EXHIBIT 10.15
THERMAL ENERGY SALES AGREEMENT
THIS THERMAL ENERGY SALES AGREEMENT (this "Agreement"), is
made and entered into as of the 27th day of May, 1993, by and
between ORANGE-CO OF FLORIDA, INC., a Florida corporation
("OCF"), and XX XXXXX, LTD., a Florida limited partnership
("APC"). Capitalized terms used herein but not otherwise defined
herein have the meanings set forth in Article 1.
W I T N E S S E T H
WHEREAS, OCF owns and operates a citrus processing facility
located at 0000 X.X. Xxxxxxx 17 South, in Bartow, Florida (the
"OCF Plant"), which utilizes thermal energy for industrial
purposes;
WHEREAS, APC plans to construct, own, and operate a combined
cycle facility on the APC Plant Site for the cogeneration of
thermal energy and electricity (the "Facility");
WHEREAS, APC intends for the Facility to be a qualifying
cogeneration facility under the laws and regulations promulgated
under the Public Utility Regulatory Policies Act of 1978, as such
laws, regulations and Act may be further amended or supplemented
from time to time, or any successor to such laws, regulations or
Act (a "Qualifying Facility"), which will require that the
Facility make available useful thermal energy equal to a
specified percentage of its total energy output and that such
thermal energy be used in accordance with certain specified
efficiencies for an industrial or commercial process or for a
heating or cooling application;
WHEREAS, APC and Florida Power Corporation, a Florida
corporation ("FPC"), are parties to a Dispatchable Contract for
the Purchase of Firm Capacity and Energy from a Qualifying
Facility, effective November 19, 1991, as amended from time to
time (the "Power Purchase Agreement"), for the sale and purchase
of a certain portion of the capacity and electric power output
from the Facility; and
WHEREAS, APC desires to sell and OCF desires to purchase, in
each case on the basis of the terms and provisions of this
Agreement, thermal energy generated by the Facility for use at
the OCF Plant;
NOW THEREFORE, in consideration of the covenants and
conditions hereinafter set forth, OCF and APC hereby agree as
follows:
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ARTICLE 1.
DEFINITIONS
SECTION 1.1 Certain Definitions. Unless the context
shall otherwise require, each of the following terms shall have,
for the purposes of this Agreement, the meaning set forth below
for such term:
AAA has the meaning given in Section 8.3.
Affiliate has the meaning ascribed thereto in Rule 405
promulgated under the Securities Act of 1933, as amended from
time to time.
Agreement has the meaning given in the first paragraph of
this Agreement.
AIC means the average FPC Inventory Chargeout Rate for a
specific year.
Annual Minimum Obligation has the meaning given in Section 3.1(a).
APC has the meaning given in the first paragraph of this Agreement.
APC Plant Site means the parcel of land described in Exhibit A.
Business Day means any Day on which commercial banks are not
authorized or required to close in Florida.
Calendar Year means any twelve (12) month period commencing
on January 1 and ending the following December 31.
Casualty means any destruction of, loss of, loss of the use
of, or damage to the OCF Plant resulting from any human action,
act of God, fire, explosion, earthquake, accident, or the
elements, whether or not covered by insurance, and whether or not
caused by default or negligence of either party, or their
respective employees, agents, contractors or visitors.
Condensate means Steam condensate which satisfies the
specifications in Exhibit B.
Condensate Transfer Point has the meaning given in Section 3.9.
Consumer Price Index means the Producer Price Index
applicable for the Tampa-St. Petersburg Metropolitan Area, or any
successor to such Index.
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Day means any twenty four (24) hour period commencing at
12:00 midnight, including Saturdays, Sundays and holidays except
that, in the event that a financial obligation falls due on a
Saturday, Sunday or a legal holiday in the State of Florida, the
obligation shall be deemed due on the next Business Day.
Dispatchable has the meaning given in the Power Purchase Agreement.
Facility has the meaning given in the Recitals to this Agreement.
FERC means the Federal Energy Regulatory Commission, or any
successor or replacement thereto.
Force Majeure has the meaning given in Section 6.1.
FPC has the meaning given in the Recitals to this Agreement.
FPC Inventory Chargeout Rate has the meaning given in Section 3.11(a).
FPC Payment Statement has the meaning given in Section 3.11(b).
Heat Transfer Point has the meaning given in Section 3.9.
Material Interruption means any interruption in the delivery
of Steam from the Facility in excess of one (1) hour that will
materially adversely affect OCF's operations.
Maximum Delivery Obligation has the meaning given in Section 3.2.
Natural Disaster Force Majeure has the meaning given in Section 6.4.
OCF has the meaning given in the first paragraph of this Agreement.
OCF Boilers means the boilers located at the OCF Plant which
are used by OCF to produce steam.
OCF Plant has the meaning given in the Recitals to this Agreement.
Peak Hours means (i) those hours each Day that are deemed to
be "On-Peak Hours" under the Power Purchase Agreement, and (ii)
any other time period, outside such "On-Peak Hours," that APC
produces and delivers electricity to FPC or any other customer.
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Person means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other
entity of whatever nature.
Power Purchase Agreement has the meaning given in the Recitals
to this Agreement.
Project Lender means any bank, financial institution or
other Person providing any financing for the acquisition,
development, construction, operation, modification or repair of
the Facility, including, without limitation, any subsequent
transferee of any rights of any such bank, financial institution
or other Person.
Purchaser Event of Default has the meaning given in Section 4.1.
Qualifying Facility has the meaning given in the Recitals to
this Agreement.
Seller Event of Default has the meaning given in Section 4.2.
Standby Boilers means a packaged boiler or boilers, to be
located at the APC Plant Site, with an aggregate rated Steam
generation capacity upon installation of a minimum of seventy
thousand (70,000) pounds per hour measured at the Heat Transfer Point.
Steam means the steam delivered to OCF by APC which, after
the Steam Commencement Date, shall satisfy the specifications for
steam in Exhibit C.
Steam Commencement Date means the date when APC notifies OCF
that APC is prepared to commence delivery of regular quantities of Steam.
Steam Cost has the meaning given in Section 3.11.
Substantial Taking means a taking of all or a substantial
part of the OCF Plant, as a result of the exercise of the right
of condemnation or eminent domain, including without limitation,
any inverse condemnation proceeding or conveyance in lieu of or
in anticipation of the exercise of any right of condemnation or
eminent domain.
Term has the meaning given in Section 2.1.
Termination Date has the meaning given in Section 5.2(a).
Termination Notice has the meaning given in Section 5.2(a).
SECTION 1.2 References to this Agreement. Any reference
herein to this Agreement shall be deemed to be a reference to
this Agreement as amended, modified and supplemented from time to
time in conformity with the provisions of Section 10.5.
References to Articles, Sections, Paragraphs, Clauses, Exhibits,
Appendices and Schedules without further reference are to
Articles, Sections, Paragraphs, Clauses, Exhibits, Appendices or
Schedules attached hereto
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and are incorporated herein and made a part hereof. References
in this Agreement to "hereby," "herein," "hereinafter,"
"hereinabove," hereinbelow," "hereof," "hereunder," or words of
similar import shall be to this Agreement in its entirety and not
only to the particular Article or Section in which such reference
appears.
SECTION 1.3 Articles and Sections. This Agreement, for
convenience only, has been divided into Articles and Sections and
it is understood that the rights, powers, privileges, duties, and
other legal relations of the parties hereto shall be determined
from this Agreement as an entirety and without regard to the
aforesaid division into Articles and Sections and without regard
to headings affixed to such Articles or Sections.
SECTION 1.4 Number and Gender. Whenever the context
requires, reference herein made to the single number shall be
understood to include the plural and likewise the plural shall be
understood to include the singular. Words denoting sex shall be
construed to include the masculine, feminine, and neuter, when
such construction is appropriate, and specific enumeration shall
not exclude the general, but shall be construed as cumulative.
Definitions of terms defined in the singular or plural shall be
equally applicable to the plural or singular, as the case may be.
SECTION 1.5 Participation in Preparation of Agreement.
The parties acknowledge and agree that each has participated in
the drafting of this Agreement.
ARTICLE 2.
TERM
SECTION 2.1 Term. This Agreement shall be binding as of
the date hereinabove written. The term of this Agreement shall
begin on the Steam Commencement Date and shall continue to
December 31, 2025, unless sooner terminated in the manner
provided herein (the "Term"). Notwithstanding the foregoing, the
Term shall be automatically extended on a day-for-day basis so
that the Term runs concurrently with the Power Purchase
Agreement, or any successor or replacement thereto, or any
additional agreement that APC may enter into to sell electricity
produced at the Facility; provided, however, in all events, the
Term shall expire no later than December 31, 2027, unless
extended by mutual agreement of the parties. Promptly following
the Steam Commencement Date, the parties shall enter into a
written stipulation of the Steam Commencement Date.
SECTION 2.2 APC Conditions Precedent.
(a) The obligations of APC under this Agreement are
expressly conditioned upon the occurrence of all of the following:
(i) FERC certifies the Facility as a
Qualifying Facility;
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(ii) APC obtains all federal, state and local
permits, certificates, approvals or consents which APC, in its
sole discretion, deems necessary to construct and operate the Facility;
(iii) The execution of a contract or, if
applicable, contracts, by APC relating to the purchase and
transportation of natural gas for the Facility with a supplier
and transporter of APC's choice upon terms and conditions
satisfactory to APC in its sole discretion, with all permits,
certificates, approvals or consents of any governmental authority
necessary for the performance of said contract(s) having been
obtained on terms acceptable to APC, in its sole discretion; and
(iv) APC acquires the APC Plant Site, on
terms and conditions satisfactory to APC in its sole discretion; and
(v) APC obtains adequate financing for the
cost of acquiring, constructing and installing the Facility, upon
terms and conditions satisfactory to APC in its sole discretion.
