MANAGEMENT SERVICES AGREEMENT
Exhibit 10.11
This Management Services Agreement (this “Agreement”) is made and entered into this
19th day of October, 2006, by and between Xxxxxxx Energy International Limited, a Cayman Islands
exempted company (“AEI”) and Xxxxxxx Investment Management Limited, a company formed under
the laws of England and Wales (“AIML” or the “Provider”). AEI and AIML are
referred to herein individually as a “Party”, and collectively as the “Parties”.
W I T N E S S E T H:
WHEREAS, AEI owns significant direct or indirect stakes in power companies;
WHEREAS, AEI wishes to retain AIML to provide certain services to the Companies (as defined in
Section 2.03);
NOW THEREFORE, in consideration of the premises and the agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
APPOINTMENT OF THE PROVIDER
APPOINTMENT OF THE PROVIDER
Section 1.01 The Recipient hereby appoints the Provider to act upon the terms herein contained
until its appointment shall be terminated as hereinafter provided and the Provider hereby accepts
such appointment and agrees to assume the obligations set forth herein.
ARTICLE II
SERVICES TO BE PROVIDED
SERVICES TO BE PROVIDED
Section 2.01 Management Services to be Provided to the Recipient. On the terms and
subject to the conditions set forth herein, and subject to the overall direction and supervision of
AEI, the Provider will provide, or cause to be provided, to the Companies during the Term of this
Agreement such of the services set forth on Schedule I (such services being the
“Management Services”) as may be reasonably requested from time to time by the Recipient
and consented to by the Provider. The Provider shall provide the Management Services in accordance
with the service standard set out in Article III.
Section 2.02 Power of Delegation. The Provider shall have full power to delegate or
sub-contract the whole or any part of its functions hereunder to any Person (including, but not
limited to, any Affiliate) provided that, any such delegation or sub-contracting shall not relieve
Provider of any of its obligations under this Agreement; provided further that except with the
consent of the Recipient, the Provider shall not have power to delegate any part of its functions
to any Person (the “Appointee”) who is for the time being resident for tax purposes in any
jurisdiction where the delegation of such functions would result in the Recipient becoming liable
to pay any taxes in any jurisdiction (other than the place of its domicile) in which the Recipient
would not otherwise be liable to pay taxes and in the event of an Appointee to whom any part of the
Provider’s functions shall have been delegated becoming or being deemed by the appropriate taxing
authority to become so resident in such a jurisdiction the Provider shall upon becoming aware
thereof take immediate steps to withdraw from such Appointee any authority so delegated. Any
delegation or sub-contracting by the Provider pursuant to this Section 2.02 shall be upon
reasonable advance notice to the Recipient and subject to the Recipient’s approval.
Section 2.03 Certain Definitions. For purposes of this Agreement, the following terms
shall have the meanings specified in this Section 2.03:
“Action” means any action, suit, arbitration, inquiry, proceeding or investigation by
or before any Governmental Authority of any nature, civil, criminal, regulatory or otherwise, in
law or in equity.
“Affiliate” (and, with a correlative meaning “affiliated”) means solely for
purposes of this Agreement, with respect to any Person, any direct or indirect subsidiary of such
Person, and any other Person that directly, or through one or more intermediaries, controls or is
controlled by or is under common control with such first Person; provided, that, that for
purposes of clarification, for purposes of this Agreement, AEI and AIML shall not be deemed to be
Affiliates of one another. As used in this definition, “control” (including with
correlative meanings, “controlled by” and “under common control with”) means
possession, directly or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other ownership interests, by
contract or otherwise).
“Applicable Law” means, with respect to any Person, any Law applicable to such Person
or its business, properties or assets.
“Business Day” means a day (other than Saturday or Sunday) on which commercial banks
are open for business in London and New York City.
“Companies” means AEI and all of the direct or indirect subsidiaries (wholly owned or
otherwise) of AEI.
