Exhibit 10.24
Power Purchase Agreement
This Power Purchase Agreement (this "Agreement") is made and entered into this
18th day of August, 2005, between WindStor Power Co., a Michigan corporation
with offices at 00000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx
00000 ("Seller") and Ishpeming Housing Commission ("Purchaser") with offices at
000 Xxxxx Xx., Xxxxxxxxx, Xxxxxxxx 00000 (collectively Seller and Purchaser are
referred to herein as the "Parties" and individually as a "Party").
RECITALS:
WHEREAS, Seller or its affiliates develop, own and operate WindStor(sm), an
onsite wind energy generation, storage and distribution system that is able to
provide economically competitive renewable or "green" electricity using
WindStor(sm) vertical axis wind turbines and battery storage, all automatically
controlled by a proprietary WindStor(sm) system integration device;
WHEREAS, Purchaser wishes Seller to install and operate WindStor(sm) at
Purchaser's Site (as defined herein) in a configuration to be agreed and on
premises that shall be provided to Seller pursuant to a certain Lease (as
defined herein);
WHEREAS, Seller wishes to install and operate WindStor(sm) on the Site and to
sell WindStor(sm) - produced electricity and such other services as may be
specified herein to Purchaser at prices to be agreed and under the terms and
provisions of this Agreement;
WHEREAS, Purchaser wishes Seller to install such a WindStor(sm) system on the
Site and to purchase such electricity and other services from Seller pursuant to
this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements set forth herein, the Parties agree as follows:
1. Definitions.
For the purposes of this Agreement, the following terms shall have the following
meanings:
"Additional Facilities" means any and all equipment and facilities to be
constructed and installed by Seller pursuant to this Agreement which are located
at the Site on Purchaser's side of the Point of Delivery, as may be required
pursuant to good engineering and power industry practice or applicable utility
tariffs for operation of the Facility in parallel with the electric utility
providing service to the Purchaser, if any.
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"Agreement" means this Power Purchase Agreement (including all schedules,
exhibits and attachments hereto), as the same may be amended from time to time.
"Contract Term" means the period commencing on the date first written above and
extending through the twentieth anniversary of the date upon which Seller gives
notice to Purchaser that the Facility is capable of delivering Electric Power to
the Point of Delivery and that the Additional Facilities have been constructed,
installed, and delivered into Purchaser's care custody and control.
"Electric Power" means electric energy and all of the generation-related
products, services and attributes described in detail at Exhibit E hereof, as
being provided and sold to Purchaser pursuant to this Agreement.
"Facility" shall mean the equipment and facilities to be installed and operated
by Seller on Seller's side of the Point of Delivery pursuant to this Agreement,
for the purposes of generating, transmitting and delivering Electric Power to
the Point of Delivery, as such equipment and facilities are more fully described
in Exhibits C and D, and any and all additions, replacements and modifications
to such equipment and facilities. The Facility shall include one or more
WindStor(sm) vertical axis wind turbines, the mast and supporting structure, and
software controlling equipment, with enclosures, and may include battery storage
devices.
"Force Majeure" means events or circumstances beyond the reasonable control of a
Party, including acts of God; unusually severe weather conditions; strikes or
other labor difficulties; war or acts of terrorism; riots; change of law
imposing regulatory burden or prohibition upon Seller; withdrawal of required
governmental authorizations or permits; accident; fire; damage to or breakdown
of necessary facilities or transportation delays or accidents.
"Interest Rate" shall mean a variable rate of interest which is 250 basis points
over the three month London Interbank Offered Rate as posted with respect to the
applicable period in the "Money Rates" column of the Wall Street Journal or if
that source is not available, as reported by another widely-available business
publication, but in any event not greater than the maximum interest rate
permitted by law.
"Lease" means the lease agreement between Seller and Purchaser respecting
Purchaser's lease to Seller of the particular premises within the Site in which
the Facility will be installed and operated, and substantially in the form set
forth in Exhibit B.
"Payment Account" means an account maintained and funded by Purchaser with a
United States national bank which has been authorized by Purchaser to permit
Seller to make periodic automatic withdrawals of invoiced amounts under this
Agreement, pursuant to automatic clearinghouse transactions.
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"Point of Delivery" means the point within the Site at which Electric Power
produced by the Facility is delivered to Purchaser, all as described in detail
in Exhibit D.
"Site" shall mean the property owned or controlled by the Purchaser within which
the Facility and the Point of Delivery are or will be situated, all as described
in detail in Exhibit A.
"Site Preparation Fee" means the sum of - Waived.
2. Configuration, Construction, Installation and Operation of the Facility. (a)
(i) Subject to and in accordance with the provisions of this Agreement and
the Lease, Seller shall, at Seller's expense, configure, construct, install and
operate the Facility at the Site, and shall at Seller's expense construct and
install the Additional Facilities.
(ii) Subject to the terms of the Lease, Purchaser hereby grants to Seller,
for no additional consideration and for the term of this Agreement, all
rights of use, privileges, rights-of-way and easements to construct, install,
operate, maintain, repair, replace, inspect and remove Seller's equipment and
facilities as are necessary or convenient to Seller in connection with
Seller's performance of its obligations and enforcement of its rights under
this Agreement, including adequate and continuing access rights to the Site
during all times. Purchaser shall execute such other grants, leases, deeds
or customary documents as may be required to enable Seller to record such
rights, privileges, rights-of-way and easements. Each Party shall be
responsible for its own costs and expense, including recording fees
associated with the documentation and recordation of said rights, privileges,
rights-of-way and easements.
(b) Upon execution of this Agreement, Seller shall undertake, at its expense,
such studies and inquiries as may be in Seller's discretion necessary or
convenient to develop a proposal for the configuration of the Facility and to
prepare for submission to Purchaser a detailed proposal for pricing the Electric
Power to be delivered and sold under this Agreement. These studies and
inquiries may include: (1) obtaining reliable wind data applicable to the Site
from available sources or from on-Site testing and monitoring; (2) reviewing the
most recent twenty-four (24) consecutive months of utility bills and/or existing
interval electric usage data confirmed with the latest monthly utility xxxx and
applicable utility tariffs for the Site; (3) obtaining FAA clearance to install
WindStor(sm) turbine(s) at the Site; (4) ascertaining to Seller's satisfaction
that appropriate zoning is in effect or will be obtained by the Parties prior to
commencement of installation of the Facility; (5) confirming that the Facility
may lawfully and practicably be installed and operated on the Site in parallel
with any continuing electric utility service, and determining the scope and
cost of new facilities required by the utility to effect such parallel
operation; (6) confirming the feasibility and cost of installation of a
WindStor(sm) turbine, through geotechnical and/or architectural and
engineering inspections satisfactory to Seller; (7) ascertaining to Seller's
satisfaction that the transactions contemplated by this Agreement may be
consummated by Seller and Purchaser without regulatory prohibition or undue
regulatory burden; and (8) such due diligence inquiries with respect to the
Purchaser, the Site, and such other matters as Seller may reasonably deem
appropriate. Purchaser shall cooperate with and support Seller's studies and
inquiries as may reasonably be requested by Seller, including providing Seller
with a copy of Purchaser's operating records and electric utility service bills
for the previous twenty-four (24) months, and providing access to Seller's
representatives and records for inspections, utility interconnection access,
placement and mounting of wind testing devices, geotechnical and architectural
tests and such other information and access to people and data as may in
Seller's judgment, facilitate Seller's studies and inquiries.
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(c) Upon completion of the studies and inquiries described in Section 2(b),
Seller shall submit to Purchaser a detailed configuration and pricing proposal
in a form suitable to serve as Exhibits C, D, E and F to this Agreement. Such
proposal shall also specify all materials or services to be provided by
Purchaser, if any, together with the proposed cost responsibility therefor, in a
form suitable to serve as Schedule 2(c) to this Agreement. Purchaser shall,
within thirty (30) days after receipt of such configuration and pricing
proposal, accept or reject such configuration and/or pricing proposal. If
Purchaser fails either to accept or reject Seller's proposal within such thirty
(30) day period, Seller shall have the right to terminate this Agreement by
providing written notice to Purchaser; provided that in the event that Purchaser
enters into an agreement with or accepts service from an electric utility or
another electric service provider providing for new or changed pricing or
provision of electric services within eighteen (18) months following Seller's
first submission of a proposal to Purchaser under this Section 2(c), Purchaser
shall pay Seller the Site Preparation Fee within five (5) days after receipt of
Seller's written demand therefor.
Upon Purchaser's acceptance of such proposal, the Parties shall execute an
amendment to this Agreement incorporating such proposal as Exhibits C, D, E and
F, and Schedule 2(c), as the case may be. Upon execution of such amendment
Purchaser shall pay to Seller the Site Preparation Fee, such Site Preparation
Fee to be refunded by Seller with interest at the Interest Rate, through offsets
to Seller's charges for Electric Power sold to Purchaser during the first twelve
(12) calendar months following the commencement of such sales, or earlier in a
lump sum payment in the event that this Agreement is terminated by Purchaser
pursuant to Section 12 (b) hereof. In the event that Purchaser rejects such
configuration and/or pricing proposal, Purchaser shall provide Seller a detailed
written explanation of all of the reasons for such rejection. (d) If Purchaser
rejects Seller's configuration and/or pricing proposal in accordance with
Section 2(c), Seller may, but need not, modify the proposal and submit such
modified proposal to Purchaser for its acceptance or rejection. Purchaser shall
accept or reject any such modified proposal within fourteen (14) days after
receipt thereof, in accordance with and subject to all of the provisions of
Section 2(c) as if such proposal were the Seller's original proposal.
If a proposal submitted by Seller pursuant to this Agreement has not been
accepted by Purchaser within sixty (60) days after the Seller's initial
submission of a configuration and pricing proposal to Purchaser pursuant to
Section 2(c), Seller may at any time thereafter, until such time as Purchaser
delivers notice of acceptance of a configuration and pricing proposal submitted
by Seller, terminate this Agreement without additional charges or penalties to
either party, by providing written notice thereof to Purchaser; provided that in
the event that Purchaser enters into an agreement with or accepts service from
an electric utility or another electric service provider providing for new or
changed pricing or provision of electric services within eighteen (18) months
following Seller's first submission of a proposal to Purchaser under Section
2(c) above, Purchaser shall pay Seller the Site Preparation Fee within five (5)
days after receipt of Seller's written demand therefor.
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(e) Purchaser's acceptance of the configuration of the Facility under this
Agreement shall not be construed as confirming or endorsing the configuration of
the Facility, or warranting the Facility's safety, durability or reliability.
Purchaser shall not, by reason of such review or lack of review, be responsible
for the strength, details of configuration, or adequacy of equipment that is
part of the Facility.
