitted to and settled by arbitration at
the locality where the Premises are situated in conformance with rules of the
American Arbitration Association then in effect. Any award rendered shall be
final and conclusive upon the parties and a judgment thereon may be entered in a
court of any forum, state or federal, having jurisdiction. The expenses of the
arbitration shall be borne equally by the parties to the arbitration, provided
that each party shall pay for and bear the cost of its own experts, evidence and
counsel. This Section 12 does not apply and shall not limit Utility's rights to
seek redress in any forum in the event Utility seeks to invoke any of the
provisions of Section 10 herein.
SECTION 13. ASSIGNMENT
Utility may (a) transfer or assign all or any part of its rights and obligations
herein to any party, (b) pledge its rights hereunder to its creditors, or (c)
utilize contractors and subcontractors, provided that any assignee or transferee
agrees to honor the terms of this Agreement. Unless otherwise approved in
writing, Client may not transfer or assign this Agreement and its rights and
obligations herein. If such assignment is permitted, Client shall condition
assignment on assignee assuming in writing all of Client's rights and
obligations under this Agreement.
SECTION 14. INDEMNIFICATION
Client agrees to indemnify, defend and hold Utility harmless from any and all
claims, actions, costs, expenses, damages and liabilities, including reasonable
attorney's fees, and claims of third parties arising out of, connected with or
resulting from Client's operation, installation, use, maintenance or repair of
the Equipment, or from the negligence or misconduct of its employees or other
agents in connection with their activities within the scope of this Agreement.
However, Client shall not be obligated to indemnify Utility against claims,
damages, expenses or liabilities solely to the extent such claims, damages,
expenses or liabilities directly result from the negligence or willful
misconduct of Utility or its employees or agents. The duty to indemnify will
continue in full force and effect notwithstanding the expiration or early
termination of this Agreement with respect to any claims based on facts or
conditions which occurred prior to termination.
SECTION 15. MISCELLANEOUS
a. This Agreement shall be governed by and
interpreted pursuant to the laws of the state of
Wisconsin without regard to its conflict of law's
provisions.
b. This Agreement constitutes the entire
understanding and agreement between the parties, and
supersedes any and all prior representations and
agreements, whether written or oral between the
parties as to the subject matter hereof. No wavier,
alteration, consent or modification of any of the
provisions of this Agreement shall be binding unless
in writing and signed by a duly authorized
representative of all parties hereto bound.
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IN WITNESS WHEREOF and intending to be legally bound, the parties hereto
subscribe their names to this instrument on the date first above written.
ATTEST: WISCONSIN POWER & LIGHT COMPANY
/s/ Xxxx Mierdirk By /s/ Xxxxx Xxxx
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Title Account Manager
ATTEST: PENDA CORPORATION
/s/ Xxxxxx Xxxxxxxx By /s/ Xxx X. Xxxxx
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Title VP & CFO
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SCHEDULE A
PENDA CORPORATION
DESCRIPTION OF PREMISES
PART I
DESCRIPTION
CITY OF PORTAGE PARCELS 2521 & 2536; COUNTY TAX ID #11271 CP02521.8 XXX 0 XX XX
X.0X. 00000000 R331-303 R471-440; COUNTY TAX ID # 11271 CP02536 PRT XX 000 &
000, XXX 0 XX X.0X. 115 & 1123 EASE EXC R67-322 R 262 - 702
PART II
ENERGY CONSUMPTION CHARACTERISTICS
Historical Energy Consumption and Facility Operation
Floor area of facility: 300,000 s.f.