“Confidential Information” means non-public information about the disclosing Party’s
or any of its Affiliates’ businesses or activities that is proprietary and confidential, which
shall include, without limitation, all business, financial, technical and other information of the
disclosing Party or its Affiliates that is marked or designated “confidential” or “proprietary” or
that by its nature or the circumstances surrounding its disclosure should reasonably be regarded as
confidential or proprietary. Confidential Information includes not only written or other tangible
information, but also information transferred orally, visually, electronically or by any other
means. Confidential Information shall not include information that (i) is in or enters the public
domain without breach of this Agreement, (ii) the receiving Party lawfully receives from a third
party without restriction on disclosure and, to the receiving Party’s knowledge, without breach of
a nondisclosure obligation, or (iii) is independently developed by the receiving Party.
“Governmental Authority” means any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, including any governmental
authority, independent or autonomous official authority, agency, department, board, commission or
instrumentality of the United States or any other country, or any political subdivision thereof,
whether federal, state or local, and any tribunal, court or arbitrator(s) of competent
jurisdiction.
“Law” means any foreign, federal, state or local law, statute, code, ordinance, rule,
regulation or other requirement enacted, promulgated, issued or entered by any Governmental
Authority.
“Person” means and includes natural persons, corporations, limited partnerships,
limited liability companies, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and all Governmental Authorities.
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“Recipient” means any Company in its capacity as a recipient of Management Services
from the Provider.
ARTICLE III
SERVICE STANDARD
SERVICE STANDARD
Section 3.01 Standard of Care; Limited Warranty. The Management Services shall be
performed with at least the same level of skill, diligence, prudence and quality as the Provider
utilizes in performing similar services within its own operations. THE PRECEDING IS THE ONLY
WARRANTY CONCERNING THE MANAGEMENT SERVICES AND ANY RESULTS, WORK PRODUCT OR PRODUCTS RELATED
THERETO, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS EXPRESSED OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR NONINFRINGEMENT. THE PARTIES UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE LEVEL
OF COMPENSATION THE PARTIES HAVE AGREED TO ACCEPT IS PREDICATED ON THIS LIMITATION OF LIABILITY AND
DISCLAIMER OF WARRANTIES.
Section 3.02 Consequences of Breach or Non-Performance. The Recipient shall promptly
notify the Provider of any failure by the Provider to perform one or more of the Management
Services in accordance with the terms of this Agreement. In the event that the Provider (a) does
not cure such non-performance within ten (10) Business Days of the receipt of such notice (the
“Cure Period”), or (b) has not performed a particular Management Service in accordance with
the terms of this Agreement for thirty (30) Business Days in the aggregate, then the Recipient may
terminate such Management Service(s) by delivering notice to the Provider. Upon such termination,
neither the Recipient nor the Provider shall have any further obligations hereunder (except that
the Provider shall continue to be entitled to payment of fees as provided in Section 5.01 and to
reimbursement of costs as provided in Section 5.02, and the provisions of this Section 3.02 and
Articles VI and IX shall survive). No termination of this Agreement as herein provided shall
relieve any Party of any liability it may have for any breach of its obligations hereunder.
Section 3.03 Relationship of Parties. It is understood and agreed that in providing
the Management Services and otherwise in connection with this Agreement, the Provider is an
independent contractor and is not, and shall not hold itself out as, an agent, employee or legal
representative of the Recipient or any of its Affiliates or otherwise as having power or authority
to bind the Recipient or any of its Affiliates in any manner.
ARTICLE IV
TERM
TERM
Section 4.01 Term. The appointment of the Provider shall, subject as herein provided,
be for an initial term of one year (the “Initial Term”) and shall automatically be renewed
for further successive terms of one year thereafter (each, a “Renewal Period”) unless
either Party provides not less than thirty (30) days’ notice in writing to the other Party of its
intent not to renew this Agreement, in which event this Agreement shall expire on the last day of
the Initial Term or the last day of the then current Renewal Period as applicable (the Initial Term
and all Renewal Periods, collectively, the “Term”).