(f) The governmental and electric utility authorizations and permits necessary
or desirable for Seller to construct, install and operate the Facility, and to
sell Electric Power to Purchaser, are set forth on Schedule 2(f). Upon
execution of the amendment to this Agreement described in Section 2(c), Seller
shall procure, at Seller's cost and expense, governmental authorizations and
permits set forth in Schedule 2(f) that are necessary or desirable to the
construction, installation and operation of the Facility, and Purchaser shall
procure, at Purchaser's expense, all zoning and other land use permits necessary
or desirable to install and operate the Facility, and electric utility and
governmental authorizations and permits set forth in Schedule 2(f) that are
necessary or desirable for Seller to operate the Facility in parallel with any
continuing electric utility service and to sell Electric Power to Purchaser as
provided in this Agreement. Each Party agrees to provide assistance to the
other in connection with efforts to secure such governmental authorizations and
permits as set forth in this Section 2(f).
(g) Upon satisfaction of the conditions set forth in Section 7 (a) of this
Agreement, Seller shall construct, install, operate and maintain the Facility,
and shall construct and install any Additional Facilities. Upon completion of
construction and installation of the Additional Facilities, if any, Seller shall
take any steps reasonably required by Purchaser to contribute and transfer
ownership of such Additional Facilities to Purchaser, and Purchaser shall have
sole responsibility for operating and maintaining the Additional Facilities.
(h) Each Party may, at its own cost and expense, install and maintain on its
side of the Point of Delivery, such voltage control, regulation and safety
devices and equipment that it determines are necessary or appropriate to protect
its own equipment and operations. Each Party shall, at its own cost and
expense, operate and maintain in good working order the equipment and facilities
which it owns. During the term of this Agreement, Seller shall cause the
Facility to be operated and maintained in accordance with good engineering and
power industry practice. Purchaser shall not during the Term of this Agreement
permit the Site or other property that it owns to be modified in any manner if
such modifications would in the reasonable judgment of Seller adversely affect
the operation and maintenance of the Facility or the potential of the Facility
to produce and deliver Electric Power to Purchaser.
(i) As between Seller and Purchaser, Seller shall have all right, title and
interest in and to the Facility and all drawings, diagrams, documents, permits
and governmental authorizations associated with the design, construction,
operation and maintenance of the Facility. As between Seller and Purchaser,
following the transfer of ownership described in Section 2(g) above, Purchaser
shall have all right, title and interest in and to the Additional Facilities and
all drawings, diagrams, documents, permits and governmental authorizations
associated with the design, construction, operation and maintenance of the
Additional Facilities.
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(j) The Parties shall cooperate with regard to any disconnection of the Facility
and shall provide reasonable advance notice to the other Party prior to any such
disconnection. Notwithstanding the foregoing, Purchaser shall provide at least
thirty (30) days written notice prior to disconnecting the Facility in
connection with Purchaser's scheduled maintenance of its facilities. Purchaser
shall only disconnect the Facility without notice to Seller for purposes of
safety or emergency that in Purchaser's reasonable judgment require such
disconnection, provided that Purchaser shall give notice to Seller of any such
disconnection as soon as practicable thereafter. The duration of any
disconnection by Purchaser hereunder shall be no longer than reasonably
necessary to address the maintenance, safety or emergency that required such
disconnection, and in no event shall not exceed seventy-two (72) hours in the
aggregate during any period of sixty (60) consecutive days.
(k) If either Party has reason to believe that the Facility is not operating
properly, it shall promptly notify the other Party of the circumstances thereof
via telephone or facsimile.
3. Purchase and Sale.
(a) Seller shall deliver and sell, and Purchaser shall accept and purchase, all
of the Electric Power produced by the Facility and delivered by Seller to the
Point of Delivery. The Electric Power sold to Purchaser hereunder shall have
the characteristics and meet such standards as are set forth in Exhibit E.
Except as expressly identified in Exhibit E, Seller is not selling, and
Purchaser is not purchasing, any electric generation-related products, services
or attributes, whether physical, contractual, tangible or intangible (including
reactive power; emissions credits; renewable energy credits; green certificates,
green tags or renewable generation attributes).
(b) Title and risk of loss of Electric Power sold under this Agreement shall
pass from Seller to Purchaser at the Point of Delivery.
(c) Purchaser shall not sell any of the Electric Power purchased from Seller
pursuant to this Agreement other than to tenants or employees of Purchaser that
use and take delivery of such Electric Power at the Site; provided that any such
sales shall be in compliance with law, and provided further that Purchaser shall
provide Seller written notice of Purchaser's intent to sell to such third
parties at least sixty (60) days prior to any such sale. Notwithstanding the
foregoing, if in Seller's judgment such sale subjects or may subject Seller or
its affiliates to regulation under any federal, state or provincial law, Seller
may terminate this Agreement in a time and manner as may be necessary or
convenient to avoid such regulation, without charge or penalty, by giving notice
thereof to Purchaser.
(d) In the event that Seller's deliveries of Electric Power under this Agreement
do not satisfy Purchaser's entire requirements for Electric Power, Purchaser may
produce, procure or otherwise arrange for additional supplies of Electric Power,
and as between Seller and Purchaser, Purchaser shall be responsible for any
rates, charges, fees, expenses or assessments imposed or caused by utilities or
any other parties with respect to such supplies of Electric Power from third
parties. In the event that Purchaser's requirements for Electric Power or other
electric services change in any manner after Purchaser's acceptance of the
configuration and pricing proposal from Seller as provided in Section 2 hereof,
Purchaser shall have sole cost and operational responsibility for any
installation of or modifications to equipment on Purchaser's side of the Point
of Delivery which may be required to produce, procure or arrange for such
changes, and shall perform such installation or modifications in a manner that
will not result in interference with or discontinuance of Seller's operation of
the Facility and delivery of Electric Power. Seller shall have no liability to
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Purchaser with respect to rates, charges, fees, expenses or assessments imposed
or caused by, other suppliers of Electric Power or other electric services, and
Purchaser shall indemnify Seller for any losses or costs imposed on Seller in
any manner due to the imposition of such rates, charges, fees, expenses or
assessments, as provided in Section 16; provided that in no event shall Seller
be required to change or modify the Facility or any element thereof, or to
permit any change or modification to the Facility by Purchaser or others, except
subject to Seller's prior approval in its sole discretion. Subject to the
foregoing, Seller shall reasonably cooperate with Purchaser in any of
Purchaser's discussions or communications with such utilities or other
suppliers, and in the performance of any installation or modification of
equipment on Purchaser's side of the Point of Delivery.
(e) Except as provided in Exhibit E, Seller shall have no obligation under this
Agreement to provide Purchaser an uninterrupted supply of Electric Power, or to
provide any minimum or maximum amount of Electric Power, or to schedule
deliveries of Electric Power to Purchaser, or to support the Purchaser's
scheduling of deliveries of Electric Power to any third party.
4. Rates and Charges.
(a) Purchaser shall pay Seller for Electric Power delivered to Purchaser
pursuant to this Agreement in accordance with the rates and charges set forth in
Exhibit F.
(b) Purchaser shall be obligated to pay all federal, state, and local taxes, of
any nature whatsoever, imposed on or with respect to the configuration,
installation and operation of the Facility, and the sale, delivery, and purchase
of Electric Power under this Agreement. Notwithstanding the foregoing,
Purchaser shall not be obligated to pay or reimburse Seller for any income taxes
assessed on Seller, or for gross receipts taxes associated with Seller's sales
hereunder, or for property taxes, real or personal, assessed against Seller by
local authorities with respect to the Facility.
5. Metering.
(a) Seller shall provide, at its expense, metering equipment to measure all
sales to Purchaser hereunder. The metering equipment shall be located at the
point(s) set forth on Exhibit D and shall meet or exceed the standards
applicable to meters approved for use by electric utilities in the state or
province where the Site is located. Purchaser may, at its own expense, install
metering facilities on Purchaser's side of the Point of Delivery.
(b) Seller's metering equipment shall be sealed and the seals shall be broken
only upon occasions when the meters are to be inspected, tested or adjusted by
Seller. Seller shall own the metering equipment that is used to measure sales
hereunder, and shall be the only Party authorized to cause seals to be broken on
such meters. Representatives of Purchaser shall be offered a reasonable
opportunity to be present upon any occasion when the seals for such meters are
to be broken. All testing of metering equipment shall be conducted by Seller,
its affiliate or agent. Seller may, from time to time, test the metering
equipment for accuracy, at Seller's expense. At Purchaser's request, Seller
will test the metering equipment, or Purchaser may request that the metering
equipment be tested by a third party mutually agreed upon; however, in either
event, if the metering equipment is found to be registering within two percent
(2%) plus or minus of one hundred percent (100%), the cost of such test shall be
paid for by Purchaser.
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(c) If any test of the metering facility establishes that the metering equipment
is not accurate, (regardless of whether the inaccuracy is within plus or minus
2%), Seller shall repair, replace or adjust the metering equipment at Seller's
expense and shall make an appropriate adjustment in Purchaser's billing, for the
entire period of inaccuracy of the meter measured from the date that the
inaccuracy began. If such date cannot be determined to the reasonable
satisfaction of both Parties, the billing adjustment shall be made for the last
one-half of the period between the date of the last prior successful meter test
and the date of the current test disclosing the inaccuracy.
(d) If either Party believes that there has been a meter failure or
interruption, it shall immediately notify the other Party. Should a meter be
determined to have failed to operate at any time, the quantities of electric
energy to be billed for such period of meter failure will be estimated by Seller
based upon good engineering practices, which shall include any one or more of
the following methods: previous usage history; 30-day average sales to
Purchaser; average hourly sales when the meter was properly operating; or review
of any records of Purchaser-installed meters, if available.
6. Effectiveness Beyond Contract Term.
This Agreement shall be effective upon execution by both Parties and shall
remain in effect, unless sooner terminated in accordance with its terms, until
one Party gives notice to the other Party of its intention to terminate the
Agreement, such notice to be given at least 365 days prior to the effective date
of such termination; provided that the provisions of this Section shall not give
either Party any right to terminate this Agreement prior to the end of the last
day of the Contract Term.
7. Conditions Precedent. (a) The obligations of Seller under this Agreement to
install and operate the Facility, to construct and install the Additional
Facilities, if any, and to sell Electric Power to Purchaser shall be conditioned
on the occurrence of all of the following conditions:
(i) The Lease shall have been executed by each Party and such Lease shall be
in effect;
(ii) Purchaser shall have procured, in form and substance reasonably
satisfactory to Seller, such property damage and liability insurance coverage
as Seller may reasonably require;
(iii) The Parties shall have entered into an amendment to this Agreement
incorporating agreed substitutions for Exhibits C, D, E and F, and Schedule
2(c) hereto, and Seller shall have received the full amount of the Site
Preparation Fee, if any;
(iv) Purchaser and Seller, as the case may be, shall have received all
governmental authorizations, exceptions, exemptions and permits needed in
Seller's sole judgment for Seller to construct, install and operate the
Facility at the Site, and to construct and install the Additional Facilities,
if any, in each case without condition, or with conditions in form and
substance acceptable to Seller in Seller's sole discretion;
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(v) Purchaser and Seller, as the case may be, shall have received all
governmental authorizations, exceptions, exemptions and permits needed in
Seller's sole judgment for Seller to sell Electric Power to Purchaser under
this Agreement without economic, financial or other regulation, or with a
degree of regulation that is acceptable to Seller in its sole discretion;
(vi) All materials and services to be provided by Purchaser, as set forth in
Schedule 2(c) hereof if any, shall have been contracted for or provided to
Seller's reasonable satisfaction;
(vii) Seller shall be satisfied with the results of such due diligence
inquiries as it deems necessary or convenient to conduct with respect to the
Purchaser, the Site and any other matters that Seller reasonably deems
appropriate; and
(viii) the representations and warranties of Purchaser set forth in this
Agreement shall be true and correct when made and as of the date that all other
conditions precedent set forth in this Section 7 have been satisfied.