(b) APC shall diligently pursue the satisfaction of
the foregoing conditions. If any of the conditions are not
satisfied on or before June 30, 1996, unless such date is
extended by APC, APC thereafter may terminate this Agreement
without any further obligation of either party to the other hereunder.
ARTICLE 3.
MINIMUM AND MAXIMUM PURCHASE OBLIGATIONS;
STEAM OBLIGATIONS; PRICING
SECTION 3.1 Minimum Obligations.
(a) In each Calendar Year during the Term, OCF shall
have the obligation (the "Annual Minimum Obligation") to take and
pay for ninety-one million (91,000,000) pounds of Steam;
provided, however, only Steam delivered by APC to OCF during Peak
Hours during the period from January 1 through, and including,
May 31, and November 15 through, and including, December 31 of
each Calendar Year may be used to satisfy the Annual Minimum
Obligation; provided, further, if OCF processes citrus products
outside such period, any Steam delivered by APC to OCF during
Peak Hours outside of such period may be used to satisfy the
Annual Minimum Obligation. APC shall have Steam available for
delivery during at least thirty one hundred and sixty eight
(3168) Peak Hours during the period from January 1 through, and
including, May 31, and November 15 through, and including,
December 31 of each Calendar Year; provided, however, if OCF
processes citrus products outside such period, APC may satisfy
such obligation to have Steam available for delivery to OCF by
having Steam available for delivery to
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OCF during the Days,
outside of such period, that OCF is processing citrus products.
For purposes of this Section 3.1(a), APC shall be deemed to have
made Steam available for delivery to OCF during all periods when:
(i) the OCF Plant is shutdown or unable or
unwilling to accept Steam at a rate of at least ten thousand
(10,000) pounds an hour, regardless of whether APC is able to
deliver Steam to the OCF Plant during such period;
(ii) APC is unable to produce and/or deliver
Steam as a result of (A) OCF's failure to perform its obligations
under this Agreement, or (B) the negligence, gross negligence, or
willful misconduct of OCF or its agents, contractors or
employees; or
(iii) either party is unable to perform
its obligations under this Agreement due to an event of Force
Majeure.
If APC fails to satisfy such thirty one hundred sixty eight
(3168) hour obligation, APC's sole liability (except for any
liability that may occur under Section 7.3) shall be that the
Annual Minimum Obligation shall be reduced in accordance with the
following formula:
AAM = A x 91,000,000
----
3168
WHERE
AAM = The Annual Minimum Obligation for the Calendar Year during
which APC fails to satisfy the thirty one hundred sixty
eight (3168) Peak Hour delivery obligation.
A = The number of Peak Hours that APC is deemed to have made
Steam available for delivery to the OCF Plant during
such Calendar Year in accordance with this Section 3.1(a).
During the Calendar Year in which the Steam Commencement
Date occurs, the Annual Minimum Obligation shall be reduced to
the amount determined by the following formula:
X = A x (B/C)
WHERE
X = The Annual Minimum Obligation for the Calendar Year in
which the Steam Commencement Date occurs.
A = Ninety-One Million (91,000,000) pounds of Steam.
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B = The number of Days after the Steam Commencement Date that
OCF uses steam (either from the OCF Boilers, from APC,
or otherwise) at the OCF Plant.
C = The number of Days during the Calendar Year that OCF
uses steam (either from the OCF Boilers, from APC, or
otherwise) at the OCF Plant.
(b) In order to assure compliance with the Annual
Minimum Obligation and to facilitate the maintenance of the
Facility as a Qualifying Facility, the parties hereto agree to
meet at least quarterly to discuss OCF's Steam needs and APC's
requirements to maintain its status as a Qualifying Facility. If
APC is not able to maintain its status as a Qualifying Facility
even if OCF is in compliance with the requirements of Section
3.1, then should APC elect to install an additional system
requiring Steam at the OCF Plant because it is necessary in order
for the Facility to regain or to maintain its status as a
Qualifying Facility, then OCF agrees to cooperate fully with APC
in connection with: (i) providing data and other information
required by APC for the design and installation of such system
and any required interconnection facilities and any related
modifications to the Facility or the OCF Plant; (ii) providing
data and other assistance required by APC for the procurement of
all necessary governmental approvals for the System; and (iii)
providing the required space for such system and granting any
necessary easements and rights of way to install and to operate
such system. If APC elects to install the system, APC shall
provide OCF with written notice of its determination to install
the system. The system shall be designed, purchased, installed
and interconnected with the OCF Plant and the Facility at APC's
sole cost. APC shall only be required to install a system that
is sufficient in output to enable the Facility to regain or to
maintain its status as a Qualifying Facility. Such systems may
include a) "citrus" towers; b) pasteurizers; c) absorption
refrigeration units and d) waste heat evaporators. In addition,
all Steam required to operate such additional system(s) shall be
provided at no cost to OCF. Implementation of such alternative
systems shall be APC's sole and exclusive remedy under this
Agreement if the Facility is unable to maintain its Qualifying
Facility Status despite OCF's compliance with the requirements of
Section 3.1 and this Agreement, unless such failure is due to
OCF's negligence, gross negligence or willful misconduct.
SECTION 3.2 APC's Maximum Delivery Obligation. APC
shall not be obligated to deliver to OCF more than seventy
thousand (70,000) pounds per hour nor more than two hundred forty
million (240,000,000) pounds per Calendar Year of Steam (the
"Maximum Delivery Obligation"); provided, however, APC shall not
be required to deliver more than eighty million (80,000,000)
pounds of Steam during the non-Peak Hours in any Calendar Year.
Notwithstanding the foregoing, during the period from July 1
through, and including, October 15 of each Calendar Year, the
seventy thousand (70,000) pounds per hour Steam delivery
obligation shall be reduced to twenty thousand (20,000) pounds
per hour.
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In addition to the foregoing, APC shall not be obligated but
will make reasonable efforts to supply Steam in quantities above
two hundred forty million (240,000,000) pounds per Calendar Year
upon request by OCF provided that such quantities, when combined
with the Maximum Delivery Obligation quantities, do not exceed
seventy thousand (70,000) pounds per hour.
SECTION 3.3 Steam Condensate and Water Return.
(a) In each Calendar Year, OCF agrees to return and
deliver to APC at the Condensate Transfer Point, at OCF's sole
cost, Condensate in a quantity equivalent to, on average, at
least Sixty percent (60%) of the mass volume of the Steam
delivered to OCF during such Calendar Year. OCF's obligation to
deliver such Condensate shall be conditioned on APC delivering
Steam that meets the specifications for Condensate set forth in
Exhibit B. If OCF fails to return such a quantity of Condensate
during any such Calendar Year, OCF shall pay APC within Thirty
(30) Days after the end of the Calendar Year an amount equal to
the cost to APC of obtaining, treating and heating water required
to make up the difference between the mass volume of Condensate
actually returned by OCF to APC during such Calendar Year, and
the required Sixty percent (60%) quantity; provided, however,
OCF's maximum liability in a Calendar Year for failing to return
the required sixty percent (60%) quantity shall not exceed the
amount determined by the following formula:
$100,000 x A x 0.6-C
- -----
B 0.6
WHERE:
A = the total number of pounds of Steam purchased by OCF in
the applicable Calendar Year
B = 240,000,000
C = the percentage of the mass volume of Steam
delivered to OCF during the applicable Calendar Year
that is returned to APC in the form of Condensate.
For the purposes of the Agreement the maximum penalty for
Condensate not returned shall be one hundred thousand dollars
($100,000) per Calendar Year.
(b) If any portion of the Condensate becomes
contaminated prior to return to APC, OCF shall (i) notify APC
promptly of such contamination, and (ii) correct the source or
cause of such contamination as expeditiously as reasonably
practicable and dispose of such contaminated Condensate at OCF's
sole cost and expense. APC shall notify OCF promptly of any
contaminated Condensate delivered to APC by OCF, and OCF shall
correct the source or cause of such contamination as
expeditiously as reasonably practicable and dispose of such
contaminated Condensate at OCF's sole cost and expense.
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(c) Notwithstanding the provisions of paragraphs (a)
and (b) of this Section 3.3, APC shall pay the capital cost for a
"citrus tower" which has the capacity for treating two hundred
thousand (200,000) gallons per day of OCF's condensate. If OCF
should, in its sole discretion, decide to install a citrus tower
with a capacity in excess of two hundred thousand (200,000)
gallons per day, APC shall pay a pro rata portion of the capital
cost of such citrus tower, in an amount equal to two hundred
thousand (200,000), divided by the total treatment capacity,
multiplied by the total capital cost. In addition, all steam
required to operate the citrus tower shall be provided at no cost
to OCF. OCF shall notify APC of its intent to exercise its
options under this subsection by December 31, 1997. APC agrees
to pay such costs within thirty (30) Days after submission of
verifiable invoices during the design, manufacture and
installation of the "citrus tower".
SECTION 3.4 Additional OCF Operating
Responsibilities. In addition to the other obligations of OCF
set forth in this Agreement, OCF shall have the following
obligations with respect to APC ownership and operation of the
Facility:
(a) OCF shall perform or provide, as applicable, at
OCF's expense, all materials (including piping, valves and
pumps), and services, repairs and adjustments to such materials,
on the OCF Plant side of the Heat Transfer Point necessary to
receive and utilize Steam at the OCF Plant, unless, and to the
extent that, the need for any such service, repair or adjustment
is caused by any negligent act of an employee, agent or
contractor of APC or an Affiliate thereof.