Section 4.02 Termination. A Party may not terminate this Agreement during the Term
except under the following circumstances:
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(a) The Recipient and the Provider may terminate any Management Service, all Management
Services with respect to one or more Companies, or this Agreement by the execution of a written
agreement signed by authorized representatives of both such Parties, in which event the termination
shall be effective on the date specified in such agreement.
(b) The Recipient shall be permitted to terminate any Management Service, all Management
Services with respect to one or more Companies, or this Agreement upon written notice to the
Provider, in which event the termination shall be effective on the date that is ninety (90) days
after the Provider receives such notice; provided, that in the event of a sale or other transfer of
one or more Companies to a third party, such notice period with respect to such Company or
Companies shall be reduced to fourteen (14) days.
(c) The Provider shall be permitted to terminate any Management Service in the event the
Recipient fails to pay the Provider’s invoice for such Management Service within sixty (60) days of
the invoice date, in which event the termination shall be effective on the date on which the
Recipient receives notice from the Provider of such termination.
(d) The Recipient shall be permitted to terminate any Management Service pursuant to Section
3.02, in which event the termination shall be effective on the date on which the Provider receives
notice of termination pursuant to Section 3.02 hereof.
ARTICLE V
BILLING AND PAYMENT
BILLING AND PAYMENT
Section 5.01 Effect of Discontinuance of Purchase of Services. If the purchase of a
Management Service is terminated pursuant to Section 3.02 or 4.02 hereof, the Provider shall, upon
the effective date of such termination, as set forth in Section 3.02 or 4.02 hereof, as applicable,
of that Management Service, discontinue billing the Recipient for any fees for such Management
Service; provided, however, that the Recipient will be obligated to pay for Management Services
received up to and through the effective date of termination of such Management Service.
Section 5.02 Rates and Reimbursable Expenses.
(a) The
Provider shall charge the Recipient for the cost (including salary,
bonus, benefits, and long-term incentive grants) of its employees performing the
Management Services with no markup and at the actual cost incurred by
the Provider, to the extent such Management Services are performed.
(b) The Recipient shall be charged for and shall reimburse the Provider for all reasonable and
documented expenses incurred by the Provider in providing the Management Services including, but
not limited to, employee-related travel and lodging costs and the actual cost of goods and
services, including but not limited to, third party professional service fees such as accounting,
legal, technical and environmental, health and safety services purchased by the Provider in
providing the Management Services.
(c) The
maximum amount that the Provider shall charge pursuant to Section 5.02(a)
and (b) above shall be capped at $4,500,000 in the aggregate
throughout the term of this Agreement.
Section 5.03 Invoices. Charges for Management Services to be performed by the Provider
under this Agreement (other than for reimbursable expenses) shall be invoiced to the Recipient by
the Provider on or before the seventh business day prior to each
payroll date for Provider, to the extent Management Services have
been performed in the relevant period.
Invoices for reimbursement of expenses as set forth in Section 5.02 hereof shall be delivered
monthly to the Recipient by the Provider. Invoices shall contain sufficient detail to permit the
Recipient to determine the basis for the charges and the specific services to which the billed
amounts relate. The Recipient shall pay all invoices by wire transfer or other means of immediate
payment, on or before the 30th day after receipt of
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each invoice without setoff or deduction of any kind, except as provided in Section 5.04. Any
payment by the Recipient made more than forty-five (45) days after the Recipient is invoiced shall
incur a late fee of ten percent (10%) per annum, calculated from and after the expiration of such
forty-five (45) day period until the date of payment.
Section 5.04 Disputed Amounts. In the event that a good-faith dispute arises as to
the amount of any statement or invoice or any portions thereof submitted by the Provider to the
Recipient pursuant to this Article V, the Recipient may withhold all disputed amounts on such
invoice or statement but shall pay all charges on such invoice or statement that are not disputed.