(b) The obligations of Purchaser to purchase Electric Power under this Agreement
shall be conditioned on the satisfaction of all of the following conditions:
(i) The Lease shall have been executed by each Party and such Lease shall be
in effect;
(ii) The Parties shall have entered into an amendment to this Agreement
incorporating agreed substitutions for Exhibits C, D, E and F, and Schedule
2(c) hereto.
(iii) Seller shall have procured, in form and substance reasonably
satisfactory to Purchaser, such property damage and liability insurance
coverage as Purchaser may reasonably require;
(iv) the representations and warranties of Seller set forth in this Agreement
shall be true and correct when made and as of the date that all other
conditions precedent set forth in this Section 7 have been satisfied, and
(v) Seller has given notice to Purchaser that the Facility is capable of
delivering Electric Power to the Point of Delivery and that the Additional
Facilities have been constructed, installed, and delivered into Purchaser's
care custody and control.
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8. Billing and Payment.
(a) At all times after the satisfaction of the conditions set forth in Section
7(b), Purchaser shall provide Seller with the information and authorization
necessary to withdraw funds to pay invoices under this Agreement from a
Payment Account. On or before the fifth (5th) day of each calendar month,
Seller shall provide Purchaser an invoice for Electric Power delivered to
Purchaser during the previous calendar month and for any other charges due and
payable to Seller under this Agreement.
(b) Purchaser shall pay each invoice within ten (10) days after receipt
thereof. Such payment shall be made by Seller's authorized withdrawal from
the Payment Account, or in such other manner as may be satisfactory to Seller
in its sole judgment. In the event Purchaser disputes any element of an
invoice, it shall provide Seller with a written statement explaining in
reasonable detail the basis for such dispute. If Seller disagrees with
Purchaser, the provisions of Section 18 shall apply. If Seller agrees with
Purchaser, Seller will promptly submit to Purchaser an amended and corrected
invoice together with a refund of any overpayment previously received,
together with interest calculated at the Interest Rate.
(c) Except as provided in Section 5(c), notice of any dispute with respect
to any invoice shall be made within sixty (60) days of Purchaser's receipt of
such invoice. If Purchaser fails to dispute an invoice within such sixty (60)
day period, it shall thereafter be precluded from disputing said invoice.
(d) If Purchaser shall fail to make any payment required by this Agreement
when due, including disputed portions of invoices, or if Purchaser makes an
overpayment requiring a refund by Seller, the amount unpaid or overpaid, as
the case may be, shall bear interest at the Interest Rate from the date first
due or the date such overpayment was received, as the case may be, until the
obligation is discharged. If the due date of any payment falls on a Sunday or
bank holiday, the next business day following the due date shall be the last
day on which payment can be made without assessment of interest.
9. Assignment.
Neither Party shall assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of the other Party, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, Seller may
assign this Agreement without Purchaser's consent, to affiliates of Seller, and
to any lender providing financing to Seller or its affiliates, and to a buyer of
100% of the Facility; provided that Seller shall give notice to Purchaser of any
such assignment as soon as practicable thereafter. If Seller assigns this
Agreement or its rights hereunder to a lender, Purchaser shall execute any
consents reasonably required by such lender to effect an assignment of the
Agreement as collateral. Any assignment or transfer made in violation of this
Section 9 shall be deemed void.
10. Change in Law.
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If any applicable state or federal law, order, regulation, rule or utility
tariff or rate schedule concerning the governance or sale of electric energy is
amended, modified, nullified, suspended, repealed, found unconstitutional or
unlawful, or changed or affected in any respect by any state or federal law,
order, regulation or rule of any governmental authority after the date of this
Agreement (a "Change in Law"), and such Change in Law (i) has, or would be
reasonably likely to have, a material adverse effect upon either Party's ability
to perform its obligations under this Agreement; (ii) has altered, or would be
reasonably likely to alter, either Party's ability to perform (which shall be
deemed to exclude an adverse effect on the cost of such Party's performance) its
obligations under this Agreement as a whole, (iii) imposes or is likely to
impose a material regulatory burden on either Party or its affiliates; or (iv)
renders, or would be reasonably likely to render, the performance of either
Party's obligations under this Agreement illegal or unenforceable; then the
Party affected by the Change in Law shall promptly notify the other Party
thereof in writing, and the Parties shall negotiate in good faith an amendment
to this Agreement that satisfactorily mitigates the effect of the Change in Law;
provided that any such amendment shall preserve the legal and economic benefits
of this Agreement to each Party; and provided further that in the event of a
Change in Law which would result in regulation of Seller or its affiliates,
Seller shall have the rights to immediately cease sales to Purchaser hereunder,
to remove the Facility from the Site, and to terminate the Agreement without
charge or penalty, in each case if and as necessary or convenient to avoid such
regulation.
11. Confidentiality.
(a) Unless expressly approved by a Party, or, unless required by law, the other
Party shall not: (i) disclose to other persons any of the terms and conditions
of this Agreement; (ii) use, or permit others to use, such Party's or its
affiliates' name, brand or logo in any documentation, advertising or marketing
materials or other public displays. If a Party is required by law, or is in any
manner requested or required to disclose all or any part of such confidential
information to the public or to any court, tribunal or government authority, the
Recipient shall forthwith give to the other Party notice in writing of such
request or requirement and all relevant particulars thereof. The disclosing
Party will also provide such reasonable assistance as may be requested by the
other Party to assist in obtaining an order or waiver preventing such disclosure
from having to be made. If such disclosure is obliged, then it shall not be
deemed to be a breach of the Recipient's obligations hereunder.
(b) It may be necessary for each Party to provide the other Party information
necessary to permit performance of their respective obligations hereunder. The
Parties agrees that all information including cost estimates, financial and
other information provided by the other Party, which is clearly marked as
confidential, will be held in strict confidence, and upon the expiration or
earlier termination of this Agreement, the Parties and their respective
officers, employees, agents, advisors and representatives, will continue to hold
such information in confidence and will promptly return such confidential
documents provided by the other Party. The Parties' obligations to treat such
information as confidential shall terminate at the expiration of two (2) years
from the termination of this Agreement. Nothing in this Agreement shall limit
either Party's use or disclosure of information which:
11
(i) is generally known or available on an unrestricted basis to the public
or becomes so known or available on an unrestricted basis through no fault of
the receiving Party, or
(ii) is in the receiving Party's possession without restriction as to its use
or disclosure prior to its receipt from the disclosing Party, or
(iii) is acquired by the receiving Party on an unrestricted basis from any
third party, provided that the disclosing Party does not know or have reason to
know, or is not informed subsequent to disclosure by such third party and prior
to disclosure by the disclosing Party, that such information was acquired under
an obligation of confidentiality, or
(iv) information that was developed by or for the receiving Party
independently of and without reference to the information of the disclosing
Party, or
(v) is required to be disclosed by law or by any governmental authority with
appropriate jurisdiction in the circumstances; provided that the Party
immediately affected by such a requirement will use reasonable commercial
efforts to challenge such requirement or to secure a protective order
limiting further or greater disclosure in the circumstances
(c) The Parties agree that in the event a Party breaches its obligations under
this Section 11, the non-breaching Party shall be entitled to a restraining
order, injunction and/or other equitable relief, and the breaching Party hereby
waives any defense thereto as to the availability of money damages.
12. Events of Default and Termination.
(a) The occurrence of any of the following events shall constitute an "Event of
Default" hereunder:
(i) a Party's failure to make any payment required by this Agreement within
five (5) business days after receipt of written notice from the other Party
that a payment which is due has not been received;
(ii) a Party's failure to observe and perform any other material obligation
under this Agreement and continuance of such failure for a period of five (5)
days after receipt of written notice specifying the nature of such default and
demanding that it be remedied, or if by reason of the nature of such default
the same cannot be remedied within such five (5) day period, failure of the
defaulting Party to proceed promptly to institute corrective action to cure
the same and thereafter prosecute the curing of such default with diligence;
(iii) termination of the Lease;
(iv) a Party's filing, or consent by answer or otherwise to the filing
against a Party of, a petition for relief, reorganization, or arrangement or
any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction;
12
(v) a Party's general assignment for the benefit of creditors or consent to
the appointment of a custodian, receiver, trustee or other officer with
similar powers of itself or of any substantial part of its properties;
(vi) a Party is adjudicated insolvent or is liquidated;
(vii) a court or other governmental authority of competent jurisdiction shall
enter an order appointing a custodian, receiver or trustee, or an officer with
similar powers, with respect to a Party or any substantial part of any of its
properties; or an order for relief shall be entered in any case or proceeding
for liquidation or reorganization, or otherwise to take advantage of any
bankruptcy or insolvency law of any jurisdiction, relative to that Party or
ordering the dissolution, winding-up or liquidation of the Party; or a petition
for such relief is filed against a Party and not dismissed or stayed within
sixty (60) calendar days;
(viii) All of the conditions set forth in Section 7(a) hereof have not been met
within one year following the Purchaser's notice of acceptance of Sellers
configuration and pricing proposal as described in Section 2 hereof; or
(ix) a Party's representation made hereunder is not correct and true when
made, and such failure has a material adverse effect on the other Party.
(b) Upon the occurrence of an Event of Default the non-defaulting Party shall
have the right to terminate this Agreement upon written notice of such
termination to the defaulting Party, and shall, irrespective of its exercise of
such election to terminate, have any other remedies that may be available to it
at law or in equity, subject only to the provisions of Section 13 hereof.
13. Limitations of Liability, No Third Party Beneficiaries.
(a) Except where caused by the other Party's negligence or willful misconduct,
each Party shall be responsible for all physical damage to or destruction of the
property, equipment and/or facilities owned by it, and shall not seek recovery
or reimbursement from the other Party for such damage.
(b) To the fullest extent permitted by Law and notwithstanding other provisions
of this Agreement, in no event shall a Party be liable to the other Party,
whether in contract, warranty, tort, negligence, strict liability, or otherwise,
for special, indirect, incidental, multiple, consequential (including lost
profits or revenues, business interruption damages and lost business
opportunities), exemplary or punitive damages related to, arising out of , or
resulting from performance or nonperformance of this Agreement. This limitation
on damages shall not apply with respect to claims brought by third parties for
which a Party is entitled to indemnification under this agreement.