(b) OCF shall provide APC with such easements,
licenses and other rights to OCF property as APC may reasonably
require in connection with the Facility, and shall cooperate with
APC in obtaining, at APC's expense, all other required easements,
licenses and other rights; provided, however, OCF shall not be
required to provide any easement, license or right which
materially interferes with the operation of the OCF Plant.
(c) APC shall pay for the acquisition and installation
of, but OCF shall own and control, all materials (including
collection tanks, transfer pumps, controls, meters, and valves)
in or adjacent to the OCF boiler house necessary to return
Condensate to the Condensate Transfer Point and direct
contaminated condensate to OCF's treatment and/or disposal
facilities. Except for the meters, which shall be handled in
accordance with Section 3.10, OCF shall perform all repairs,
maintenance and replacements of such materials; provided that APC
shall pay all reasonable costs thereof, except for such costs
caused by any negligent act of an employee, agent or contractor
of OCF.
SECTION 3.5 Permits and Governmental Notices.
(a) APC, at its own cost and expense, will secure all
permits needed from time to time to deliver Steam to OCF
hereunder and will maintain the Facility in good operating
condition, except (i) as provided in Section 3.4(a) and (ii) to
the extent such permits are obtainable only by OCF. OCF shall
provide APC with such assistance in obtaining such permits as may
be reasonably requested by APC.
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(b) OCF will secure all permits needed from time to
time hereunder to deliver Condensate from the OCF Plant to the
Condensate Transfer Point and maintain the OCF Plant in good
operating condition. APC shall provide OCF with such assistance
in obtaining such permits as may be reasonably requested by OCF.
(c) APC shall reimburse OCF for all reasonable third
party consultant costs and expenses incurred by OCF in connection
with Sections 3.5(a) and (b). APC shall have the right to assist
such third party consultants, and OCF shall advise APC of such
consultant's activities.
(d) If either party shall receive any notice from any
governmental authority regarding the operation of the Facility or
the OCF Plant, it shall as soon as practicable deliver a copy of
such notice to the other party and to the Project Lender.
(e) If a Project Lender, or any third party assignee
of a Project Lender, shall acquire title to the Facility, said
Project Lender, or assignee, shall be entitled to the benefits
and be subject to the obligations of APC under this Section 3.5,
including the obligation to pay all of the costs and expenses of
obtaining permits, and including, without limitation, the right
to
operate the Facility for the Term under the Permits of APC and to
request OCF's assistance in obtaining permits of APC for
modifications, replacements or additions to the Facility.
SECTION 3.6 Standby Boilers.
(a) APC shall procure, operate, maintain, repair and
replace, at its own expense, the Standby Boilers. In addition,
APC shall be responsible for obtaining all permits necessary to
operate such Standby Boilers.
(b) Any Standby Boiler that is acquired during the
Term as a replacement for an existing Standby Boiler shall not be
required to have a rated steam generation capacity upon
installation in excess of the rated steam generation capacity of
the Standby Boiler being replaced unless necessary to provide OCF
with the steam quantity required under this Agreement; provided,
however, the rated steam generation capacity of the replacement
Standby Boiler measured at the Heat Transfer Point shall not have
to exceed seventy thousand (70,000) pounds per hour.
(c) OCF acknowledges and agrees that APC, in its sole
and absolute discretion, may elect to generate Steam for delivery
to the OCF Plant from either the combustion turbine portion of
the Facility or the Standby Boilers.
(d) APC acknowledges and agrees that OCF will continue
to maintain its existing steam generating capacity for a period
of one year after APC commences deliveries of Steam to OCF, after
which OCF will no longer maintain any steam generating capacity
and will become fully-dependent upon APC Steam deliveries.
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SECTION 3.7 Delivery Obligation and Unplanned
Shutdowns. APC shall be obligated to deliver Steam to OCF in
accordance with this Section 3.7, in the amounts requested by
OCF, up to the Maximum Delivery Obligation, as adjusted by
Section 3.2.
(a) APC shall commence deliveries of Steam to OCF upon
at least three (3) hours prior notice of the time when OCF
desires for APC to commence Steam deliveries. Such notice shall
be by telephone or in person, with written confirmation. OCF
shall not cease operating the OCF Boilers until APC commences
continuous delivery of Steam.
(b) If APC fails to deliver Steam to the Heat Transfer
Point at the time requested in the notice referred to in Section
3.7(a), APC shall pay OCF damages, if any, pursuant to Section
7.3.
(c) If APC has actual knowledge of any material
inadequacy or unplanned Material Interruption of the Steam supply
caused by APC, or actual notice of any material inadequacy or
unplanned Material Interruption of the Steam supply caused by or
originating on the premises of OCF, APC shall, as soon as
reasonably practicable, but in any and all events within one (1)
hour of such actual knowledge or notice, as the case may be,
notify OCF by telephone or in person (with written confirmation)
of such unplanned Material Interruption or material inadequacy;
provided, however, that APC shall not be liable for any damages
if the unplanned Material Interruption or material inadequacy is
caused by OCF, its agents or employees or is due to the failure
of any equipment within the control of OCF, its agents or
employees. If OCF has actual knowledge of the occurrence of any
material inadequacy or unplanned Material Interruption of the
Steam supply from APC, OCF shall, as soon as reasonably
practicable, but in all events within one (1) hour of the time
OCF had such actual knowledge, notify APC by telephone or in
person (with written confirmation) of such material inadequacy or
unplanned Material Interruption.
(d) For purposes of this Agreement, APC shall be
deemed to have made Steam available to OCF during all periods
when:
(i) The OCF Plant is shut down or unable to
accept Steam;
(ii) APC is unable to produce and/or deliver Steam
as a result of (A) OCF's failure to perform its obligations under
this Agreement, or (B) the negligence or willful misconduct of
OCF or its employees, agents or contractors; or
(iii) APC is unable to perform its
obligations under this Agreement due to an event of Force
Majeure.
SECTION 3.8 Planned Shutdowns. APC shall have the
right to shut down the operation of the Facility for maintenance
purposes whenever, in APC's reasonable judgment, such shutdown is
desirable to prevent an unscheduled outage, or to perform regular
or necessary maintenance, repair or replacement, or to prevent
damage to or loss of persons, property or equipment. Such
shutdowns shall have no effect on APC's obligations under Section
3.7 to
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deliver Steam to OCF; provided, however, APC shall have no
obligation to deliver Steam if the generation and/or delivery of
such Steam could, in the reasonable judgment of APC, cause
Material damage to or loss of persons, property or equipment, or
in any event, during an event of Force Majeure.
SECTION 3.9 Deliveries and Transfer of Title. Steam
deliveries and transfer of title thereto to OCF shall be made at
the valve and flange where the Facility steam delivery pipe
connects to the point in the OCF Plant described in Exhibit D
(the "Heat Transfer Point"). Title to the Condensate shall pass
to APC when such Condensate has passed into the lines owned or
operated by APC, which point of passage (the "Condensate Transfer
Point") is described in Exhibit E hereto.
SECTION 3.10 Measurement. APC shall provide or cause to
be provided equipment suitable for accurately measuring the
quantities of Steam delivered hereunder to the Heat Transfer
Point and Condensate delivered to the Condensate Transfer Point.
OCF shall provide access to such measurement systems to
representatives of APC at all reasonable times for the purposes
of reading and inspecting said systems and for all other purposes
required hereunder. Maintenance, testing and adjustment of the
instrumentation systems shall be the responsibility of APC. APC
shall have an independent third party to test and calibrate the
instrumentation systems by comparison with accurate standards
from time to time as requested by OCF, but no less frequently
than at intervals of twelve (12) months. The cost of all such
tests shall be borne by APC; provided, however, that if any
special meter test made at OCF's request shall disclose that the
meters are recording accurately, OCF shall reimburse APC for the
cost of such tests. Meters registering not more than two percent
(2%) above or below normal shall be deemed to be accurate.
If the measurement made by the meters during a test varies
by more than two percent (2%) and, therefore, is not deemed to be
accurate, then adjustment shall be made and the parties shall
make payments, as applicable, to correct any overpayment or
underpayment that was made as a result of the inaccurate
measurements. The adjustment shall be made for correcting all
measurements made for:
(a) The actual period during which inaccurate
measurements were made, if the period can be determined, or if not:
(b) The period immediately preceding the test equal to
one-half (1/2) the time from the date of the last previous test,
provided that in the event that the previous test shall have
occurred more than six (6) months prior to the current test, such
previous test shall be deemed to have occurred six (6) months
prior to the current test for purposes of this Section 3.10.
SECTION 3.11 Price of Steam. The price to be paid by OCF
to APC for Steam (the "Steam Cost") shall be Fifty Cents ($.50)
per thousand (1,000) pounds of Steam for Steam delivered during
Peak Hours and Two Dollars
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($2.00) per thousand (1,000) pounds of
Steam for Steam delivered during non-Peak Hours up to and
including the Maximum Delivery Obligation. For Steam quantities
above the Maximum Delivery Obligation the price shall be Two
Dollars ($2.00) per thousand (1,000) pounds during Peak Hours and
Five Dollars ($5.00) per thousand (1,000) pounds during non-Peak
Hours.
(a) As of January 1, of each Calendar Year, commencing
in 1994, the Steam Cost shall escalate in accordance with this
Section 3.11(a). The Steam Cost shall escalate by the greater of
(a) the annual percentage change in FPC's average monthly
inventory chargeout price of coal burned at Crystal River Units 1
& 2 (the "FPC Inventory Chargeout Rate") or (b) two percent (2%)
per year.