The Recipient shall promptly notify the Provider in writing of such disputed amounts and the
reasons each such charge is disputed by the Provider. The Provider shall provide the Recipient
sufficient records relating to the disputed charge so as to enable the Parties to resolve the
dispute. In the event the determination is that the Recipient should have paid the disputed
amount, the Recipient shall pay the disputed amount to the Provider, with interest on the disputed
amount at a rate of ten percent (10%) per annum, calculated from and after the forty-five (45) days
following the date of such invoice until the date of payment.
ARTICLE VI
LIMITATION OF LIABILITY AND INDEMNITIES
LIMITATION OF LIABILITY AND INDEMNITIES
Section 6.01 Provider’s Limitation of Liability. The Recipient agrees that the
Provider shall not be liable for, and hereby releases the Provider and its Affiliates, and each
officer, director, employee, agent, representative, permitted successor and assign of the Provider
and/or any of its Affiliates from any loss, liability, cost, expense, penalty, damage, claim or
cause of action (the “Liabilities”) arising from any act or omission of the Provider in
connection with the Management Services except in the event of gross
negligence or wilful misconduct. In no event shall any Party (or its Affiliates) be liable
to any other Party (or its Affiliates) for any consequential, exemplary, special, incidental or
punitive damages or expenses (including, without limit, lost data, profits, revenues, income or
savings, cost of capital or loss of business reputation or opportunity) arising from this Agreement
or any breach thereof or breach of warranty or error in the performance of the Management Services
regardless of the fault or negligence (whether sole, joint or concurrent, active or passive) of a
Party or its Affiliates even if the other Party has been advised of the possibility of the
occurrence of such damages except in the event of gross
negligence or wilful misconduct. The Recipient, by its acceptance of any Management Services
acknowledges and agrees that the level of compensation the Provider has agreed to accept is
predicated on this limitation of liability and disclaimer of warranties.
Section 6.02 Recipient’s Indemnification.
(a) The Recipient (the “Indemnifying Party”), at its expense, agrees to defend,
protect, release, indemnify, and hold harmless the Provider and any of its Affiliates, and each
officer, director, employee, agent, representative, permitted successor and assign of the Provider
and/or any of its Affiliates (the “Provider Indemnified Parties”) from and against any and
all claims, liabilities, losses, damages, awards and judgments incurred by a Provider Indemnified
Party (including reasonable and documented fees and disbursements of the respective Provider
Indemnified Party and such Provider Indemnified Party’s counsel relating thereto) which arise out
of, or result from, the Management Services provided under this Agreement, including actions taken
or omitted to be taken by the Provider Indemnified Party on behalf of the Recipient prior to the
date hereof (“Losses”), other than for any Losses arising as a result of the gross
negligence or wilful misconduct of any Provider Indemnified Party.
(b) Any Provider Indemnified Party seeking indemnification shall give the Indemnifying Party
reasonably prompt notice of any claim for which it is seeking indemnification pursuant to this
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Article VI. An Indemnifying Party’s obligations under this Section 6.02 shall survive even if
a Provider Indemnified Party does not provide such Indemnifying Party with reasonably prompt notice
of any such claim, so long as such failure does not materially prejudice such Indemnifying Party.
(c) The foregoing right to indemnity shall be in addition to any rights that the Provider
and/or any other Provider Indemnified Party may have at common law or otherwise and shall remain in
full force and effect following the completion or any termination of the engagement. The Recipient
hereby consents to personal jurisdiction and to service and venue in any court in which any claim
which is subject to this agreement is brought against the Provider or any other Provider
Indemnified Party.
(d) It is understood that, in connection with the Provider’s engagement, the Provider may also
be engaged to act for the Recipient in one or more additional capacities, and that the terms of
this engagement or any such additional engagement may be embodied in one or more separate written
agreements. This indemnification shall apply to the engagement specified in this Agreement as well
as to any such additional engagement(s) (whether written or oral) and any modification of said
engagement or such additional engagement(s) and shall remain in full force and effect following the
completion or termination of said engagement or such additional engagements.
(e) For the avoidance of doubt, no Company, other than AEI, shall have any liability under
this Section 6.02 to any Provider Indemnified Party for any indemnity obligation under this
Agreement.