(c) The provisions of this Section 13 (Limitations of Liability, No Third Party
Beneficiaries) shall survive any termination, cancellation, expiration or
suspension of this Agreement.
(d) There are no third party beneficiaries to this Agreement.
13
14. Force Majeure
(a) Except in the case of an Event of Default arising under Section 12(a)(vii)
hereof, neither Party shall be deemed to be in breach of this Agreement and no
Event of Default shall be deemed to occur under this Agreement solely to the
extent that such Party's delay or failure in the performance of its obligations
hereunder (other than the obligation to pay money) is due to an event of Force
Majeure; provided that not withstanding any other provision of this Agreement,
the excuse of performance provided by this Section 14 (a) shall in no event
extend longer than ninety (90) days following the initial failure of performance
hereunder.
(b) The Party claiming an event of Force Majeure shall (i) give the other Party
reasonably prompt written notice describing the particulars of the occurrence;
(ii) suspend performance for no greater scope and no longer duration than is
required by the event of Force Majeure; (iii) use its reasonable commercial
efforts to remedy its inability to perform; and (iv) when able to resume
performance of its obligations under this Agreement, give the other Party
written notice to that effect.
15. Forward Contract [U.S. Contracts:] Without limiting the applicability of
any other provision of the U.S. Bankruptcy Code as amended (the "Bankruptcy
Code"), the Parties acknowledge and agree that (i) this Agreement constitutes a
"forward contract" as defined in Section 101 (25) of the Bankruptcy Code; (ii)
Purchaser and Seller are forward contract merchants; (iii) that the rights of
the Parties under the termination provisions of this Agreement will constitute
contractual rights to liquidate transactions hereunder; (iv) that any payment
related thereto will constitute a "settlement payment" as defined in Section 101
(51A) of the Bankruptcy Code; and (v) that the Parties are entitled to the
rights under, and protections afforded by, Sections 362, 546, 556, and 560 of
the Bankruptcy Code.
[Canadian Contracts:] Without limiting the applicability of any other provision
of the Companies Creditors Arrangement Act as amended (the "CCAA"), and the
Bankruptcy and Insolvency Act, as amended (the "BIA"), the Parties acknowledge
and agree that (i) this Agreement constitutes an "eligible financial contract"
as defined in Section 11.1(1) of the CCAA and section 65.1(7) of the BIA; (ii)
Purchaser and Seller are eligible financial contract merchants; (iii) that the
rights of the Parties under the termination provisions of this Agreement will
constitute contractual rights to liquidate transactions hereunder; and (iv) that
the Parties are entitled to the rights under, and protections afforded by,
Section 11.1 of the CCAA and section 65.1 of the BIA. 16. Indemnification.
Each Party agrees to release, indemnify, defend, and hold harmless the other
Party from any liabilities, lawsuits, penalties, claims, or demands (including
the costs, expenses and reasonable attorneys' fees on account thereof) that may
be made by any third party for injury, including death to persons or damage to
property, or money damages, or other costs or expense resulting from the
indemnifying Party's acts or omissions, whether or not such acts or omissions
are in furtherance of the indemnifying Party's performance under this Agreement,
14
and including any rates, charges, fees, expenses or assessments imposed on or
caused to be incurred by Seller, by other suppliers of electricity to the Site,
as described in Section 3(d). An indemnified Party shall notify the
indemnifying Party promptly of any written claims or demands against the
indemnified Party for which the indemnifying Party is responsible hereunder.
The foregoing indemnity shall be in addition to and not in lieu of any other
indemnity obligations provided by law. The indemnity provided in this Section
16 also shall apply to the successors and permitted assigns of the indemnified
Party.
17. Representations and Warranties.
(a) Each Party represents and warrants that it is, and during the term of this
Agreement shall remain, validly existing and in good standing under the laws of
its state of organization.
(b) Each Party represents that it has the power and authority to execute and
deliver this Agreement and perform its obligations hereunder. Each Party
represents and warrants its performance hereunder shall not violate any
provision of any applicable law, and that this Agreement has been duly and
validly executed and delivered and constitutes the valid, legal and binding
obligation of the Party enforceable in accordance with its terms, except as
enforceability may be limited by equitable principles or by bankruptcy,
fraudulent conveyance or insolvency laws affecting the enforcement of creditor's
rights generally.
(c) Each Party represents and warrants that it is not, and during the term of
this Agreement shall not be, in violation of any applicable law or any judgment
entered by any federal, state or local governmental authority, which violations
or judgments, individually or in the aggregate, would have a material adverse
effect on that Party's ability to perform its obligations under this Agreement.
(d) Each Party represents and warrants that it is solvent and there are no
bankruptcy, insolvency, reorganization, receivership or other arrangement
proceedings pending or being contemplated by it or, to its knowledge, threatened
against it.
(e) Each Party represents and warrants that there are no actions, suits,
governmental investigations or inquiries, or proceedings pending, or to each
Party's knowledge threatened, against it or any of its businesses that, if
determined adversely to it, would have a material adverse effect on its ability
to perform its obligations under this Agreement.
(f) Purchaser hereby represents and warrants that the execution, delivery and
performance of this Agreement does not and will not during the term of this
Agreement, violate, breach or conflict with any other agreement or obligations
of Purchaser, including Purchaser's agreements and obligations with creditors,
mortgagees, other electric utilities, or energy suppliers.
15
(g) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
18. Dispute Resolution.
In the event a dispute arises between Seller and Purchaser regarding the
application or interpretation of any provision of the Agreement, the Parties
shall endeavor to resolve the dispute informally before resorting to judicial or
extrajudicial means. Promptly after one Party notifies the other Party of the
existence and nature of the dispute, the Parties shall use reasonable efforts to
resolve the dispute through discussion and negotiation. If the Parties shall
not have resolved the dispute within ten (10) days after delivery of such
notice, each Party shall within fifteen (15) days after delivery of the notice,
provide its most senior executive officer to meet with the most senior executive
officer of the other Party at the Site to resolve the dispute. If the Parties
shall not have resolved the dispute to their mutual satisfaction within thirty
(30) days after delivery of the notice described above, either Party shall have
the right to pursue any and all remedies available at law or in equity. Pending
final resolution of any dispute, whether informal, judicial or otherwise, Seller
and Purchaser shall continue to fulfill their respective undisputed obligations
hereunder.
19. Notices.
All notices, invoices or other communications given, delivered or made under
this Agreement shall be in writing and will be delivered personally, by first
class mail, by nationally-recognized overnight courier, by facsimile or by e-
mail, to the address for notices identified below. If such communication is
delivered by facsimile or by e-mail, such notice shall be deemed delivered when
the receiving Party confirms receipt of that communication in writing by return
facsimile or e-mail. Notwithstanding the foregoing, all notices regarding
disputes, amendments, waivers, consents or assignments shall be delivered
personally, by first class mail or by nationally recognized overnight courier.
A Party may change the address shown below upon ten (10) days prior written
notice given in accordance with this paragraph.
To Seller: WindStor Power Co. 00000 Xxxxxx Xxxx Xxxx Xxxxx 000 Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000 Attention: Xxxxx X. Xxxxxx, President
Telephone No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxx.xxx
To Purchaser: Ishpeming Housing Commission 000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxxx 00000 Attention: Xxxxxx Xxxxxxx-Xxxxxxxx Telephone No.:
(000) 000-0000 Facsimile No.: (000) 000-0000 20.
Miscellaneous
(a) Amendments. Changes in, or additions to this Agreement may only be by a
writing executed by each of the Parties.
16
(b) Waivers. Any failure of any Party to enforce any of the provisions of this
Agreement or to require compliance with any of its terms at any time during the
pendency of this Agreement shall in no way affect the validity of this
Agreement, or any part hereof, and shall not be deemed a waiver of the right of
such Party thereafter to enforce any and each such provision. No waiver of any
provision of this Agreement shall be effective unless in writing signed by the
waiving Party.
(c) Governing Law. This Agreement shall be deemed a contract made under the
laws of the State of New York and, together with the rights and obligations of
the parties hereunder, shall be construed under and governed by the laws of the
State of New York, without reference to its principles of conflicts of laws.
(d) Choice of Forum. Each Party irrevocably and unconditionally: (i) agrees
that any suit, action, or other legal proceeding arising out of the Agreement
shall be brought in the federal or state courts located in New York County, New
York; (ii) consents to the jurisdiction of any such court or arbitration panel
in any such suit, action or proceeding; and (iii) waives any objection which
such Party may have to the laying of venue of any such suit, action, or
proceeding.
(e) Waiver of Jury Trial. The Parties hereby knowingly, voluntarily, and
intentionally waive any rights they may have to a jury trial in respect of any
litigation based hereon or arising out of, under, or in connection with this
Agreement, or any course of conduct, course of dealing, statements (whether oral
or written), or actions of the Parties with respect hereto.
(f) Entire Agreement. This Agreement consists of this Power Sales Agreement and
the following attached Schedules and Exhibits:
Schedule 2(c) Purchaser Provided Materials and Services
Schedule 2(f) Governmental Authorizations and Permits
Exhibit A Site Description
Exhibit B Form of Lease
Exhibit C Facility Description
Exhibit D Point of Delivery and Metering Facilities
Exhibit E Specification of Electric Power to be Sold to Purchaser
Exhibit F Rates and Charges
All Schedules and Exhibits referenced in this Agreement shall be incorporated
into this Agreement by reference and shall be deemed to be an integral part of
this Agreement. In the event of a conflict or inconsistency between the
Schedules or Exhibits, and this Agreement, the provisions of this Agreement
shall prevail.
17
(g) Merger. This Agreement constitutes the entire agreement among the Parties
hereto with respect to the subject matter hereof. This Agreement supersedes all
prior agreements between the Parties with respect to the subject matter hereof.
(h) Severability. The invalidity or unenforceability of any provision of this
Agreement shall in no way affect the validity or enforceability of any other
provision.
(i) Survival of Provisions. Any obligation of the Parties relating to monies
owed, as well as those provisions relating to limitations on liability,
indemnity and actions, shall survive termination or expiration of this
Agreement.
(j) Interpretation. In this Agreement:
(i) The captions and Section headings used herein are for convenience and
reference only and shall not have any effect on the construction of this
Agreement;
(ii) All pronouns as used in this Agreement shall be deemed to refer to the
singular, plural, masculine, feminine and neuter genders as the context
requires or permits;
(iii) The terms "hereof," "herein," "hereto," "hereunder" and words of similar
or like import refer to this entire Agreement and not any particular Section,
Schedule, Exhibit or other subdivision of this Agreement;
(iv) References to a particular "Section," "Schedule" or "Exhibit" are
references to that Article or Section of, or Schedule or Exhibit to, this
Agreement;
(v) The words "include," "includes" and "including" shall be deemed to be
followed by "without limitation" or "but not limited to."
(k) Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original, but all of which together shall
constitute but one and the same agreement. This Agreement may be delivered by
facsimile transmission.