(b) The FPC Inventory Chargeout Rate represents the
total costs of purchasing, transporting, storing, and delivering
coal to FPC's Crystal River Units 1 & 2. The information
required to determine the monthly FPC Inventory Chargeout Rates
is published monthly in FPC's payment statement to APC ("FPC
Payment Statement"), wherein the FPC Inventory Chargeout Rate is
provided on the page titled "Calculation of Energy Payment," on
the line titled "CR 1 & 2 Coal (Form A-5) ($/MMBTU)." APC shall
provide OCI with the monthly FPC Inventory Chargeout Rate. If,
in any month, or sequence of consecutive months, during the
twelve (12) month period used in calculating the "AIC" portion of
the FPC Inventory Chargeout Rate the AIC is zero (0), the AIC
shall be deemed to be equal to the arithmetic average of the
monthly FPC Inventory Chargeout Rates for each of the relevant
twelve (12) months for which non-zero (0) values are available.
(c) In the event that (i) FPC ceases to disclose the
FPC Inventory Chargeout Rate as part of the FPC Payment
Statement, or (ii) FPC changes the method by which it calculates
the FPC Inventory Chargeout Rate or the components of such rate,
then OCI and APC shall attempt to agree on the appropriate
substitute reference(s) or means to determine the FPC Inventory
Chargeout Rate shall be submitted to binding arbitration in
accordance with Article 8.
SECTION 3.12 Payment. On or before the fifth (5th) day of
each calendar month, APC will render a written statement to OCF
showing the total quantity of Steam delivered during the
immediately preceding calendar month. Between the fifth (5th) and
the tenth (10th) days of the month, the parties shall calculate
the Steam Cost in accordance with the terms of this Agreement.
Payment shall be made by OCF to APC on or before the fifteenth
(15th) day of each month, or the fifth (5th) day after
calculation of the Steam Cost, whichever shall occur later.
Should OCF fail to make timely payment of all or part of any such
amount, such unpaid amount shall be a late payment amount, as to
which APC shall charge interest at a rate per annum equal to the
reference rate of Bank of America, NT&SA, or any successor bank
thereto, plus three percent (3%). The parties hereby agree that
such charge represents a fair and reasonable estimate of the
costs APC will incur by reason of such late payments by OCF.
SECTION 3.13 Taxes. If APC is required at any time to pay
any sales, transaction, production, gathering, severance, or any
other tax, excise or assessment on or measured by the Steam sold
hereunder or the receipts therefrom (not including income, excess
profits, capital stock, franchise or general property taxes), APC
shall notify OCF in writing, stating the amount thereof, and OCF
shall reimburse APC for the amount of any such tax, excise or
assessment.
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ARTICLE 4.
EVENTS OF DEFAULT
SECTION 4.1 Purchaser Event of Default. Subject to
Article 6, a Purchaser Event of Default under this Agreement
shall be deemed to exist upon the occurrence of any one or more
of the following events:
(a) Failure by OCF to accept, purchase and use in its
business operations the Annual Minimum Obligation in accordance
with OCF's obligations under Article 3 of this Agreement for any
reason without rectifying, at its own cost, the consequences of
such failure in such a manner as may be required or permitted by
the FERC, and in the time required by such Commission;
(b) Failure by OCF to make payment of any amounts due
to APC under this Agreement, which failure continues for a period
of ten (10) days after written notice of such nonpayment;
(c) Failure by OCF to perform fully any material
provision (including any material misrepresentation) not
described in Sections 4.1 (a) and (b), and (i) such failure
continues for a period of thirty (30) days after written notice
of such nonperformance or (ii) if OCF shall commence within such
thirty (30) days and shall thereafter proceed with all due
diligence to cure such failure, such failure is not cured within
such longer period (not to exceed ninety (90) days) as shall be
necessary for OCF to cure the same with all due diligence; or
(d) If OCF shall file, or consent to the filing
against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation
or to take advantage of any bankruptcy or insolvency law of any
jurisdiction; or OCF shall make an assignment for the benefit of
its creditors; or OCF shall consent to the appointment of a
custodian, receiver, trustee, or other officer with similar
powers, for substantially all its property, or be adjudicated
insolvent; or an order for relief shall be entered against OCF in
any case or proceeding for liquidation or reorganization or
otherwise to take advantage of any bankruptcy or insolvency law
of any jurisdiction, or ordering the dissolution, winding up or
liquidation of all or any part of OCF's property; or any petition
for any such relief shall be filed against OCF and shall not be
dismissed within ninety (90) days.
SECTION 4.2 Seller Event of Default. Subject to
Article 6, a Seller Event of Default under this Agreement shall
be deemed to exist upon the occurrence of any one or more of the
following events:
(a) Failure by APC to make payment of any amounts due
to OCF under this Agreement, which failure continues for a period
of ten (10) Days after written notice of such nonpayment;
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(b) Failure by APC to perform fully any material
provision (including any material misrepresentations) of this
Agreement not described in Section 4.2(a), and (i) such failure
continues for a period of thirty (30) Days after written notice
of such nonperformance or (ii) if APC shall commence within such
thirty (30) Days and shall thereafter proceed with all due
diligence to cure such failure, such failure is not cured within
such longer period (not to exceed ninety (90) Days) as shall be
necessary for APC to cure the same with all due diligence, or
(c) If APC shall file, or consent to the filing
against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation
or to take advantage of any bankruptcy or insolvency law of any
jurisdiction; or APC shall make an assignment for the benefit of
its creditors; or APC shall consent to the appointment of a
custodian, receiver, trustee, or other officer with similar
powers, for substantially all its property, or be adjudicated
insolvent; or an order for relief shall be entered against APC in
any case or proceeding for liquidation or reorganization or
otherwise to take advantage of any bankruptcy or insolvency law
of any jurisdiction, or ordering the dissolution, winding up of
liquidation of all or any part of APC property; or any petition
for any such relief shall be filed against APC and shall not be
dismissed within ninety (90) Days.
(d) Failure by APC to deliver Steam or have Steam
available for delivery to OCF, in accordance with the
requirements and provisions of this Agreement, for a continuous
period of One (1) year, which failure continues for a period of
thirty (30) Days after written notice of such failure.
SECTION 4.3 Remedies for Breach.
(a) Upon the occurrence of any Purchaser Event of
Default or Seller Event of Default, the nondefaulting party may,
at its option, and in addition to any other rights the
nondefaulting party may have at law or in equity, terminate this
Agreement by notice to the other party, or enforce, by all proper
and legal suits and other means, its rights hereunder, including,
without limitation, the collection of sums due hereunder, without
terminating this Agreement, and should it be necessary for such
party to take any legal action in connection with such
enforcement, the defaulting party shall pay such other party all
costs, including reasonable attorneys' fees so incurred, all
without prejudice to any remedies that might otherwise be used by
either party for recovery of arrearages of sums due hereunder,
damages as herein provided, or breach of covenant; subject,
however, to the provisions of Section 4.4.
(b) If both parties agree that a Purchaser Event of
Default or a Seller Event of Default has occurred, then the
nondefaulting party may proceed to exercise such remedies as it
may be entitled to in law or at equity, without proceeding to
arbitration under Article 8. However, if one party believes in
good faith that no such Event of Default has occurred, and
promptly informs the party asserting the existence of such Event
of Default of such belief, then the parties shall arbitrate such
good faith dispute under Article 8.
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SECTION 4.4 Lender Protections.
(a) Project Lender shall have the right, but not the
obligation, at any time prior to termination of this Agreement
and without payment of any penalty, to pay all of the sums due
hereunder, to provide any insurance, to pay any taxes and make
any other payments in connection with the OCF Plant and the
Facility, to make any repairs and improvements and do any other
act or thing required of APC hereunder, and to do any act or
thing which may be necessary and proper to be done in the
performance and observance of the covenants, conditions and
agreements hereof to prevent the termination of this Agreement.
All payments so made and all things so done and performed by
Project Lender shall be as effective to prevent a termination of
this Agreement as the same would have been if made, done and
performed by APC instead of by Project Lender.
(b) Notwithstanding any Seller Event of Default by APC
in the performance or observance of any covenant, condition or
agreement of this Agreement on the part of APC to be performed or
observed, OCF shall have no right to terminate this Agreement
even though a Seller Event of Default under this Agreement shall
have occurred and be continuing, unless and until OCF shall have
given Project Lender written notice of such Seller Event of
Default and Project Lender shall have failed to remedy such
default or to acquire title to the Facility and APC's interest in
this Agreement or to commence appropriate proceedings to acquire
said title and interest within the time specified by Section
4.4(c). In accordance with and subject to the terms of Section
10.11, OCF shall contemporaneously give Project Lender at Project
Lender's address given to OCF by Project Lender from time to time
a copy of any notice OCF serves on APC under Section 4.2.
Failure to provide Project Lender with such notice pursuant to
Section 4.2 contemporaneously with the giving of notice to APC
shall delay, for the period of time during which such failure
continues, the commencement of the time provided in Section
4.4(c) during which Project Lender has to cure such default.
(c) (i) If the Seller Event of Default involves the
failure to pay taxes or any other sum to be paid hereunder, then
Project Lender shall have twenty (20) Days longer than the cure
period given to APC pursuant to Section 4.2(a) to cure such
default.
(ii) If the Seller Event of Default is a
nonmonetary Seller Event of Default, under Section 4.2(b), that
can be remedied by Project Lender without obtaining possession of
the Facility, then Project Lender shall have seventy-five (75)
Days longer than the cure period given to APC pursuant to Section
4.2(b) to cure such default. If the Seller Event of Default
cannot be cured within such seventy-five (75) Day period, then
the Seller Event of Default shall be deemed cured on completion
if within said seventy-five (75) Day period, (A) Project Lender
shall have commenced to cure said Seller Event of Default and
thereafter diligently prosecutes such cure to completion, and (B)
Project Lender shall assume and perform all other obligations of
APC susceptible of performance by Project Lender.