Section 6.03 Defense of Claims. Subject to the provisions of Section 6.02(f), it is
understood and agreed by the Indemnifying Party that in the event a Provider Indemnified Party is
made a defendant in any Action for which it is indemnified pursuant to this Agreement, and the
Indemnifying Party fails or refuses to assume the defense thereof, after having been notified by
the Provider Indemnified Party to do so, that the Provider Indemnified Party may compromise and
settle or defend any such claim, and the Indemnifying Party shall be bound and obligated to
reimburse the Provider Indemnified Party for the amount expended by the Provider Indemnified Party
in settling and compromising any such claim, or for the amount expended by the Provider Indemnified
Party in paying any judgment rendered therein, together with all reasonable attorneys’ fees
incurred by the Provider Indemnified Party for defense or settlement of such claim. Subject to the
limitation set forth in Section 6.02(f) hereof, any judgment rendered against a Provider
Indemnified Party or amount expended by a Provider Indemnified Party in compromising or settling
such claim shall be conclusive as determining the amount for which the Indemnifying Party is liable
to reimburse the Provider Indemnified Party hereunder.
ARTICLE VII
FORCE MAJEURE
FORCE MAJEURE
Section 7.01 Force Majeure. Subject to the standards set forth in Article III, if, by
reason of force majeure, the Provider is rendered unable, wholly or in part, to carry out its
obligations under this Agreement, and if the Provider gives notice and reasonable particulars of
such force majeure to the Recipient within a reasonable time after the occurrence of the cause
relied on, upon giving such notice, so far as and to the extent that it is affected by such force
majeure, the Provider shall not be liable solely on account of such inability to perform during the
continuance of any inability so caused; provided, however, the Provider shall use
commercially reasonable efforts to recommence performance of the affected services.
Section 7.02 Definition of Force Majeure. The term “force majeure” as employed in
this Agreement shall mean acts of God; strikes, lockouts or industrial disputes or disturbances;
civil
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disturbances; arrests and restraints from rulers of people; interruptions by government,
administrative agency or court orders, other than as a result of a failure to comply with laws;
present and future valid orders, decisions or rulings of any governmental or administrative entity
having proper jurisdiction; acts of a public enemy; wars; riots; blockades; insurrections;
inability to secure materials by reason of allocations promulgated by authorized governmental
agencies; epidemics; landslides; lightning; earthquakes; fire; storm; floods; washouts; whether of
the kind herein enumerated or otherwise, not reasonably within the control of the Provider and not
caused, in whole or in part, by the acts or omissions of the Provider.
ARTICLE VIII
NOTICES AND REPORTS
NOTICES AND REPORTS
Section 8.01 Notices. All notices and other communications under this Agreement shall
be in writing and shall be deemed duly given (i) when delivered personally or by prepaid overnight
courier, with a record of receipt, (ii) the fourth day after mailing if mailed by certified mail,
return receipt requested, or (iii) the day of transmission, if sent by facsimile or telecopy during
regular business hours, or the day after transmission, if sent after regular business hours (with a
copy promptly sent by prepaid overnight courier with record of receipt or by certified mail, return
receipt requested), to the Parties at the following addresses or telecopy numbers (or to such other
address or telecopy number as a Party may have specified by notice given to the other Party
pursuant to this provision):
If to AEI, to:
Xxxxxxx Energy International Limited
c/o International Management Services Limited
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx Xxxxxx
P.O. Box 61GT
Xxxxxx Town, Grand Cayman
Cayman Islands
Attention: Director
Facsimile: x0 000 000 0000
c/o International Management Services Limited
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx Xxxxxx
P.O. Box 61GT
Xxxxxx Town, Grand Cayman
Cayman Islands
Attention: Director
Facsimile: x0 000 000 0000
If to AIML, to:
Xxxxxxx Investment Management Limited
00 Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Attention: General Counsel
Facsimile: x00 00 0000 0000
00 Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Attention: General Counsel
Facsimile: x00 00 0000 0000
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ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
Section 9.01 Confidentiality.