(l) Joint Preparation. This Agreement has been prepared and negotiated by all
Parties hereto with the assistance and input of their respective attorneys, and
therefore no ambiguity herein shall be construed for or against any party based
upon the identity of the author of this Agreement or any portion hereof.
18
(m) The parties agree to execute the Agreement with the understanding that site
specific changes and/or modification may be necessary regarding the terms and
provisions of the Agreement as it pertains to the Ishpeming Housing Commission.
Any necessary changes will be in the form of an Addendum and incorporated into
and made an integral part of this Agreement. Items to be addressed as an
Addendum include, but are not limited to, waiving of fees for zoning and land
use permits; electric utility and governmental authorizations and permits; and,
rights of purchaser to terminate the Agreement.
Purchaser Signature: /s/ Xxxxxx Xxxxxxx-Xxxxxxxx Seller Signature: /s/ Xxxx Xxxxxxxxxx
--------------------------- --------------------
Name (Please print): Xxxxxx Xxxxxxx-Xxxxxxxx Name (Please print): Xxxx Xxxxxxxxxx
Position: Executive Director Position: President- XxXxxxxx Bay
for WindStor Power Co.
Date: August 18, 2005 Date: August 18, 2005
Schedule 2(c)
Purchaser Provided Materials and Services
And Cost Responsibility Therefor
----------------------------------------------------------------------------
Schedule 2(f)
Governmental Permits and Authorizations
Authorizations or Permits to Construct, Install or Operate the Facility
(Seller's Responsibility)
Zoning and Land Use Authorizations (Purchaser's Responsibility)
Authorizations or Permits Necessary or Desirable for Seller's Sale of Energy
(Purchaser's Responsibility)
----------------------------------------------------------------------------
Exhibit A
Site Description
----------------------------------------------------------------------------
19
Exhibit B
Form of Lease
LEASE
This Lease (the "Lease") is made as of this _____ day of _____________, 200_,
between , a __________, with its principal
office at ____________________ ("Lessor"), and WindStor Power Co., a Michigan
corporation with offices at 00000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx,
Xxxxxxxx 00000 ("Lessee," collectively Lessor and Lessee are referred to herein
as the "Parties" and individually as a "Party").
RECITALS
A. WHEREAS Lessor is the [owner/lessee] of the building commonly known as ,
located at ____________________ , and more particularly described in Exhibit A
(the "Site");
B. WHEREAS Lessee or its affiliates develop, own and operate WindStor(sm), an
onsite wind energy generation, storage and distribution system that is able to
provide economically competitive renewable or "green" electricity using
WindStor(sm) vertical axis wind turbines and battery storage, all automatically
controlled by a proprietary WindStor(sm) system integration device;
C. WHEREAS the Parties have entered into a certain Power Purchase Agreement
dated ______ (the "PPA") pursuant to which Lessee shall sell, and Lessor shall
purchase, Electric Power (as defined in the PPA).
D. WHEREAS, Lessee desires to install and operate the Facility (as defined in
the PPA) at the Site and on premises to be provided by Lessor; and
E. WHEREAS Lessor wishes to lease to Lessee, and Lessee desires to lease from
Lessor, a specified portion of the Site, as more particularly described in
Exhibit B attached hereto (the "Leased Space") for the construction,
installation, maintenance, operation, replacement and removal of the equipment
and infrastructure required for the Facility.
NOW, THEREFORE, in consideration of the mutual covenants and other good and
valuable consideration herein contained, Lessor and Lessee agree as follows:
1. Definitions and Interpretation.
1.1 Definitions. The following terms when used in this Lease with initial
letters capitalized shall have the meanings set forth below. All other
capitalized terms used but not defined herein shall have the meanings set
forth in the PPA.
20
"Applicable Laws" means all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, Permits,
licenses, authorizations, directives and requirements of all Governmental
Authorities with jurisdiction, including, without limitation, all
Environmental Laws.
"Commencement Date" shall have the meaning set forth in Section 4.1
hereof.
"Easement Area" shall have the meaning set forth in Section 2.1(ii)
hereof.
"Environmental Laws" means all applicable federal, state, provincial and
local laws, statutes, rules, regulations, ordinances, orders, decrees and
formal and written interpretations or rulings having the force of law,
existing now or in the future, including any issuances by Governmental
Authorities, relating to the environment, health and safety matters or
conditions, pollution or protection of the environment, including laws
relating to (i) any Hazardous Substance that is or is deemed to be, alone
or in any combination, hazardous waste, toxic, a pollutant, a deleterious
substance, contaminant or a source of pollution or contamination, (ii)
on-site or off-site contamination, (iii) chemical substances or products,
(iv) releases of pollutants, contaminants, chemicals or other industrial,
toxic or radioactive substances or other Hazardous Substances into the
environment, and (v) the manufacture, processing, distribution, use,
treatment, storage, transport or handling of Hazardous Substances.
"Event of Default" shall have the meaning set forth in Section 7 hereof.
"Governmental Authority" means any federal, state, provincial or local
government, and any political subdivision thereof, and any other
governmental, quasi governmental, administrative, judicial, public or
statutory body, ministry, department, instrumentality, authority, agency,
board, bureau, corporation or commission, but such term shall not include
Lessor.
"Hazardous Substance" means any substance that is toxic, ignitable,
reactive or corrosive and that is regulated by any Governmental
Authority; provided that "Hazardous Substance" includes any and all
material or substances that are currently defined or may at any time be
defined during the term of the Lease as "hazardous waste," "extremely
hazardous waste," or a "hazardous substance" pursuant to Applicable Laws;
provided further that "Hazardous Substance" includes asbestos,
polychlorobiphenyls ("PCB's"), petroleum and distillates thereof; and
provided further that the term "Hazardous Substance" shall not include
the Facility, the components thereof, or any spare parts or lubricants
that Lessee stores at the site or Leased Space with the Lessor's consent.
21
"Indemnified Party" and "Indemnifying Party" shall have the meanings set
forth in Section 8.3 hereof.
"Leased Space" has the meaning defined in Recital E.
"Lessee Indemnified Parties" shall have the meaning set forth in Section
8.2(a).
"Lessor Indemnified Parties" shall have the meaning set forth in Section
8.2(b).
"Permits" means all necessary permits, licenses, approvals, authorizations,
consents, registrations, easements, rights of way, leases, releases or
exemptions required by any Governmental Authority in connection with the
construction, installation, ownership, operation or maintenance of the
Facility.
"Permitted Encumbrances" means (i) liens, easements or other encumbrances,
on, or above the Site which are either in existence on the Commencement
Date (provided, such items are of record in the appropriate land records
office or notice thereof is otherwise provided to Lessee in writing) or
are subsequently created, subject to Lessee's written approval, which
shall not be unreasonably withheld, (ii) future mortgages granted by
Lessee on the Facility as well as future mortgages granted by any
permitted assignee of the Facility hereunder, (iii) liens which may arise
during construction of the Facility but only to the extent such liens are
being contested under the provisions of Section 2.5 hereof, and (iv) such
other matters as may be approved by the Lessor and Lessee in writing.
"PPA" shall have the meaning set forth in Recital C.
"Rent" shall have the meaning as set forth in Section 5.1 hereof.
"Site" has the meaning set forth in Recital A.
"Term" shall have the meaning set forth in Section 4.1 hereof.
"Termination Date" shall have the meaning as set forth in Section 7.5(b) hereof.
1.2 Interpretation. (i) the captions and headings in this Lease are for the
convenience of reference only and do not affect the scope, intent or
interpretation of any provision; (ii) all pronouns as used in this Lease shall
be deemed to refer to the singular, plural, masculine, feminine and neuter
genders as the context requires or permits; (iii) the terms "hereof", "herein",
"hereto", "hereunder" and words of similar or like import refer to this entire
Lease and not any particular Section, Schedule, Exhibit or other subdivision of
this Lease; (iv) references to a particular "Section", "Schedule" or "Exhibit"
are references to that Article or Section of, or Schedule or Exhibit to, this
Lease; and (v) the words "include", "includes" and "including" shall be deemed
to be followed by "without limitation" or "but not limited to."
22
2. Grant of Lease and Easements.
2.1 During the Term, Lessor shall and does hereby:
(a) lease the Leased Space unto Lessee, its successors and permitted
assigns, subject to the terms and conditions of this Lease;
(b) grant unto Lessee, all necessary access easements and such additional
easements as may become necessary at locations approved by Lessor, such
approval to not be unreasonably withheld, conditioned or delayed, for the
construction, installation, maintenance, operation and removal of the
Facility and the Additional Facilities (the "Easement Areas").
(c) agree that Lessee's authorized representatives shall have access to the
Leased Space twenty four (24) hours per day for each day during the Term
for the purposes of constructing, installing, maintaining, operating, and
repairing or removing the Facility, and Lessor further agrees to give
Lessee ingress to and egress from the Site during such times, including use
of service elevators, if available. Only officers, authorized engineers,
employees or properly authorized contractors, subcontractors, and agents of
Lessee, and other persons under their direct supervision and control, shall
be permitted to enter the Site, and only upon conditions set forth herein,
and such persons shall exercise reasonable care to minimize interference
with Lessor's and other tenant's operations at the Site. Notwithstanding
the foregoing, except in the event of an emergency, Lessee agrees to
provide Lessor with reasonable oral notification of its intent to enter the
Site and the Leased Space, and upon such entry shall comply with Lessor's
health, safety and security requirements that have been provided to Lessee.
2.2 Lessor's Rights to Reenter. Lessor and its representative shall have the
right to enter the Leased Space for any of the following purposes: (i) to
maintain the Site; (ii) to make inspections (including inspections pursuant
to Section 3.5 hereof), repairs, alterations, improvements or additions to
the Site; and (iii) to perform any acts related to the safety, protection,
preservation, or improvement of the Site. In the event Lessor enters the
Leased Space, Lessor shall comply with Lessee's (or Lessee's contractor's or
operator's) health, safety and security requirements and shall exercise
reasonable care to minimize interference with any activities of Lessee or
Lessee's contractors or operators.
2.3 Expiration of Lessee's Rights. Unless expressly provided otherwise, the
rights granted to Lessee hereunder shall expire and be of no further effect
upon the expiration of the Term, provided, however, Lessor hereby agrees
that Lessee's rights to access to the Site, the Leased Space and the
Easement Areas as set forth in Section 2.1 hereof shall survive termination
of this Lease until the Facility and any other equipment belonging to Lessee
have been removed therefrom.