(iii) If the Seller Event of Default is a
nonmonetary default that only can be remedied by Project Lender
upon obtaining possession of the Facility, then Project Lender
shall have one hundred twenty (120) Days longer than the cure
period given to APC under this
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Agreement to cure such Seller
Event of Default. If the Seller Event of Default cannot be cured
within such time period, then the Seller Event of Default shall
be deemed cured if (A) within sixty (60) Days after the
expiration of the cure period given to APC to cure such default,
Project Lender shall have commenced foreclosure or other
appropriate proceedings in the nature thereof, (B) Project Lender
shall diligently and continuously prosecute any such proceedings
to completion, and (C) Project Lender shall assume and perform
all other obligations of APC susceptible of performance by
Project Lender.
(d) If Project Lender is prohibited by any process or
injunction issued by any court or by reason of any action by
reorganization or insolvency proceedings involving APC from
commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof, the times specified in this
Section 4.4 for commencing or prosecuting such foreclosure or
other proceedings shall be extended for the period of such
prohibition; provided, however, Project Lender shall have fully
cured any Seller Event of Default involving the payment of any
monetary obligations of APC under this Agreement and shall
continue to pay such monetary obligations as and when the same
fall due; provided, further, that Project Lender shall diligently
proceed to pursue foreclosure or other appropriate proceedings
required to be commenced under this Section 4.4.
(e) Should this Agreement be terminated for any reason
other than a default of APC which has not been cured by APC or
Project Lender, if such default is susceptible to cure by Project
Lender, OCF shall, upon written request by Project Lender to OCF
received within sixty (60) Days after such termination, execute
and deliver a new Thermal Energy Sales Agreement with the Project
Lender for the remainder of the Term with the same covenants,
conditions and agreements (except for any requirements which have
been satisfied by APC prior to termination) as are contained
herein. OCF's obligation to enter into such new Thermal Energy
Sales Agreement with the Project Lender shall be conditioned as
follows: (i) Project Lender has remedied and cured all monetary
defaults hereunder and has remedied and cured or has commenced
and is diligently completing the cure of all nonmonetary defaults
of APC susceptible to cure by any party other than by APC, (ii)
that if more than one Project Lender requests such new Thermal
Energy Sales Agreement the holder of the most senior lien shall
prevail, and (iii) that Project Lender pays all costs and
expenses of OCF incurred in connection with the preparation and
execution of such new Thermal Energy Sales Agreement and any
conveyances related thereto. The obligation of OCF to execute a
new Thermal Energy Sales Agreement with Project Lender and to
comply with all other provisions of this Section 4.4 shall also
apply if this Agreement shall be rejected or disaffirmed in any
bankruptcy, debtor rehabilitation, reorganization or insolvency
proceeding affecting APC.
(f) OCF and APC shall cooperate in including in this
Agreement by suitable amendment from time to time any provision
which may be requested by any proposed Project Lender, for the
purpose of implementing the Project Lender protection provisions
of this Agreement and allowing such Project Lender reasonable
means to protect or preserve the lien of any mortgage, deed of
trust, or security interest on the occurrence of a default under
the terms of this Agreement; provided, however, that any such
amendment shall not in any way affect the Term hereby demised nor
affect adversely in any material respect any rights of OCF under
this Agreement.
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SECTION 4.5 Specific Performance and Injunctive
Relief. Without first having to proceed to arbitration pursuant
to Article 8 hereto each party shall be entitled to a decree
compelling specific performance with respect to, and shall be
entitled, without the necessity of filing any bond, to the
restraint by injunction of, any actual or threatened breach of,
any material obligation of the other party under this Agreement.
SECTION 4.6 Waiver of Breach. Either party may
waive a breach of any obligation arising hereunder by the other
party, provided that no waiver by or on behalf of either party of
any breach of any of the covenants, provisions, conditions,
restrictions or stipulations contained in this Agreement shall
take effect or be binding upon such party unless the waiver is
reduced to writing and executed by such party, and any such
waiver shall be deemed to extend only to the particular breach
waived and shall not limit or otherwise affect any rights that
such party may have with respect to any other or future breach.
ARTICLE 5.
CONTINUATION OF OCF PLANT AND THE FACILITY
SECTION 5.1 Qualifying Facility Status. OCF
acknowledges that it is essential that the OCF Plant remain in
operation and accept Steam from the Facility in order for the
Facility to retain its Qualifying Facility status. OCF
acknowledges that if the Facility should lose its Qualifying
Facility status as a result of OCF failing to accept the Annual
Minimum Obligation, APC would incur substantial losses.
SECTION 5.2 Shutdown of OCF Plant.
(a) Except for the provisions of Article 6 (Force
Majeure), OCF shall provide APC with written notice (the
"Termination Notice") at least eighteen (18) months prior to the
date (the "Termination Date") that OCF discontinues or materially
reduces the operation of the OCF Plant for at least a consecutive
one (1) year period. In the event OCF effects such a
discontinuation or material reduction, OCF shall use its best
efforts to (a) find a successor to own and/or operate the OCF
Plant and utilize Steam in sufficient quantities for the Facility
to maintain its Qualifying Facility status, or (b) find an
alternative user of thermal energy close enough in proximity to
the Facility so that Facility may provide such thermal energy on
a reasonably economical basis and on terms and conditions
reasonably satisfactory to APC and the Project Lender. If OCF is
able to locate such a successor to own and/or operate the OCF
Plant or locate an alternative user of thermal energy within six
(6) months of the delivery of the Termination Notice, then OCF
shall pay, as liquidated damages, any additional costs that APC
may incur with providing Steam or, if applicable, thermal energy
to such party. If OCF is unable to find such a successor to own
and/or operate the OCF Plant or an alternative user of thermal
energy within six (6) months of delivery of the Termination
Notice, then APC, at its sole option, shall have the right either
to (x) lease the OCF Plant from OCF for the remainder of the Term
at a rate equal to fifty percent (50%)
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of the fair market rental
(as applicable) value of the OCF Plant, which value shall be
determined by taking the average value determined by three
appraisers (one selected by APC, one selected by OCF, and one
selected by the two appraisers), (y) have OCF provide the land
necessary and suitable for an alternative steam user, subject to
the title to such land being acceptable to APC, and pay APC One
Million Dollars ($1,000,000) as liquidated damages, or (z) pay
APC One Million Dollars ($1,000,000) as liquidated damages to be
used to connect the Facility to an alternative thermal energy
user. If APC elects option (y), the maximum amount of the
liquidated damages shall be reduced (but not below zero) by the
fair market value of the land conveyed to APC. Unless the
parties are able to agree on the fair market value for such land,
the fair market value of such land shall be determined in
accordance with the same procedure as set forth above for
determining the fair market rental value of the OCF Plant. The
One Million Dollar ($1,000,000) liquidated damages cap set forth
in this Section 5.2 shall change, effective each January 1st
during the Term, by the same percentage change as occurred for
the prior Calendar Year for the Consumer Price Index. If OCF
provides the Termination Notice at least three (3) years prior to
the Termination Date, the One Million Dollar ($1,000,000)
liquidated damages cap, as changed in accordance with this
Section 5.2(a), shall be reduced by fifty percent (50%).
(b) If, prior to the delivery of the Termination
Notice, APC enters into an agreement to sell Steam to a third
party that is considered by the Project Lender to be an
acceptable replacement Steam user if OCF ceases purchasing Steam,
and if OCF subsequently is required to pay liquidated damages
under Section 5.2(a), then the liquidated damages cap set forth
in Section 5.2(a) shall be reduced to an amount determined by the
following formula:
X = A x B/(B+C)
WHERE
X = The reduced liquidated damages cap.
A = The liquidated damages cap for the Calendar Year
that OCF is obligated to pay liquidated damages.
B = The Annual Minimum Obligation in the Calendar Year
that OCF is obligated to pay liquidated damages.
C = The minimum annual quantity of Steam (in the Calendar
Year that OCF is obligated to pay liquidated damages)
that the third party is obligated to take and pay for
under a contract between APC and such third party.
SECTION 5.3 Damage to OCF Plant. If the OCF Plant
is damaged or destroyed by any Casualty, OCF shall repair and
restore it as nearly as reasonably practicable to its value,
condition and character immediately prior to such damage or
destruction, subject to such changes or alterations as may be
made at OCF's election in conformity with and subject to APC
reasonable approval with respect to changes or alterations
affecting the Facility. Such restoration shall be
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commenced and
prosecuted with due diligence and dispatch and in good faith. All
proceeds from insurance with respect to a Casualty to the OCF
Plant shall be applied to effect such repair and restoration. OCF
shall promptly advise APC of any Casualty to the OCF Plant.
SECTION 5.4 Condemnation of OCF Plant. If a
Substantial Taking occurs, OCF shall use the proceeds from such
Substantial Taking to acquire a site adjacent to the APC Plant
Site and to rebuild the OCF Plant as nearly as reasonably
practicable to its value, condition and character immediately
prior to such Substantial Taking, subject to such changes or
alterations as may be made at OCF's election in conformity with
and subject to APC's reasonable approval with respect to changes
or alterations affecting the Facility. Such rebuilding shall be
consummated and prosecuted with due diligence and dispatch and in
good faith. All proceeds from such Substantial Taking shall be
applied to effect such rebuilding. OCF shall promptly advise APC
of any proposed or actual Substantial Taking, shall offer APC the
opportunity to participate in any proceedings involving such
Substantial Taking, and shall not enter into any final agreement
establishing the amounts to be paid as a result of such
Substantial Taking without the prior written consent of APC,
which shall not be unreasonably withheld. If OCF is unable to
acquire a site adjacent to the APC Plant Site after a Substantial
Taking, OCF and APC shall negotiate in good faith a distribution
of any proceeds received as a result of the Substantial Taking
based upon the losses suffered or reasonably expected to be
suffered by each party resulting from such Substantial Taking.