(a) Nondisclosure. Each of the Parties agrees that (i) it will not, and will cause
each of its Affiliates receiving or providing Management Services not to, disclose to any third
party or use any Confidential Information disclosed hereunder to such Person, except as expressly
permitted in this Agreement or in the exercise of its rights and obligations hereunder, and (ii) it
will take reasonable measures to maintain the confidentiality of all Confidential Information of
the other Party in its or its Affiliates’ possession or control, which will in no event be less
than the measures it uses to maintain the confidentiality of its own information of similar type
and importance.
(b) Permitted Disclosure. Notwithstanding the foregoing, each of the Parties may
disclose Confidential Information of any other Party (i) to the extent required by a court of
competent jurisdiction or other Governmental Authority or otherwise as required by Law, provided
that such Party has given such other Party reasonable prior notice of such requirement when legally
permissible and to the extent reasonably possible to permit such other Party to take such legal
action to prevent the disclosure as it deems reasonable, appropriate or necessary, or (ii) to its
or its Affiliates’ employees, agents, representatives, legal counsel, auditors, accountants and
advisors; provided, however, that such persons shall be specifically informed of
the confidential nature of such Confidential Information and that by receiving such information
they are agreeing to be bound by the terms of this Agreement relating to the confidential treatment
of such Confidential Information.
(c) Ownership of Confidential Information. All Confidential Information disclosed
hereunder shall be and shall remain the sole and exclusive property of the disclosing party.
Section 9.02 Applicable Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR INDIRECTLY BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, SHALL IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN
ACCORDANCE WITH, THE APPLICABLE PROVISIONS OF THE STATE OF NEW YORK.
Section 9.03 Waiver. The performance of or compliance with a Party’s obligations
hereunder may be waived, but only in writing signed by an authorized representative of the other
Party. No waiver or failure of enforcement by any Party of any default by any other Party in the
performance of any provision, condition or requirement herein shall be deemed to be a waiver of, or
in any manner a release of the defaulting Party from, performance of any other provision, condition
or requirement herein, nor deemed to be a waiver of, or in any manner a release of the defaulting
Party from, future performance of the same provision, condition or requirement; nor shall any delay
or omission of any non-defaulting Party to exercise any right hereunder in any manner impair the
exercise of any such right or any like right accruing to it thereafter.
Section 9.04 Modification. This Agreement may not be modified, varied or amended
except by an instrument in writing signed by the Parties.
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Section 9.05 Headings. The headings to each of the various Articles and Sections in
this Agreement are included for convenience and reference only and shall have no effect on, or be
deemed as part of the text of, this Agreement.
Section 9.06 Third Parties. Except as provided in Article VI hereof (with respect to
Provider Indemnified Parties), this Agreement is not intended to confer upon any Person not a Party
hereto (other than the Recipient) any rights or remedies hereunder, and no Person other than the
Parties hereto (and the Recipient) is entitled to rely on or enforce any representation, warranty
or covenant contained herein.
Section 9.07 Survival; Limitations Period. Notwithstanding any other provisions in
this Agreement, all indemnity, limitation of liability and payment obligations set forth in this
Agreement shall survive the termination or expiration of this Agreement, in whole or in part. NO
PARTY MAY ASSERT ANY CAUSE OF ACTION AGAINST ANY OTHER PARTY ARISING UNDER OR IN CONNECTION WITH
THIS AGREEMENT MORE THAN SIX (6) MONTHS AFTER THE EXPIRATION OF THE TERM.
Section 9.08 Binding Effect; Assignment.
(a) Subject to Section 2.02 and paragraphs (b) and (c) below, no Party hereto may assign this
Agreement, in whole or in part, except with the prior written approval of each other Party, which
approval shall not be unreasonably withheld. This Agreement shall inure to the benefit of, and
shall be binding upon, the Parties and their respective successors and permitted assigns.
(b) A Party may assign this Agreement to any successor in interest of such Party of all or
substantially all of the assets of such Party.