23
2.4 Quiet Enjoyment and Title Matters. Subject to the Permitted
Encumbrances, Lessor covenants and agrees that Lessee's use of the Leased
Space shall be exclusive to Lessee on and after the Commencement Date and
throughout the Term, subject only to Lessor's access rights as set forth
herein or in the PPA; provided, however, that in its exercise of such
rights, Lessor shall not unreasonably interfere with Lessee's permitted use
of the Leased Space and/or Easement Areas. Lessee's rights to use the
Easement Areas shall be non-exclusive, but Lessor shall not, and shall not
permit other tenants, or employees or agents thereof, to unreasonably burden
or interfere with Lessee's use thereof. The Parties agree to use best
efforts to resolve any issues or disputes regarding the location, scope and
use of the easements and reserved rights, including, if necessary, the grant
by Lessor of additional or replacement easements in replacement or
relocation of all or any portions of the Easement Areas that are burdened by
any matters affecting the Easement Areas, including Permitted Encumbrances,
which grants Lessor shall make for no additional consideration hereunder.
Lessor also covenants and agrees to defend Lessee and its permitted assigns
in the peaceable, quiet and undisputed enjoyment of the Leased Space and
Easement Areas against the claims of all third parties claiming any interest
therein. The Parties acknowledge that upon the completion of construction of
the Site by Lessor, the Parties shall execute such amendments or supplements
to the Lease as may be necessary to give effect to this provision, all
without further consideration.
2.5 Liens and Encumbrances. Lessee shall be responsible for the satisfaction
or payment of any liens on the Site or Leased Space that are imposed by any
provider of work, labor, material or services to the Lessee. Lessee shall
also indemnify, hold harmless and defend Lessor against any such liens,
including the reasonable fees of Lessor's attorneys. Such liens shall be
discharged by Lessee within thirty (30) days after notice of filing thereof
by bonding, payment or otherwise, provided that Lessee may contest, in good
faith and by appropriate proceedings any such liens. The provisions of this
Paragraph 2.5 shall survive termination of this Lease.
3. Constructions and Operation of the Facility.
3.1 Use. Lessee shall use the Leased Space for the purposes of
constructing, installing, operating, maintaining and removing the Facility
and all other related equipment and facilities that are used in conjunction
with the Facility.
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3.2 Maintenance and Repair. Lessee agrees that installation and
construction of the Facility shall be performed in a neat, responsible, and
workmanlike manner, using generally accepted construction standards,
consistent with reasonable requirements as may be imposed by Lessor. Lessee
shall, at its sole cost and expense, repair or refinish any surface or any
other portion of the Site and Leased Space that is damaged by or during the
installation of the Facility and caused by Lessee or any of its agents,
representatives, employees, contractors, subcontractors, or invitees.
Without limitation of any other remedy available hereunder or at law or in
equity, if Lessee fails to repair or refinish any such damage, Lessor may,
in its sole discretion, but shall not be required to, repair or refinish
such damage and Lessee shall reimburse Lessor of the actual and verifiable
costs and expenses incurred in such repair or refinishing; provided that
prior to Lessor's repair or refinishing such damage, Lessor shall provide
thirty (30) days notice to Lessee giving Lessee the opportunity to repair or
refinish the damage within such thirty-day period.
3.3 Legal Compliance.
(a) In constructing, installing, equipping, operating and maintaining the
Facility, Lessee shall use reasonable care and diligence and shall perform
all work in a proper and workmanlike manner and in accordance with
Applicable Laws. Lessee covenants that it shall maintain files of all
documents and information relating to its compliance with Permits
associated with the Leased Space and/or the Facility (and Lessee's
operations thereon) and upon Lessor's written request, shall provide
Lessor with copies of all such documents filed with or otherwise provided
to, or received from, any Governmental Authority. Lessee shall take all
reasonable remedial actions necessary to avoid liability of the Parties or
the imposition of liens on the Leased Space that may arise under
applicable Environmental Laws as a result of Lessee's use of the Leased
Space or as a result of any actions by Lessee's contractors, invitees or
vendors. Lessee shall not install any Hazardous Substance into the Site or
the Leased Space. In the event that any Hazardous Substance is installed
on or brought into the Site by or on behalf of Lessee, then Lessee shall
cause the removal of same within twenty-four (24) hours of Lessor's demand
therefore, or Lessee's discovery thereof, whichever shall first occur.
This provision shall not apply to construction equipment and materials,
which equipment and materials shall be removed by Lessee immediately upon
completion of construction. In the event that Lessee shall discover,
uncover, disturb or otherwise reveal any existing Hazardous Substance
within the Leased Space or the Site, Lessee shall immediately stop any
work in progress and report such findings to Lessor within twenty-four
(24) hours. Lessee shall not conduct any further work in the reported area
without Lessor's written approval.
(b) Lessee shall have two options upon discovery of a Hazardous Substance
and cessation of work as described above: (i) immediately terminate this
Lease; or (ii) reschedule its installation work to a period after Lessor
has completed corrective action in regard to such Hazardous Substance;
provided, however, that Lessee may terminate this Lease upon written
notice to Lessor if such corrective action has not been commenced and
diligently pursued within thirty (30) days after Lessor's receipt of
notice of Lessee's discovery of the Hazardous Substance. In the event
Lessee discovers a Hazardous Substance on the Site, Lessor shall indemnify
and hold Lessee harmless in accordance with Section 8.2(d).
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(c) On or before the Commencement Date, Lessor shall have disclosed to
Lessee all information as is in its possession that shows areas of
contamination or the presence of a Hazardous Substance at the Site, with
such information to include any and all reports, test results, public
records and other sources of information known or available to Lessor. If
such information becomes available or known after the date hereof, Lessor
shall promptly provide such information to Lessee upon its receipt
thereof. Anything herein to the contrary notwithstanding, as between
Lessor and Lessee, title to, ownership of, legal responsibility and
liability for any and all Hazardous Substances preexisting within the Site
and undisturbed by Lessee, or brought on or into the Site, or on, in or
under the land upon which the Site is located, by Lessor or any other
person, shall at all times remain with Lessor.
3.4 Condition of the Site. Lessor understands and agrees that the structural
integrity and the load bearing capability of the Leased Space is of critical
importance to the construction, installation and operation of the Facility and
Lessor agrees that on or before the Commencement Date, it shall have provided
Lessee with all specifications and plans for the Leased Space and, to the extent
reasonably requested by Lessee, the Site, which are in Lessor's possession.
After the Commencement Date, Lessor agrees that it shall promptly notify Lessee
of any proposed changes or revisions to the Site or Leased Space, and Lessor
agrees not to make such changes or revisions to the extent they would adversely
affect the structural integrity or the load bearing capability of the Leased
Space. Lessor shall maintain the Site and the Leased Space in good repair,
ordinary wear and tear excepted, and in compliance with Applicable Laws. Lessor
further covenants that it shall not permit any use or construction by a third
party that would interfere with, or adversely affect the wind flow to the
Facility, or would adversely affect the operation, maintenance or performance of
the Facility.
3.5 Lessor's Inspection. Subject to Section 2.2 hereof, Lessor may enter the
Leased Space for the purpose of inspecting all installed wiring and capital
improvements and Lessee agrees to provide detailed as-built diagrams, as the
Lessor may reasonably require, of the initial wiring installation and any
changes thereto made during the Term.
4. Term.
4.1 Term. The term of this Lease (the "Term") shall commence on the date
first written above (the "Commencement Date") and, subject to extension or
earlier termination in accordance with the provisions hereof, shall
terminate upon the later of (i) the twentieth (20th) anniversary of the
Commencement Date, and (ii) the termination of the PPA.
5. Rent.
5.1 Rent. Lessee shall pay to Lessor a rent (the "Rent") of ONE HUNDRED
DOLLARS ($100.00) for the entire Term, which amount shall be paid in
advance by Lessee to Lessor on the Commencement Date.
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6. Representations and Warranties.
6.1 Mutual Representations.
(a) Each Party represents and warrants that it is, and during the term of
this Lease shall remain, validly existing and in good standing under the
laws of its state of organization.
(b) Each Party represents that it has the power and authority to execute and
deliver this Lease and perform its obligations hereunder. Each Party
represents and warrants that its performance hereunder shall not violate
any provision of any Applicable Law, and that this Lease has been duly
and validly executed and delivered and constitutes the valid, legal and
binding obligation of the Party enforceable in accordance with its
terms, except as enforceability may be limited by equitable principles
or by bankruptcy, fraudulent conveyance or insolvency laws affecting the
enforcement of creditor's rights generally.
(c) Each Party represents and warrants that it is not, and during the term
of this Lease shall not be, in violation of any Applicable Laws, which
violations, individually or in the aggregate, would have a material
adverse effect on that Party's ability to perform its obligations under
this Lease.
(d) Each Party represents and warrants that there are no actions, suits,
governmental investigations or inquiries, or proceedings pending, or to
each Party's knowledge threatened, against it or any of its businesses
that, if determined adversely to it, would have a material adverse
effect on its ability to perform its obligations under this Lease.
(e) Each Party represents and warrants that the execution, delivery and
performance of this Lease will not conflict with, violate, breach or
constitute an event of default under the terms of any agreement of such
Party or of any agreement to which its properties are subject, that
could reasonably be expected to have a material adverse effect on the
financial condition, prospects or business of such Party or its ability
to perform its obligations hereunder.
(f) Each Party represents and warrants that it is solvent and there are no
bankruptcy, insolvency, reorganization, receivership or other
arrangement proceedings pending or being contemplated by it or, to its
knowledge, threatened against it.
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6.2 Lessor Representations.
(a) Lessor represents to Lessee that (i) Lessor has [good and marketable
title to the Site and Easement Areas][has a leasehold interest in the
Site and Easement Areas that permits Lessor to sublease the Leased
Space to Lessee in accordance with the terms of this Lease], and (ii)
neither the Site nor the Easement Areas are or will be subject to any
liens or other restrictions except the Permitted Encumbrances.
(b) Lessor represents and warrants to Lessee that to the best of Lessor's
knowledge, there are no covenants, restrictions, rights of way,
easements or other encumbrances affecting the Site which would
unreasonably interfere with the Lessee's use thereof.
(c) Lessor represents and warrants to Lessee that it has disclosed to
Lessee all information as is in its possession that shows areas of
contamination or the presence of a Hazardous Substance at the Site in
accordance with Section 3.3(c), and that it has provided Lessee with
all specifications and plans for the Leased Space and the Site in
accordance with Section 3.4.
6.3 Waiver of Immunity. Lessor is subject to suit with respect to Lessor's
obligations under this Lease, and the execution, delivery and performance of
this Lease constitute Lessor's private and commercial acts. Lessor further
represents, warrants and covenants that: (i) should any proceedings be
brought against Lessor or Lessor's assets in any jurisdiction in connection
with this Lease or any of the transactions contemplated hereunder, no claim
of immunity from such proceedings will be claimed by or on behalf of Lessor
or any of Lessor's assets; and (ii) Lessor waives any right of immunity
which Lessor or any of Lessor's assets now has or, may in the future have,
in any jurisdiction in connection with any such proceedings.
