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Exhibit
ITEM 21 - 4f
MATERIAL CONTRACTS
Automated Power Exchange Service Agreement
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AUTOMATED POWER EXCHANGE
SERVICE AND PARTICIPATION AGREEMENT
THIS AUTOMATED POWER EXCUANGE SERVICE AND PARTICIPATION AGREEMENT ("Service
Agreement") is made and entered into this 9th day of March, 1998 by and between
Automated Power Exchange, Inc., a California corporation ("APX"), and
PowerSource Corp., a Nevada Corporation ("Participant"). APX and the Participant
are sometimes referred to herein individually as a "Party" and collectively as
the "Parties."
WREREAS:
A. APX operates information exchanges in which Participants are able to buy
and sell electricity at APX Market Prices.
B. APX also serves as a Scheduling Coordinator with the California
Independent System Operator Corporation for Generating Units and Loads that are
registered with APX by Participants.
C. The Participant desires to enter into this Service Agreement in order to
be able to utilize the APX Services from time to time in accordance with the
terms hereof.
NOW, TREREFORE, in consideration of the covenants and conditions set forth
herein, the Parties agree and intend to be bound as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions. Except as otherwise defined herein, initially capitalized
terms used in this Service Agreement have the meanings set forth in Section 2.1
of the Automated Power Exchange Terms and Conditions of Service, together with
any appendices or attachments thereto, as amended or modified from time to time
("APX Terms").
1.2. Interpretation. The rules of interpretation set forth in Section 2.2
of the APX Terms shall apply to this Service Agreement.
2. USE OF APX SERVICES
2.1. Upon execution of this Service Agreement and satisfaction of the
conditions of eligibility set forth in Section 3 of the APX Terms, the
Participant shall be eligible to use the APX Services.
2.2. This Service Agreement does not obligate the Participant to use any
APX Service. 3. TERMS AND CONDITIONS OF SERVICE
3.1. The APX Terms are incorporated herein and made a part of this Service
Agreement.
3.2. APX and the Participant agree that:
3.2.1. The APX Terms, this Service Agreement, and any rules, regulations or
orders duly promulgated from time to time by APX shall govern the Participant's
use of any APX Service;
3.2.2. APX and the Participant will abide by the APX Terms and any rules,
regulations and orders duly promulgated by APX in respect of all matters
relating to the Participant's use of any APX Service; and
3.2.3. The Participant's eligibility to use the APX Services is at all
times subject to the APX Terms and any rules, regulations and orders duly
promulgated by APX, and may be revoked in accordance with the APX Terms.
3.3. APX may amend or modify the APX Terms from time to time in accordance
with the procedures set forth in Section 13 of the APX Terms. Any such amendment
or modification shall be binding upon the Participant in accordance with Section
13 of the APX Terms.
4. TERM AND TERMINATION
4.1. This Service Agreement shall become effective on the date set forth in
the introductory paragraph and shall remain in effect unless terminated in
accordance with the provisions set forth in Section 15 of the APX Terms.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each Party represents and warrants to the other Party the following:
5.1.1. Authority. The execution, delivery and performance by each Party of this
Service Agreement are within the Patty's powers, have been duly authorized by
all necessary corporate or other action, and do not and will not violate the
terms or conditions in the Party's governing documents, any material contract to
which the Xxxxx is a party, or any applicable Laws.
5.1.2. Binding Obligations. This Service Agreement constitutes the legal,
valid and binding obligations of each Party, enforceable against the Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
6. TRANSFER AND ASSIGNMENT.
6.1. Neither Party shall assign any of its rights nor delegate any of its
obligations under this Service Agreement without the prior written consent of
the other Xxxxx, which consent shall not be withheld or delayed unreasonably.
Any prohibited assignment or delegation shall be void.
7. ELECTRONIC CONTRACTING
7.1. All submitted applications, schedules, bids, confirmations, changes to
information on file with APX, notices and other communications conducted via
electronic transfer, including without 'imitation, direct computer link,
bulletin board, e-mail, facsimile or any other means established by APX, shall
invoke the same legal rights, responsibilities, obligations and other
implications set forth in the APX Terms as if executed in written format
8. MISCELLANEOUS.
8.1 Notices. Except as otherwise specified herein or in the APX Terms,
notices provided under the terms of this Service Agreement shall be in writing
and transmitted by mail, overnight courier, or facsimile. Notices to APX shall
be addressed to:
Automated Power Exchange, Inc.
00000 Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Attention: Contracts Department
Phone: (000) 000-0000 Fax: (650) 949-2
E-mail: contract -xxxxxx-xxxxxxxx.xxx
Notices to the Participant shall be addressed to the representative at the
address specified in Appendix 1 of this Service Agreement
8.2. Entire Agreement. This Service Agreement and all attachments hereto,
and the APX Terms embody the entire agreement and understanding of the Parties;
and supersede all prior or contemporaneous agreements and understandings of the
Parties, verbal or written, relating to the subject matter hereof.
8.3. Governing Laws. This Service Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, irrespective
of choice of law rules.
8.4. Independent Parties. Nothing in this Service Agreement shall be
construed or represented as creating a partnership, trust, fiduciary or any
similar relationship among the Parties. Except as set forth in the APX Terms, no
Party is authorized to act on behalf of the other Xxxxx and none shall be
considered the agent of the other.
8.5. No Third-Party Beneficiaries. This Service Agreement is made and
entered into for the sole protection and legal benefit of the Patties and their
permitted successors and assigns, and no other person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Service Agreement
8.6. Amendment. This Service Agreement is subject to modification by a
modification of the APX Terms. In all other respects, this Service Agreement
shall only be modified or amended by a written instrument executed by the
Parties and shall not be modified by course of performance or any usage of
trade.
8.7. Severability. The illegality or unenforceability of any provision of
this Service Agreement or any instrument or agreement required hereunder shall
not in any way affect or impair the legality or enforceability of the remaining
provisions of this Service Agreement or any instrument or agreement required
hereunder.
8.8. Counterparts. This Service Agreement may be executed in any number of
separate counterparts, which shall be deemed to constitute one instrument.
The authorized representatives of the Parties have executed this Service
Agreement as of the date first set forth above
AUTOMATED POWER EXCHANGE POWERSOURCE CORP.
By: /ss/____________
Executive V.P. Xxxxx Xxxxxx ( Director)
Date: 03-13-98 Date: 03-13-98