(c) The Recipient may make a collateral assignment of its rights under this Agreement to any
lender to the Recipient or its Affiliates without the consent of the other Parties, so long as such
assignment shall not relieve the Recipient of its obligations hereunder.
Section 9.09 Entire Agreement. This Agreement, including any exhibits, attachments
and schedules hereto, constitutes the entire agreement between the Parties concerning the subject
matter hereof, and same supersedes any prior understandings or written or oral agreements relative
to said matter.
Section 9.10 Submission to Jurisdiction; Consent to Service of Process.
(a) Each Party hereby agrees to unconditionally and irrevocably submit to the exclusive
jurisdiction of the United States District Court for the Southern District of New York sitting in
New York County or the Commercial Division, Civil Branch of the Supreme Court of the State of New
York sitting in New York County and any appellate court from any thereof, for the resolution of any
Action arising out of or relating to this Agreement or any of the transactions contemplated hereby,
and agrees that any such Action shall be brought only in such court.
(b) Each Party hereby unconditionally and irrevocably waives, to the fullest extent permitted
by Applicable Law, any objection which they may now or hereafter have to the laying of venue of any
Action arising out of or relating to this Agreement or any of the transactions contemplated hereby
brought in any court specified in paragraph (a) above, or any defense of inconvenient forum for the
maintenance of such Action. Each of the Parties hereto agrees that a judgment in any such dispute
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
law.
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(c) Each of the Parties hereto hereby consents to process being served by any Party to this
Agreement in any Action by the mailing of a copy thereof in accordance with the provisions of
Section 8.01
Section 9.11 Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED
ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT,
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.12 No Strict Construction. The Parties to this Agreement have participated
jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises with respect to this Agreement, this Agreement shall be
construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise
favoring or disfavoring a Party by virtue of the authorship of any of the provisions of this
Agreement.
Section 9.13 Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
Section 9.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same instrument.
Section 9.15 Construction and Interpretation. All references herein to agreements and
other contractual instruments shall be deemed to include all exhibits, attachments and appendices
attached thereto and all amendments and other modifications to such agreements and instruments.
Words used herein in the singular, where the context so permits, shall also apply to words when
used in the plural and vice versa. The term “including” when used in the Agreement will be by way
of example and not considered in any way to be a limitation, and means “including, without
limitation”.
Section 9.16 Recipient’s Action. Any action required or permitted hereunder to be
taken by the Recipient, including, without limitation, the billing and payment provisions set forth
in Article V, shall be taken by AEI on behalf of itself and its Affiliates. All actions taken by
AEI hereunder shall be binding on its respective Affiliates and the Provider shall have the right
to rely on all such actions. In addition, each Affiliate of AEI, by accepting any Management
Services provided by a Provider, shall be deemed to have agreed to the provisions hereof,
including, without limitation the services standard provided in Article III, the payment provisions
in Article V and the limitation of liability provisions set forth in Article VI.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed in multiple originals
by their respective officers thereunto duly authorized, all as of the date first above written.
| XXXXXXX ENERGY INTERNATIONAL LIMITED |
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| By: | /s/ K. Xxxxxx Xxxxxx | |||
| Name: | K. Xxxxxx Xxxxxx | |||
| Title: | Director | |||
| XXXXXXX INVESTMENT MANAGEMENT LIMITED |
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| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE I
MANAGEMENT SERVICES
MANAGEMENT SERVICES
Provision of operational, administrative and technical services (e.g., services including, but not
limited to, accounting and legal services, internal audit, implementation and compliance,
preparation of financial statements, preparation and filing of tax returns, maintenance and
retention of corporate books and records, advice and services related to business development,
acquisitions and divestitures, transaction and financing structuring, treasury and cash management
services).
Preparation and filing of required materials/filings with any national, state or other regulators.
Provision of board members and authorised signatories (including for bank account management) to
the Recipient and the Companies.
Co-ordination and management of service providers to the Recipient and the Companies.