SECTION 5.5 Continuation of Facility. Subject to
approval of the Project Lender, if APC shall discontinue the
operation of the Facility for a continuous two (2) year period,
OCF shall have the right to acquire the Facility for the balance
due under any financing agreement between APC and the Project
Lender.
ARTICLE 6.
FORCE MAJEURE
SECTION 6.1 Definition. Force Majeure shall mean an
event or occurrence that is not reasonably foreseeable by a
party, is beyond its reasonable control, and is not caused by its
negligence or lack of due diligence, including, but not limited
to, natural disasters (including, but not limited to, freezes,
diseases and other natural events which cause an extraordinary
reduction in the citrus available for processing in the OCF
Plant), fire, lightning, wind, perils of the sea, flood,
explosions, acts of God or the public enemy, failure of fuel
supply to the Facility, strikes, lockouts, vandalism, blockages,
insurrections, riots, war, sabotage, action of a court or public
authority, or accidents to or failure of equipment or machinery.
Notwithstanding anything else herein to the contrary, changes in
market conditions shall not constitute Force Majeure.
SECTION 6.2 Effect. Article 5 to the contrary
notwithstanding, and subject to Section 6.4, in the event that
either APC or OCF is rendered unable, by reason of an event of
Force Majeure, to perform, wholly or in part, any obligation or
commitment set forth in this Agreement, then, provided such party
gives prompt written notice describing the particulars of such
event,
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including, but not limited to, the nature of the
occurrence and its expected duration, and continues to furnish
timely, regular reports with respect thereto during the period of
the Force Majeure, the obligations of both parties, except for
obligations to pay money, shall be suspended to the extent and
for the period of such Force Majeure condition; provided,
however, that (a) the suspension of performance is of no greater
scope and of no longer duration than is required by the Force
Majeure and (b) the party whose performance is being excused
shall use its reasonable efforts to perform its obligations
hereunder and remedy its inability to perform. Both parties agree
and understand that maintaining the Qualifying Facility status of
the Facility is of primary importance to both parties, and if an
event of Force Majeure occurs that impacts on the continuation of
that Qualifying Facility status, APC may take such reasonable
steps as it deems necessary to protect that status.
SECTION 6.3 Termination for Force Majeure. In the
event the Power Purchase Agreement is terminated during the
continuance of an event of Force Majeure, then APC may terminate
this Agreement without any liability therefor upon Three Hundred
and Sixty-Five (365) Days' prior written notice.
SECTION 6.4 Natural Disasters Impacting the Citrus
Crop. By way of clarification of the sections of Article 6
contained above, where there is an extraordinary freeze, disease
or other natural event causing an extraordinary reduction in the
citrus crop (a "Natural Disaster Force Majeure"); (i) to the
extent that the Natural Disaster Force Majeure causes continuing
extraordinary adverse effects on the citrus crop (e.g., by
causing damage to the trees which affects the next year's crop),
the Natural Disaster Force Majeure event shall be deemed to
continue; (ii) OCF shall nevertheless be obligated to obtain the
appropriate pro-rata share of the citrus crop; (iii) OCF shall
cooperate with APC in finding an additional/alternative Steam use
or user for the OCF Plant to the extent that it is not being used
to process the appropriate pro-rata share of the citrus crop;
(iv) OCF shall make the OCF Plant available for such
additional/alternative steam user on a minimal-rent basis and
otherwise upon reasonable contractual terms; and (v) OCF shall
cooperate with APC in obtaining a waiver from the FERC from the
efficiency and use standards required for Qualifying Facilities.
ARTICLE 7.
INDEMNIFICATION
SECTION 7.1 Reciprocal Indemnification. Each of APC
and OCF, respectively, as indemnitor, will defend, protect,
indemnify, and hold harmless the other party, each of the other
party's Affiliates, the successors and assigns of such other
party and any of its Affiliates, and the shareholders, officers,
directors, partners, employees and agents of such other party and
any of its Affiliates, as indemnitees, from and against any and
all losses, damages or expenses (excluding consequential losses,
damages and expenses) and liability suffered or paid as a result
of any and all claims, demands, suits, causes of action,
proceedings, judgments and liabilities (including reasonable
counsel fees incurred in litigation or otherwise) assessed,
incurred or sustained by or against any such indemnitees with
respect to or resulting from injuries to or death of persons,
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including, but not limited to, employees of any indemnitees, and
damage to or destruction of property, including, but not limited
to, the property of any indemnitees, arising out of, or in any
way connected with, the failure to comply with any applicable
law, rule or regulation of any authority having proper
jurisdiction, or the performance or non-performance of any
provision of this Agreement, or any operations conducted by
indemnitor, its agents, or employees, excepting only such injury,
death, damage or destruction as may be caused by the gross
negligence or willful misconduct of the indemnitee, its agents,
or employees.
SECTION 7.2 Duty to Defend. Indemnitor, at its sole
cost and expense, shall be responsible for defending any claim,
demand, suit, cause of action or proceeding covered by the
indemnities set forth in Section 7.1. Indemnitor shall have the
right to control the defense of any claim, demand, suit, cause of
action, or proceeding, provided that indemnitor shall first
confirm in writing to indemnitee that such claim is within the
scope of the indemnities contained in Section 7.1 and that
indemnitor shall pay all amounts required to be paid in respect
of such claim, demand, suit, cause of action or proceeding. The
indemnitee shall have the right, but not the obligation, at its
sole cost and expense, to participate in the defense of any such
claim, demand, suit, cause of action or proceeding. Indemnitees
shall have the right at any time, by notice to indemnitor, to
assume exclusive control of the defense of any claim, demand,
suit, cause of action or proceeding insofar as the indemnitee is
concerned, at the sole cost and expense of indemnitor, if (a)
indemnitor fails to defend diligently such claim, demand, suit,
cause of action or proceeding, (b) there is a conflict in the
interests of indemnitor and indemnitee with respect to such
claim, demand, suit, cause of action or proceeding, or (c) at any
time during the tendency of such claim, demand, suit, cause of
action or proceeding indemnitor shall disaffirm its
responsibility for the claim involved. Indemnitor shall pay all
reasonable costs that may be incurred by indemnitee in such
defense or in enforcing this indemnity, including, without
limitation, reasonable attorneys' fees, within ten (10) days
after request therefor.
Indemnitor shall have the right to settle any claim, demand,
suit, cause of action, or proceeding which results only in the
payment of money. Indemnitor shall have no right, without the
prior written consent of indemnitee, to settle any claim, demand,
suit, cause of action, or proceeding which claim, demand, suit,
cause of action or proceeding or settlement thereof, involves
nonmonetary obligations of indemnitee.
SECTION 7.3 Loss of Citrus and Citrus-Related
Products, Property Damage and Incremental Operating Costs.
Without in any way limiting the generality of any indemnity
hereunder, and subject to the limitations and requirements of
Section 3.7, APC shall specifically indemnify and hold harmless
OCF from any verifiable and auditable out-of-pocket loss from a
reduction in value of any products of OCF, any verifiable and
auditable property damage, or verifiable and auditable out-of-
pocket incremental operating costs incurred, due to any material
inadequacy or unplanned Material Interruption exceeding the one
(1) hour time period specified in Section 3.7(c); provided,
however, OCF shall use its best efforts to minimize or reduce any
potential loss, damage, expense or cost that may be subject to
the indemnity provided under this Section 7.3. OCF agrees to
obtain at APC's expense (i.e., the difference between the
premiums for OCF's present business interruption insurance which
provides for a twenty-four (24) hour waiting
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period and the cost
of the policy hereunder) additional business interruption
insurance, if commercially available and obtainable at reasonable
rates, that will insure OCF for any losses incurred after a
twelve (12) hour waiting period, subject to the other limitations
and requirements of Section 3.7. Any such losses incurred by OCF
shall be deemed reduced or, if applicable, eliminated to the
extent that OCF has insurance coverage applicable to such losses,
or to the extent such losses are attributable to the negligence
or willful misconduct of OCF, its agents or employees.
Notwithstanding anything else herein to the contrary, APC's
maximum liability under this Section 7.3 shall be Fifty Thousand
Dollars ($50,000) per occurrence.
ARTICLE 8.
ARBITRATION
SECTION 8.1 Governing Provision. Any controversy or
dispute arising under, out of, or in connection with the making
or performance or the enforcement or interpretation of, this
Agreement shall be subject to arbitration in accordance with the
provisions of the Florida Arbitration Code, Fla. Stat. 682.01,
et. seq., as amended from time to time, except as otherwise
provided in this Article 8. Notwithstanding the foregoing, or any
other provision to the contrary contained in this Article 8,
neither party shall be compelled to arbitrate any claim or
dispute relating to a breach of this Agreement or the performance
or non-performance of any party's obligations hereunder brought
by the other party, if the sole remedy sought for such claim is
injunctive relief and reasonable attorneys' fees and costs
related thereto, but such other party may have full recourse to
the courts to petition for such injunctive relief.
SECTION 8.2 Demand for Arbitration. The parties
shall negotiate in good faith and attempt to resolve any dispute
which may develop hereunder; provided, however, in the event that
the parties are unable to resolve a dispute hereunder, either
party may serve upon the other a notice of intention to demand
that such matter be arbitrated by first giving written notice of
the existence of a dispute and a detailed description of its
nature. If one party refuses to meet to resolve the issue, then
only the other party may demand arbitration of that issue. I f
within not less than ten (10) days, but not more than twenty-five
(25) days, after the notice of intention to demand arbitration
the parties are still unable to resolve their dispute, then
either party may give a written notice to the other party
demanding arbitration.