7. Default and Remedies.
7.1 Event of Default. The occurrence of any one or more of the following
circumstances shall constitute an "Event of Default":
(a) a Party's failure to make any payment required by this Lease within thirty
(30) business days after receipt of written notice from the other Party that a
payment which is due has not been received;
(b) a Party's failure to observe and perform any other material obligation under
this Lease and continuance of such failure for a period of thirty (30) days
after receipt of written notice specifying the nature of such default and
demanding that it be remedied, or if by reason of the nature of such default the
same cannot be remedied within such thirty (30) day period, failure of the
defaulting Party to proceed promptly to institute corrective action to cure the
same and thereafter prosecute the curing of such default with diligence;
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(c) a Party's representation made hereunder is not correct and true when made,
and such failure has a material adverse effect on the other Party;
(d) a Party's filing, or consent by answer or otherwise to the filing against a
Party of, a petition for relief, reorganization, or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any bankruptcy
or insolvency law of any jurisdiction;
(e) a Party's general assignment for the benefit of creditors or consent to the
appointment of a custodian, receiver, trustee or other officer with similar
powers over itself or over any substantial part of its properties;
(f) a Party is adjudicated insolvent or is liquidated;
(g) a court or other governmental authority of competent jurisdiction shall
enter an order appointing a custodian, receiver or trustee, or an officer with
similar powers, with respect to a Party or any substantial part of any of its
properties; or an order for relief shall be entered in any case or proceeding
for liquidation or reorganization, or otherwise to take advantage of any
bankruptcy or insolvency law of any jurisdiction, relative to that Party or
ordering the dissolution, winding-up or liquidation of the Party; or a petition
for such relief is filed against a Party and not dismissed or stayed within
sixty (60) calendar days.
7.2 Termination/Remedies. (a) Upon or after the occurrence of an Event of
Default, the non-defaulting Party shall give written notice thereof to the
defaulting Party, setting forth the nature of the Event of Default. If the
defaulting Party fails to demonstrate within thirty (30) days after receipt
of the written notice of default that it has cured the Event of Default, or
if it is not possible to cure such Default within thirty (30) days that it
has undertaken diligent efforts to promptly cure such Default, then the non-
defaulting Party may elect to terminate this Lease and, in addition to such
right, may, subject to Section 7.3 hereof, seek monetary damages or any other
remedy to which the non-defaulting Party may be entitled at law or in equity.
(b) Within ninety (90) days of the date of expiration or termination of this
Lease (the "Termination Date"), Lessee shall, at Lessee's sole cost and
expense, remove the Facility and all of Lessee's personal property from the
Site. Any property not so removed may, at Lessor's sole option, be removed
and stored by Lessor at Lessee's expense. As of the date of such removal,
neither Party shall have any claim against the other, except for claims or
obligations that may have accrued prior to such termination or arise by
reason of the removal or non removal of such Facility and other equipment or
property, which claims or obligations shall survive termination hereof.
Further, Lessee agrees, at its sole cost and expense, to repair or refinish
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all damage caused by operation or removal of the Facility, excepting damage
caused by ordinary wear and tear. If Lessee fails to repair or refinish any
such damage, Lessor may, in its sole discretion, repair or refinish such
damage and Lessee shall reimburse Lessor of all actual and verifiable costs
and expenses incurred in such repair or refinishing; provided that prior to
Lessor's repair or refinishing such damage, Lessor shall provide thirty (30)
days notice to Lessee giving Lessee the opportunity to repair or refinish the
damage within such thirty-day period.
7.3 Limitation of Liability.
A. Except where caused by the other Party's negligence or willful misconduct,
each Party shall be responsible for all physical damage to or destruction of the
property, equipment and/or facilities owned by it, and shall not seek recovery
or reimbursement from the other Party for such damage.
B. To the fullest extent permitted by Law and notwithstanding other provisions
of this Agreement, in no event shall a Party be liable to the other Party,
whether in contract, warranty, tort, negligence, strict liability, or otherwise,
for special, indirect, incidental, multiple, consequential (including lost
profits or revenues, business interruption damages and lost business
opportunities), exemplary or punitive damages related to, arising out of , or
resulting from performance or nonperformance of this Agreement. For purposes of
clarification, indemnity supplied or paid pursuant to any of the indemnification
provisions of the Lease Agreement shall not be considered special, indirect,
incidental, multiple, punitive, consequential or incidental damages under this
Section. In addition, this limitation on damages shall not apply with respect to
claims brought by third parties for which a Party is entitled to indemnification
under this agreement.
C. The provisions of this Section 13 (Limitations of Liability, No Third Party
Beneficiaries) shall survive any termination, cancellation, expiration or
suspension of this Agreement.
D. There are no third party beneficiaries to this Agreement.
7.4 Casualty Damage. In the event of any fire, casualty, physical calamity
or physical damage to the Site or the Leased Space that makes it impossible for
Lessee to install, operate and maintain the Facility, or if as a result thereof
the Leased Space becomes unfit or undesirable for Lessee's use, Lessor, at its
sole option and expense, may restore the Site or the Leased Space, as the case
may be, to a condition that is suitable to the Lessee's uses as set forth in
Article 3. If Lessor elects to perform such restoration, the Parties shall
agree upon a reasonable time frame for the completion of such restoration. In
the event that (a) Lessor elects not to attempt to cure or remedy such damage,
(b) the Parties cannot agree upon a reasonable time frame for the completion of
restoration, or (c) the Lessor fails to restore the Site or Leased Space, as
applicable, within the time frame agreed upon by the Parties, Lessee may
terminate this Lease upon thirty (30) days prior written notice to Lessor. Upon
such termination, Lessee shall remove the Facility and its other equipment from
the Site as provided in Section 7.2 hereof. Lessee shall have no obligation to
pay Rent during any period in which the Site or Leased Space is rendered unfit
for Lessee's use due to fire, casualty, physical calamity or physical damage to
the Site.
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7.5 PPA Termination. This Lease shall terminate and cease to be in effect
upon the effective date of termination of the PPA.
7.6 Site Conveyance Termination.
(a) Unless the Lessor assigns the Lease in accordance with 7.6(b), at all
times during the Term, Lessor shall have [good and marketable title to
the Site and the Easement Areas/a leasehold interest in the Site and
Easement Areas that permits Lessor to sublease the Leased Space to
Lessee in accordance with the terms of this Lease].
(b) Lessor shall provide Lessee at least ninety (90) days notice prior to
any proposed sale, conveyance or other disposition of the Site and
Easement Areas, whether such disposition is voluntary or involuntary
(including threatened dispositions by condemnation, exercise of power of
eminent domain or otherwise), and such notice to Lessee shall identify
the proposed acquiror of the Site and Easement Areas. Subject to
Section 11.7, Lessor shall use reasonable commercial efforts to assign
the PPA and this Lease to such proposed acquiror. If Lessor and the
proposed acquiror have not entered into such an assignment agreement
that has been consented to by Lessee, within sixty (60) days after
Lessor's provision of notice of the proposed sale, conveyance or other
disposition, Lessee may terminate this Lease at any time thereafter upon
notice thereof.
(c) In the event of an actual or proposed sale, conveyance or other
disposition of the Site and Easement Areas, Lessor shall indemnify and
hold Lessee Indemnified Parties harmless in accordance with Section
8.2(e). 8. Insurance and Indemnity.
8.1 Insurance.
(a) On or prior to the Commencement Date Lessee shall obtain and keep in
full force and effect during the Lease Term the following minimum
insurance coverages with respect to its operations at the Leased Space:
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(i) Comprehensive general liability insurance, including contractor's
contingent coverage, with limits of not less than $______ per
occurrence of bodily injury and $_____ per occurrence of property
damage.
(ii) Casualty and contractual property damage liability insurance
covering liability assumed under this Lease with limits the same as
that provided for in 8.1(a)(i), which coverage may be umbrella
coverage.
(iii) Casualty insurance covering the Facility with coverage limits of not
less than __________.
(iv) To the extent applicable, worker's compensation insurance as required
by law and employer's liability insurance limits of not less than
$_____ for any accident at all work places involved in this Lease.
(b) On or prior to the Commencement Date Lessor shall procure casualty
insurance covering any loss or destruction to the Site, including the
Facility.
(c) Lessor and Lessee hereby release one another from any and all liability
or responsibility to the other or anyone claiming through or under them
by way of subrogation or otherwise or any loss or damage of property
caused by fire or any of the extended or supplementary contract
casualties, EVEN IF SUCH FIRE OR OTHER CASUALTY SHALL HAVE BEEN CAUSED
BY THE FAULT OR NEGLIGENCE OF THE OTHER PARTY, OR ANYONE FOR WHOM SUCH
PARTY MAY BE RESPONSIBLE, provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage
occurring during such time as all parties' applicable insurance policies
shall contain a clause or endorsement to the effect that any such
releases shall not adversely affect or impair said policies or prejudice
the right of the releasor to recover thereunder. Lessor and Lessee each
agree to request their respective insurance carrier to include such a
clause or endorsement in its policies. Any of the above coverages may be
umbrella coverage. Each of Lessee and Lessor shall name the other Party
as an additional insured on the aforementioned policies.
8.2 Indemnity.
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(a) Lessee's Indemnification. Lessee shall indemnify, defend, and hold harmless
Lessor, its affiliates, and its and their respective employees, officers,
agents, directors, successors and permitted assigns ("Lessor Indemnified
Parties"), from and against all injuries, losses, damages, costs, third party
claims, expenses and other liabilities, including reasonable attorney fees and
other expenses of litigation, incurred by reason of any claims of third parties
to the extent arising out of, resulting from, or connected with Lessee's actions
or omissions at the Leased Space and the Easement Areas.
(b) Lessor's Indemnification. Lessor shall indemnify, defend, and hold harmless
Lessee, its affiliates, and its and their respective employees, officers,
agents, directors, successors and permitted assigns ("Lessee Indemnified
Parties"), from and against all injuries, losses, damages, costs, third party
claims, expenses and other liabilities, including reasonable attorney fees and
other expenses of litigation, incurred by reason of any claims of third parties
to the extent arising out of, resulting from, or connected with Lessor's actions
or omissions at the Site, Leased Space and the Easement Areas.
(c) Mutual Indemnification. Lessor shall indemnify the Lessee Indemnified
Parties from all or any losses, claims, costs and liabilities sustained or
incurred by Lessee in respect of any failure by Lessor to perform its
obligations under this Lease. Lessee shall indemnify Lessor Indemnified Parties
from all or any losses, claims, costs and liabilities sustained or incurred by
Lessor in respect of any failure by Lessee to perform its obligations under this
Lease.
(d) Environmental Indemnification.
(i) Subject to 8.2(d)(ii), but without limiting the provisions of Section
8.2(b),(c) and (e), Lessor shall defend, indemnify and hold harmless Lessee
Indemnified Parties from and against all injuries, losses, damages, costs,
third party claims, expenses and other liabilities, including reasonable
attorney fees and other expenses of litigation, incurred by reason of the
presence of Hazardous Substances on, in or from the Site or Easement Areas.