PERIOD #1 PERIOD #2
01/01/98 - 12/31/98
ELECTRIC
AVERAGE DEMAND (KW) 6,746 0
INTERRUPT DEMAND (KW) 4,500 0
ON-PEAK ENERGY (kWh) 16,956,578 0
OFF-PEAK ENERGY (kWh) 23,574,622 0
NATURAL GAS
ENERGY (THERMS) 28,000 0
OTHER FUELS
OTHER FUEL 1 0 0
OTHER FUEL 2 0 0
FACILITY OPERATION
HOURS OF OPERATION 8,500 0
HEATING DEGREE DAYS 0 0
% OCCUPANCY 0 0
PRODUCTION (UNITS/YEAR) 0 0
PRODUCTION (UNITS/YEAR) 0 0
PRODUCTION (UNITS/YEAR) 0 0
COMMENTS:
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SCHEDULE B
PENDA CORPORATION
PART I
EQUIPMENT
Item Description Manufacturer Model Number Quantity
1. #12 THERMOFORMER XXXXX S/N 13757. R-244 1
2. #13 THERMOFORMER XXXXX S/N 13878 R-244-E 1
3. #4 THERMOFORMER XXXXX S/N 11164 R-244 1
PART 11
ADDITIONAL STANDARDS AND PROCEDURES
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SCHEDULE C
PENDA CORPORATION
TERMINATION VALUES
Billing Billing Billing
Period Value Period Value Period Value
1 955,000.00 21 652,426.68 41 334,359.94
2 940,227.50 22 636,897.75 42 318,035.84
3 925,418.07 23 621,329.99 43 301,670.93
4 910,571.62 24 605,723.31 44 285,265.11
5 895,688.05 25 590,077.62 45 268,818.27
6 880,767.27 26 574,392.81 46 252,330.32
7 865,809.19 27 558,668.79 47 235,801.15
8 850,813.71 28 542,905.46 48 219,230.65
9 835,780.74 29 527,102.72 49 202,618.73
10 820,710.19 30 511,260.48 50 185,965.28
11 805,601.97 31 495,378.63 51 169,270.19
12 790,455.97 32 479,457.08 52 152,533.37
13 775,272.11 33 463,495.72 53 135,754.70
14 760,050.29 34 447,494.46 54 118,934.09
15 744,790.42 35 431,453.20 55 102,071.43
16 729,492.40 36 415,371.83 56 85,166.61
17 714,156.13 37 399,250.26 57 68,219.53
18 698,781.52 38 383,088.39 58 51,230.08
19 683,368.47 39 366,886.11 59 34,198.16
20 667,916.89 40 350,643.33 60 17,160.00
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SCHEDULE D
PENDA CORPORATION
CONTRACT: THERMOFORMER 12, 13, 4
This contract includes the following projects:
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CUSTOMER's GROSS ANNUAL Project
SAVINGS Cost ($)
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PROJECT Xxxx KW kWh Therms $
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EFFICIENT THERMOFORMER 12 178.00 1,260,193 28,578 73,399 911,000
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EFFICIENT THERMOFORMER 13 178.00 1,260,193 28,578 73,399 911,000
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THERMOFORMER 4 ELE. UPGRAD 80.00 120,000 0 12,435 12,000
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TOTAL 436.00 2,640,386 57,156 159,233 1,834,000
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CONSENT
Dated as of December 27, 1999
The undersigned, Tri-Glas Corporation, an Alabama corporation, as
Guarantor under the Subsidiaries Guaranty dated July 15, 1995 (the "Guaranty")
in favor of the Agent, for its benefit and the benefit of the Lenders Parties
party to the Credit Agreement referred to in the foregoing Amendment, hereby
consents to such Amendment and hereby confirms and agrees that (a)
notwithstanding the effectiveness of such Amendment, the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed
in all respects, except that, on and after the effectiveness of such Amendment,
each reference in the Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Credit
Agreement, as amended by such Amendment, and (b) the Collateral Documents to
which such Grantor is a party and all of the Collateral described therein do,
and shall continue to, secure the payment of all of the Secured Obligations
(in each case, as defined therein).
TRI-GLAS CORPORATION
By /s/ Xxxxxx Xxxxxxxx
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Title: Vice President
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