SECTION 8.3 Selection of Arbitrators. The party
giving the notice shall request a list of seven arbitrators from
the American Arbitration Association in Tampa, Florida ("AAA").
The arbitration panel shall include (a) an attorney licensed to
practice law in the State of Florida (b) a person knowledgeable
with respect to the operation of steam generation and process
heat equipment and the measurement and utilization of steam and
process heat in manufacturing processes in the citrus processing
industry, and (c) a third person meeting the qualifications set
forth in clauses (a) or (b). The following criteria shall govern
the selection of arbitrators and shall be communicated to AAA:
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(x) None shall be an officer, director, employee,
partner, or otherwise affiliated with either party or any
Affiliate thereof.
(y) Each shall have the education, experience and
capabilities demonstrating an ability to comprehend and analyze
complex factual and contractual relationships and uncertainties.
Each party shall take turns selecting one of the names on
the list for elimination until only three (3) arbitrators are
left, and those persons shall arbitrate the dispute. OCF shall
have the first right to strike the name of an arbitrator the
first time the parties resort to arbitration, APC shall have the
first right to strike the second time the parties resort to
arbitration, and the parties shall alternate which one strikes
the first name thereafter. Each party shall exercise its right to
strike a name by the end of the next Business Day after receipt
of the notice of the other party's action to strike a name from
the list. A party failing to strike a name on its turn shall lose
its turn and the other party may proceed to strike another name.
SECTION 8.4 Hearing. The arbitration hearing shall
take place in Tampa, Florida no sooner than thirty (30), but no
more than sixty (60), days after the selection of the
arbitrators. The arbitrators shall give written notice of the
time and place of the hearing to both parties at least ten (10)
days prior to the hearing date. The arbitrators shall not be
authorized to alter, extend or modify the terms of this
Agreement. Upon rendering a decision, the arbitrators shall
promptly execute and acknowledge the decision and deliver a copy
to each party.
SECTION 8.5 Effect of Decision. The decision or
award of the arbitrator shall be final and binding on both
parties. Such decision or award may be enforced in any court
having jurisdiction of the party against whom enforcement is
sought. A judgment confirming the award may be rendered by the
circuit court in and for Hillsborough County, Florida, which the
parties agree is the court of appropriate jurisdiction. Failure
to comply with the arbitrators' decision hereunder shall
constitute an Event of Default entitling the prevailing party to
the remedies set forth in Article 4, in addition to those which
such party may otherwise be entitled to at law or in equity.
SECTION 8.6 Performance Pending Decision. Pending
resolution of any controversy or dispute hereunder, performance
by each party shall continue so as to maintain the status quo
prior to notice of such controversy or dispute. Resolution of any
controversy or dispute involving the payment of money by one
party to the other shall include payment of interest at a rate
per annum equal to the reference rate of Bank of America NT&SA,
or any successor bank thereto, in effect at the time the
adjudication is made, plus three percent (3%) (subject to and
limited by applicable usury laws), for the period commencing when
payment should have been made and ending on the date payment is
actually made.
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ARTICLE 9.
INSURANCE
SECTION 9.1 Coverage. As to all activities
hereunder, the following insurance shall be obtained from an
insurance carrier rated "A" by Bests or having an equivalent
rating by another mutually agreed-upon insurance rating service
and maintained in full force and effect for the benefit and
protection of the parties under this Agreement:
(a) Workers' Compensation Insurance. OCF and APC
shall carry and maintain in effect, with respect to its
employees, if any, Workers' Compensation Insurance and Employer's
Liability Insurance that equals or exceeds statutory requirements
in the State of Florida.
(b) Comprehensive General Liability. OCF and APC
shall carry and maintain in effect comprehensive general
liability insurance, including contractual liability insurance,
providing for a minimum of Five Million Dollars ($5,000,000)
combined single limit coverage for death, bodily injury, and
property damage arising from any one occurrence. Each party shall
name the other party as an additional insured under such
insurance.
(c) Automobile Liability. OCF and APC shall carry and
maintain in effect business automobile liability insurance
covering all owned, non-owned and hired automobiles, and shall
include Uninsured and Underinsured Motorists, with minimum
insurance limits of Five Million Dollars ($5,000,000) for bodily
injury and property damage arising from any one occurrence. This
should be in a "stacked" format if commercially available and if
there are five or more vehicles owned by each respective party.
In the event there are less than five vehicles or unstacked
limits are commercially unavailable, then the Five Million Dollar
coverage ($5,000,000) may be satisfied by adding this coverage to
the umbrella or excess liability policy following the coverage on
the primary automobile liability.
(d) Plant and Facility Insurance. OCF shall carry and
maintain all risk property damage insurance covering the
replacement cost of the OCF Plant. APC shall carry and maintain
all risk property damage insurance covering the replacement cost
of the Facility.
(e) Policy Terms. Each liability policy described
above which a party is required to carry shall be primary,
without right of contribution from any other insurance which may
be carried by either party. Each liability policy shall only
include coverages related to activities covered under this
Agreement. All insurance policies shall provide that the
insurance may not be canceled except upon thirty (30) Days prior
written notice to each party, except in the case of nonpayment,
in which case upon ten (10) Days prior written notice to each
party.
(f) Self-Insurance. If either party utilizes self-
insurance, or a self-insured retention to satisfy the insurance
requirements of this Agreement, the other party shall be notified
of such a decision and the amount of such self-insurance or
retention shall be secured by letter(s) of
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credit, cash or other
mutually agreed upon, generally accepted financial methods of
securing such self-insurance retentions. Such security shall
remain in place at all times that the party continues such self-
insurance or self-insured retention. The amount of such security
shall be equal to the amount of such self-insurance or retention.
SECTION 9.2 Certificate. Each party shall provide
the other party with written evidence of the other party's
procurement of the insurance required under Section 9.1, which
evidence shall be in the form of an insurance certificate
specifying the amount of coverage and expiration dates of all
policies in effect. Each such certificate shall indicate that no
insurance will be canceled or materially changed during the Term
without thirty (30) Days prior written notice to each party. No
party shall perform any act that would invalidate the policies
which the parties are obligated to obtain and maintain hereunder,
or to increase the premiums payable under such policies. Should
any party at any time neglect or refuse to provide any insurance
required hereunder, or should any insurance be canceled, the
other party shall have the right, but not the obligation, to
procure the required insurance and the party failing to obtain
and/or maintain the required insurance shall reimburse the other
party for the premiums thereto and any claim payments and defense
costs associated with the loss of such coverage.
SECTION 9.3 Waiver of Subrogation. All policies
obtained hereunder shall have a provision mutually waiving rights
of subrogation by the insurer against the parties hereto.
ARTICLE 10.
MISCELLANEOUS
SECTION 10. 1 Assignment and Subletting.
(a) APC shall have the right to assign its interest in
this Agreement (including, without limitation, any assignment by
operation of law), and APC shall be fully and completely
discharged from its obligations hereunder, provided that such
assignee shall assume and be bound by the terms of this
Agreement, and is reasonably deemed by OCF to be capable of
performing under this Agreement; provided, however, APC shall
have the right, without first having to obtain OCF's consent, to
assign its interest under this Agreement in connection with (i)
any assignment, collateral assignment or lease of this Agreement
by APC to any Project Lender (provided that any collateral
assignment by APC of its rights and obligations under this
Agreement to any Person shall not operate to diminish the
obligations of APC hereunder); and (ii) any assignment of this
Agreement to Orange Cogeneration Limited Partnership, a Delaware
limited partnership, or any Affiliate thereof. Any Project
Lender which has assumed APC's interest hereunder may transfer or
assign this Agreement, sublease or knowingly permit the sublease
of the Facility, without the prior written consent of OCF, and
any purchase money mortgage delivered in connection therewith
shall
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be entitled to the benefit of provisions benefiting Project
Lender hereunder, and any transferee from such Project Lender or
any purchaser at a foreclosure sale may do the same. Any Project
Lender or purchaser at a foreclosure sale shall have no liability
for the period after it assigns or transfers this Agreement.
(b) Nothing in this Agreement shall prevent OCF from
mortgaging, pledging, encumbering or hypothecating this Agreement
provided that any such mortgage, pledge, encumbrance or
hypothecation shall be made subject to this Agreement, and shall
not operate to diminish the obligations of OCF hereunder.
(c) Anything herein to the contrary notwithstanding,
OCF shall have the right to assign its interest in this Agreement
(including, without limitation, any assignment by operation of
law), and OCF shall be fully and completely discharged from its
obligations hereunder, provided that such assignee shall assume
and be bound by the terms of this Agreement, and is reasonably
deemed by APC and the Project Lender to be capable of performing
under the terms of this Agreement.
SECTION 10.2 Notices Concerning APC's Lenders. APC may,
from time to time, without notifying or obtaining the consent of
OCF, hypothecate, mortgage, pledge or alienate APC's rights under
this Agreement to a Project Lender. APC shall give prompt written
notice to OCF of:
(a) its entering into a credit agreement, and the
total amount of funds available thereunder, or of the nature of
the transaction;
(b) any amendments to said credit agreement; and
(c) the Project Lender's address for notices
hereunder; provided, however, that any failure by APC to give
such notice shall not be grounds for denying the Project Lender
the rights and protections it may have.