(ii) Subject to 8.2(d)(i), but without limiting the provisions of Section
8.2(a) and(c), Lessee shall defend, indemnify and hold harmless Lessor
Indemnified Parties from and against all injuries, losses, damages, costs,
third party claims, expenses and other liabilities, including reasonable
attorney fees and other expenses of litigation, incurred by reason of any
claims of third parties to the extent arising out of, resulting from, or
connected with Lessee's introduction of a Hazardous Substance on or into the
Site or Easement Areas.
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(e) Conveyance Indemnification. Lessor shall defend, indemnify and hold
harmless Lessee Indemnified Parties from and against all injuries, losses,
damages, costs, third party claims, expenses and other liabilities, lender fees
and, if applicable, costs of termination, default or acceleration of facility
financing, including interest, make-whole charges, penalties, breakage fees,
costs of refinancing outstanding principal amounts and other charges imposed by
lenders providing Facility financing; and including reasonable attorney fees and
other expenses of litigation, incurred by Lessee in connection with the actual
or proposed sale, conveyance or other disposition of the Site and Easement
Areas.
8.3 Indemnification Proceedings. A Party that believes it is entitled to
indemnification under this Lease (the "Indemnified Party") shall promptly notify
the other Party (the "Indemnifying Party") of any claim or proceeding in respect
of which it seeks to be indemnified. Such notice shall be given as soon as
reasonably practicable after the Indemnified Party becomes aware of such claim
or proceeding and shall include a complete copy of all notices, pleadings and
other papers related thereto. Failure to provide notice as required herein shall
not excuse an indemnification obligation except to the extent such failure
adversely affects the Indemnifying Party's interests.
9. Force Majeure.
9.1 Except in the case of an Event of Default arising under Section 7.1(g),
neither Party shall be deemed to be in breach of this Lease and no Event of
Default shall be deemed to occur under this Lease solely to the extent that such
Party's delay or failure in the performance of its obligations hereunder (other
than the obligation to pay money) is due to an event of Force Majeure; provided
that not withstanding any other provision of this Agreement, the excuse of
performance provided by this Section 9.1 shall in no event extend longer than
ninety (90) days following the initial failure of performance hereunder.
9.2 The Party claiming an event of Force Majeure shall: (i) give the other
Party reasonably prompt written notice describing the particulars of the
occurrence; (ii) suspend performance for no greater scope and no longer duration
than is required by the event of Force Majeure; (iii) use its reasonable
commercial efforts to remedy its inability to perform; and (iv) when able to
resume performance of its obligations under this Lease, give the other Party
written notice to that effect.
10. Dispute Resolution.
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10.1 In the event a dispute arises between Lessor and Lessee regarding the
application or interpretation of any provision of this Lease, the Parties shall
endeavor to resolve the dispute informally before resorting to judicial or
extrajudicial means. Promptly after one Party notifies the other Party of the
existence and nature of the dispute, the Parties shall use reasonable efforts to
resolve the dispute through discussion and negotiation. If the Parties shall
not have resolved the dispute within ten (10) days after delivery of such
notice, each Party shall within fifteen (15) days after delivery of the notice,
provide its most senior executive officer to meet with the most senior executive
officer of the other Party at the Site to resolve the dispute. If the Parties
shall not have resolved the dispute to their mutual satisfaction within thirty
(30) days after delivery of the notice described above, either Party shall have
the right to pursue any and all remedies available at law or in equity. Pending
final resolution of any dispute, whether informal, judicial or otherwise, Lessor
and Lessee shall continue to fulfill their respective undisputed obligations
hereunder.
11. Miscellaneous.
11.1 Equipment to Remain Personalty. Except as otherwise provided herein, the
Facility shall remain personalty of the Lessee notwithstanding the fact that it
may be affixed or attached to the Site or Leased Space, and shall, during and
after the Term, belong to and be removable by Lessee. As between Lessee and
Lessor, Lessee shall have all right, title and interest in and to the Facility
and all drawings, diagrams, documents, Permits and governmental authorizations
associated with the design, construction, operation and maintenance of the
Facility.
11.2 Independent Contractor. Lessor and Lessee acknowledge and agree that the
relationship between them is solely that of independent contractors, and nothing
herein shall be construed to constitute the Parties as employer/employee,
partners, joint ventures, co-owners, or otherwise as participants in a joint or
common undertaking. Neither Party, nor its employees, agents, or
representatives shall have any right, power or authority to act or create any
obligation, express or implied, on behalf of the other. Except as provided in
the PPA, Lessee hereby accepts and assumes full and exclusive liability for, and
shall hold Lessor harmless from, the payment of all taxes, monies and other
expenses arising from the conduct of Lessee's business in the Leased Space,
including without limitation, contributions required under Applicable Law
providing for state, provincial and federal payroll taxes or contributions for
unemployment insurance or old age pensions, or annuities which are measured by
wages, salaries, or other remuneration paid to Lessee or by Lessee to its
employees for any and all activities in connection with this Lease.
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11.3 Notices. All notices, invoices or other communications given, delivered
or made under this Lease shall be in writing and will be delivered personally,
by first class mail, by nationally-recognized overnight courier, by facsimile or
by e-mail, to the address for notices identified below. If such communication
is delivered by facsimile or by e-mail, such notice shall be deemed delivered
when the receiving Party confirms receipt of that communication in writing by
return facsimile or e-mail. Notwithstanding the foregoing, all notices
regarding disputes, amendments, waivers, consents, assignments or sales,
conveyances or other dispositions of the Site and/or Easement Areas shall be
delivered personally, by first class mail or by nationally recognized overnight
courier. A Party may change the address shown below upon ten (10) days prior
written notice given in accordance with this paragraph.
To Lessee: WindStor Power Co.
00000 Xxxxxx Xxxx Xxxx Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxx.xxx
To Lessor:
11.4 Severability. The invalidity or unenforceability of any provision of
this Agreement shall in no way affect the validity or enforceability of any
other provision.
11.5 Survival of Provisions. Any obligation of the Parties relating to monies
owed, as well as those provisions relating to limitations on liability,
indemnity and actions, shall survive termination or expiration of this Lease.
11.6 Waiver. Any failure of any Party to enforce any of the provisions of
this Lease or to require compliance with any of its terms at any time during the
pendency of this Lease shall in no way affect the validity of this Lease, or any
part hereof, and shall not be deemed a waiver of the right of such Party
thereafter to enforce any and each such provision. No waiver of any provision
of this Lease shall be effective unless in a writing signed by the waiving
Party.
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11.7 Assignment. Neither Party shall assign this Lease or any of its rights
or obligations hereunder without the prior written consent of the other Party,
which consent shall not be unreasonably withheld. Notwithstanding the foregoing,
Lessee may assign or mortgage this Lease and the Facility without Lessor's
consent, to affiliates of Lessee, and to any lender providing financing to
Lessee or its affiliates, and to a buyer of 100% of the Facility. Lessor may
assign its rights under this Lease, without Lessee's consent, to a lender in
connection with any financing concerning the entire Site. If Lessee assigns
this Lease or its rights hereunder to a lender, Lessor shall execute any
consents reasonably required by such lender, and if requested by lender, provide
such lender notice and cure rights with respect to Lessee defaults as reasonably
required by such lender. Assignments made in violation of this Section 11.7
shall be deemed void.
11.8 Confidentiality. Neither Party shall disclose the terms of this Lease,
or any information of the other Party which it knows or reasonably should know
to be confidential or proprietary other than to the Party's affiliates,
potential investors, employees, lenders or other financing persons, counsel,
accountants and other advisors or agents, who have agreed to keep such
information confidential, or to the extent necessary to comply with any
Applicable Law, provided that each Party will provide prompt notice to the other
Party of any legal requirement to disclose, as early as practicable, prior to
such disclosure and, to the extent practicable, use reasonable efforts to
prevent or limit the disclosure.
11.9 Amendments. Changes in or additions to this Lease may only be by a
writing executed by each of the Parties.
11.10 Governing Law. This Lease shall be deemed a contract made under the
laws of the State of New York and, together with the rights and obligations of
the Parties hereunder, shall be construed under and governed by the laws of the
State of New York, without reference to its principles of conflicts of laws.
11.11 Choice of Forum. Each Party irrevocably and unconditionally: (i) agrees
that any suit, action, or other legal proceeding arising out of the Lease shall
be brought in the federal or state courts located in New York County, New York;
(ii) consents to the jurisdiction of any such court or arbitration panel in any
such suit, action or proceeding; and (iii) waives any objection which such Party
may have to the laying of venue of any such suit, action, or proceeding.
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11.12 Waiver of Jury Trial. The Parties hereby knowingly, voluntarily, and
intentionally waive any rights they may have to a jury trial in respect of any
litigation based hereon or arising out of, under, or in connection with this
Lease, or any course of conduct, course of dealing, statements (whether oral or
written), or actions of the Parties with respect hereto.
11.13 Entire Lease. This Lease consists of this Lease and the following
attached Schedules and Exhibits:
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Exhibit A Site Description
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Exhibit B Leased Space Description
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All Schedules and Exhibits referenced in this Lease shall be incorporated into
this Lease by reference and shall be deemed to be an integral part of this
Lease. In the event of a conflict or inconsistency between the Schedules or
Exhibits, and this Lease, the provisions of this Lease shall prevail.
11.14 Merger. This Lease constitutes the entire agreement among the Parties
hereto with respect to the subject matter hereof. This Lease supersedes all
prior agreements between the Parties with respect to the subject matter hereof.
Nothing in this Lease, and no action of either Party taken in connection with
its performance hereunder, shall affect the rights or obligations of either
Party under the PPA, except as may be expressly provided in the PPA.
11.15 Counterparts. This Lease may be executed in multiple counterparts, each
of which shall constitute an original, but all of which together shall
constitute but one and the same agreement. This Lease may be delivered by
facsimile transmission.
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11.16 Joint Preparation. This Lease has been prepared and negotiated by all
Parties hereto with the assistance and input of their respective attorneys, and
therefore no ambiguity herein shall be construed for or against any party based
upon the identity of the author of this Lease or any portion hereof.
11.17 Successors in Lessor's Interest. The terms, covenants and conditions
contained in this Lease shall bind and inure to the benefit of Lessor and Lessee
and, except as otherwise provided in this Lease to the contrary, to their
respective heirs, distributees executors, administrators, successors and
assigns.
11.18 Estoppel Certificates. At any time, and from time to time, but not with
less than fifteen (15) days prior notice from a Party, the other Party shall
execute, acknowledge, and deliver to the requesting Party a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the Lease is in full force and effect as
modified and stating the modifications), the dates to which Rent and other
charges, if any have been paid in advance, and such other information as may be
reasonably requested.
IN WITNESS WHEREOF, Lessor and Lessee have executed this as of the day and year
first above written.
Lessor: Lessee:
By: By:
Its: Its:
Name: Name:
Title: Title:
Date: Date:
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Exhibit C
Facility Configuration
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Exhibit D
Point of Delivery and Metering Facilities
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Exhibit E
Specifications of Electric Power to be Sold to Purchaser
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Exhibit F
Rates and Charges
Energy Charge
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