SECTION 10.3 Further Assurances. Each party further
agrees to execute, acknowledge, and deliver any further documents
or instruments that are necessary or desirable to carry out the
terms of this Agreement or that are reasonably requested by the
other party, or any Project Lender, including, without
limitation, a consent or consents to assignment or similar
documents, and will take any other action reasonably necessary
and proper to carry out the terms and provisions of this
Agreement or consistent with the terms of this Agreement that may
reasonably be requested by the other party, or any Project
Lender, for the purpose of consummating the transactions
described in this Agreement, including, without limitation,
cooperating in obtaining any and all required approvals,
consents, permits and authorizations.
SECTION 10.4 Successors and Assigns. All of the terms and
provisions of this Agreement and the parties' respective rights
and obligations hereunder shall be binding upon and inure to the
benefit of the parties hereto and their respective and permitted
successors and assigns.
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SECTION 10.5 Amendments. No provision of this Agreement
may be changed, waived, modified, discharged, or terminated
except by a written instrument executed by the parties hereto.
SECTION 10.6 Entire Agreement. This Agreement and the
documents delivered in connection with, and/or expressly referred
to in this Agreement, contain the entire agreement and
understanding between the parties with respect to the subject
matter of this Agreement and supersede all prior oral or written
negotiations, understandings and agreements. Neither party will
be bound by or will be deemed to have made any representations,
warranties or commitments except those contained in this
Agreement or in the documents delivered pursuant hereto.
SECTION 10.7 Severability. Should any provision of this
Agreement for any reason be declared invalid or unenforceable,
such decision shall not effect the validity of the remaining
portions, which shall nevertheless remain in full force and
effect as if this Agreement had been executed with the invalid
portion thereof eliminated. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other
circumstances. If any provision of this Agreement is
unenforceable under the law prevailing at a subsequent time, then
such originally unenforceable provision shall be deemed to take
effect at the time it becomes enforceable. As used herein, the
term "unenforceable" is used in its broadest and most
comprehensive sense and includes the concepts of void or
voidable.
SECTION 10.8 Waiver. Either party's delay or failure to
enforce or exercise any provision of this Agreement or rights
existing hereunder shall not in any way be construed as or
constitute a waiver of any such provision or right, or prevent
that party thereafter from enforcing each and every other
provision or right of this Agreement.
SECTION 10.9 Termination and Survival. This Agreement
shall terminate (i) upon expiration of the Term, (ii) in
accordance with Article 4, or (iii) in accordance with Section
6.3. Any provisions, agreements, warranties, or representations
contained in this Agreement which are expressly or by implication
to come into or remain in force following the termination or
expiration of this Agreement (including with limitation, Section
4.4(e), Article 7, Article 8, and Sections 10.9, 10.14, and
10.15) shall survive such termination or expiration.
SECTION 10.10 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original instrument and which shall have the same force and
effect as the original instrument, and all of which shall
constitute one and the same agreement.
SECTION 10.11 Notices. Except as provided herein to the
contrary, any notice or other communication required or permitted
hereunder sell be in writing, and shall be deemed to have been
sufficiently given when delivered in person to an officer of
either party (or, if such party is a partnership, to a partner or
a corporate general partner of such partnership), by facsimile
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(receipt of which is verified by telephone), by overnight
carrier, or when deposited in the United States mails, postage
prepaid, for mailing by express, certified or registered mail,
return receipt requested, addressed as follows:
If to OCF: Orange-Co of Florida, Inc.
X.X. Xxx 0000
0000 X.X. Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx 00000-0000
Attention: President
If to APC: X.X. Xxxxx, Ltd.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Or to such other person or address as the respective party may
specify from time to time in a notice duly given as provided
herein.
SECTION 10.12 Choice of Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA, WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
RELATING TO CONFLICTS OF LAW.
SECTION 10.13 Attorneys' Fees. In the event any dispute
between the parties to this Agreement should result in litigation
or any other proceeding (including, without limitation,
arbitration), the prevailing party shall be reimbursed by the
nonprevailing party for all reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees,
incurred by the prevailing party in connection with such
litigation or other proceeding and any appeal or enforcement
thereof.
SECTION 10.14 Exclusion of Consequential Damages.
Notwithstanding anything else herein to the contrary, neither
party shall be liable to the other for consequential damages;
provided, however, the damages provided for in the last sentence
of each of Sections 5.2(a) and 7.3 shall not be deemed to fall
within this exclusion.
SECTION 10. 15 Representations and Warranties.
(a) In order to induce APC to enter into this
Agreement, OCF represents and warrants that:
(i) It is an entity duly organized and validly
existing under the laws of its state of organization and has full
organizational power and authority to execute, deliver and
perform this Agreement. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary
organizational action on its part to be performed. This Agreement
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constitutes its valid and legally binding obligation and is
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general
application;
(ii) The execution, delivery and performance
of this Agreement will not violate or conflict with any provision
of law, regulation or order or any court or other agency of
government, its constituting documents, or any indenture,
agreement or other instrument to which it may be a party, or by
which it may be bound, or be in conflict with, result in a
breach of, or constitute (with due notice or lapse of time or
both) a default under or result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever, upon
any of its property or assets pursuant to any such indenture,
agreement or instrument;
(iii) It has good title to the OCF Plant,
free and clear of all liens, charges or encumbrances of any
nature whatsoever, except as set forth in Exhibit F.
(iv) The consolidated balance sheets of OCF
and its subsidiaries as of September 30, 1992 and the related
consolidated statements of income and cash flows for the fiscal
year then ended, copies of which have been furnished to APC,
fairly present the consolidated financial condition of OCF at
such date and the consolidated results of operations for the
period ended on such date, all in accordance with generally
accepted accounting principles consistently applied. Since
September 30, 1992, there has been no material adverse change in
OCF's consolidated financial condition or results of operations
and no event or condition has occurred which could impair OCF's
ability to perform its obligations under this Agreement; and
(v) There is no existing pending or
threatened litigation or governmental investigations which has
not been disclosed to APC in writing prior to the date of this
Agreement which could reasonably be expected to materially
adversely affect the Facility or the project related thereto,
including the development, construction, completion, project
financing or operation of such project.
(b) In order to induce OCF to enter into this
Agreement, APC represents and warrants that:
(i) It is an entity duly organized and validly
existing under the laws of its state of organization and has full
organizational power and authority to execute, deliver and
perform this Agreement. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary
organizational action on its part to be performed. This Agreement
constitutes its valid and legally binding obligation and is
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general
application; and
(ii) The execution, delivery and performance of
this Agreement will not violate or conflict with any provision of
law, regulation or order of any court or other agency of
government, its constituting documents, or any indenture,
agreement or other instrument to which it
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may be a party, or by
which it may be bound, or be in conflict with, result in a breach
of, or constitute (with due notice or lapse of time or both) a
default under or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever, upon any of
its property or assets pursuant to any such indenture, agreement
or instrument.
SECTION 10.16 Delivery of Financial Statements. Each party
shall deliver to the other party, as soon as available and in any
event within Ninety (90) Days after the end of each fiscal year
of such party, consolidated statements of income, retained
earnings and cash flow of such party and its subsidiaries for
such fiscal year and the related consolidated balance sheet of
such party and its subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form for the
corresponding figures for the preceding fiscal year, accompanied
by an opinion of independent certified public accountants of
recognized national standing, which opinion shall state that
those consolidated financial statements fairly present the
consolidated financial condition and results of operations of
such party and its subsidiaries as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles, consistently applied.
SECTION 10.17 No Partnership or Joint Venture. OCF does
not in any way or for any purpose become, by nature of this
Agreement, an agent, partner or joint venturer of APC and APC
shall not be deemed an agent, partner or joint venturer of OCF
for any purpose.
SECTION 10.18 Estoppel Certificates. Each party shall,
from time to time, upon twenty (20) Days' prior written request
by the other party, execute, acknowledge and deliver to the other
party, or any other person, firm or corporation specified by such
party, a certificate signed by its authorized representative
stating that (a) this Agreement is unmodified and in full force
and effect, or if there have been modifications, that this
Agreement is in full force and effect as modified, and setting
forth such modifications; (b) the dates to which any payments
which are due hereunder have been made, (c) stating that to the
knowledge of the signer of such certificate no default exists
hereunder or specifying each such default of which the signer has
knowledge, and (d) stating that to the knowledge of the signer of
such certificate that the other party has observed and performed
all of the terms, covenants and conditions on its part to be
performed and, if not, specifying the same. The failure of either
party to deliver such certificate within such twenty (20) Day
period shall be conclusive upon the requesting party or any other
person, firm or corporation for whose benefit the statement was
requested, that this Agreement is in full force and effect
without modification, except as may be represented by the
requesting party, that there are no uncured defaults on the part
of the requesting party, that all sums due by the requesting
party prior to such time have been paid. Any certificate given
pursuant to this Section 10.18 may be relied upon by any actual
prospective mortgagee or purchaser of any interest in this
Agreement or the Facility.
SECTION 10.19 Compliance with Laws. Each party shall, at
its own cost and expense (except as herein otherwise specifically
provided), obey and comply with all laws, ordinances, rules,
requirements, regulations and orders of the federal, state,
county and city governments, or any of them, and of any and all
of their departments and bureaus, or of any other
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competent authority, as they may pertain to the Facility or the
OCF Plant, to the protection and maintenance thereof, to the
business operated therein, or the sanitary conditions thereof, or
otherwise to the performance of either party under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of
the date first hereinabove written.
ORANGE-CO OF FLORIDA, INC., a Florida corporation
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: President
Witness: /s/ Xxxx X. Xxxxxxxxx
---------------------
XX XXXXX, LTD., a Florida Limited Partnership
By: Energy Development Corporation, a Georgia corporation,
its General Partner
By: /s/ X. X. Xxxxxx
----------------
Name: Xxxxx X. Xxxxxx
Title: President
Witness: /s/ Xxxxxxxx
-----------------------
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