AUTOMATED POWER EXCHANGE
SERVICE AND PARTICIPATION AGREEMENT
THIS AUTOMATED POWER EXCHANGE SERVICE AND PARTICIPATION AGREEMENT
("Service Agreement") is made and entered into this 9 day of April, 1998 by
and between Automated Power Exchange, Inc., a California corporation ("APX"),
and Full Power Corporation, a OHIO Corporation ("Participant"). APX and the
Participant are sometimes referred to herein individually as a "Party" and
collectively as the "Parties."
WHEREAS:
A. APX operates information exchanges in which Participants are able to buy
and sell electricity at APX Market Prices.
B. APX also serves as a Scheduling Coordinator with the California
Independent System Operator Corporation for Generating Units and Loads
that are registered with APX by Participants.
C. The Participant desires to enter into this Service Agreement in order
to be able to utilize the APX Services from time to time in accordance
with the terms hereof.
NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein, the Parties agree and intend to be bound as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS. Except as otherwise defined herein,
initially-capitalized terms used in this Service Agreement have
the meanings set forth in Section 2.1 of the Automated Power
Exchange Terms and Conditions of Service, together with any
appendices or attachments thereto, as amended or modified from
time to time ("APX Terms").
1.2. INTERPRETATION. The rules of interpretation set forth in Section
2.2 of the APX Terms shall apply to this Service Agreement.
2. USE OF APX SERVICES
2.1. Upon execution of this Service Agreement and satisfaction of the
conditions of eligibility set forth in Section 3 of the APX
Terms, the Participant shall be eligible to use the APX Services.
2.2. This Service Agreement does not obligate the Participant to use
any APX Service.
3. TERMS AND CONDITIONS OF SERVICE
3.1. The APX Terms are incorporated herein and made a part of this
Service Agreement.
3.2. APX and the Participant agree that:
3.2.1. The APX Terms, this Service Agreement, and any rules,
regulations or orders duly promulgated from time to time
by APX shall govern the Participant's use of any APX
Service;
3.2.2. APX and the Participant will abide by the APX Terms and
any rules, regulations and orders duly promulgated by APX
in respect of all matters relating to the Participant's
use of any APX Service; and
3.2.3. The Participant's eligibility to use the APX Services is
at all times subject to the APX Terms and any rules,
regulations and orders duly promulgated by APX, and may be
revoked in accordance with the APX Terms.
3.3. APX may amend or modify the APX Terms from time to time in
accordance with the procedures set forth in Section 13 of the APX
Terms. Any such amendment or modification shall be binding upon
the Participant in accordance with Section 13 of the APX Terms.
4. TERM AND TERMINATION
4.1. This Service Agreement shall become effective on the date set
forth in the introductory paragraph and shall remain in effect
unless terminated in accordance with the provisions set forth in
Section 15 of the APX Terms.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each Party represents and warrants to the other Party the
following:
5.1.1. AUTHORITY. The execution, delivery and performance by
each Party of this Service Agreement are within the
Party's powers, have been duly authorized by all
necessary corporate or other action, and do not and will
not violate the terms or conditions in the Party's
governing documents, any material contract to which the
Party is a party, or any applicable Laws.
5.1.2. BINDING OBLIGATIONS. This Service Agreement constitutes
the legal, valid and binding obligations or each Party,
enforceable against the Party in accordance with its
terms, except as enforceability may be limited by
applicable bankruptcy or similar laws affecting the
enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
6. TRANSFER AND ASSIGNMENT.
6.1. Neither Party shall assign any of its rights nor delegate any of
its obligations under this Service Agreement without the prior
written consent of the other Party, which consent shall not be
withheld or delayed unreasonably. Any prohibited assignment or
delegation shall be void.
7. ELECTRONIC CONTRACTING
7.1. All submitted applications, schedules, bids, confirmations,
changes to information on file with APX, notices and other
communications conducted via electronic transfer, including
without limitation, direct computer link, bulletin board, e-mail,
facsimile or any other means established by APX, shall invoke
the same legal rights, responsibilities, obligations and other
implications set forth in the APX Terms as if executed in written
format.
2
8. MISCELLANEOUS.
8.1. NOTICES. Except as otherwise specified herein or in the APX Terms,
notices provided under the terms of this Service Agreement shall
be in writing and transmitted by mail, overnight courier, or
facsimile. Notices to APX shall be addressed to:
Automated Power Exchange, Inc.
00000 Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Attention: Contracts Department
Phone: (000) 000-0000 Fax: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxx-xxxxxxxx.xxx
Notices to the Participant shall be addressed to the representative
at the address specified in Appendix I of this Service Agreement.
8.2. ENTIRE AGREEMENT. This Service Agreement and all attachments
hereto, and the APX Terms embody the entire agreement and
understanding of the Parties; and supersede all prior or
contemporaneous agreements and understandings of the Parties,
verbal or written, relating to the subject matter hereof.
8.3. GOVERNING LAWS. This Service Agreement shall be governed by, and
construed in accordance with, the laws of the State of California,
irrespective of choice of law rules.
8.4. INDEPENDENT PARTIES. Nothing in this Service Agreement shall be
construed or represented as creating a partnership, trust,
fiduciary or any similar relationship among the Parties. Except as
set forth in the APX Terms, no Party is authorized to act on behalf
of the other Party and none shall be considered the agent of the
other.
8.5. NO THIRD-PARTY BENEFICIARIES. This Service Agreement is made and
entered into for the sole protection and legal benefit of the
Parties and their permitted successors and assigns, and no other
person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with,
this Service Agreement.
8.6. AMENDMENT. This Service Agreement is subject to modification by a
modification of the APX Terms. In all other respects, this Service
Agreement shall only be modified or amended by a written instrument
executed by the Parties and shall not be modified by course of
performance or any usage of trade.
8.7. SEVERABILITY. The illegality or unenforceability of any provision
of this Service Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Service
Agreement or any instrument or agreement required hereunder.
8.8. COUNTERPARTS. This Service Agreement may be executed in any number
of separate counterparts, which shall be deemed to constitute one
instrument.
3
The authorized representatives of the Parties have executed this
Service Agreement as of the date first set forth above.
AUTOMATED POWER EXCHANGE FULL POWER CORPORATION
BY: /s/ Xxxx Xxxxx BY: /s/Xxxxxx X. Xxxxxxx
--------------------- ---------------------
TITLE: EXECUTIVE V.P. TITLE: PRESIDENT
------------------ ------------------
DATE: 4/15/98 DATE: 4-9-98
------------------- -------------------
4
APPENDIX I
NAME OF THE PARTICIPANT: XXXXXX X. XXXXXXX
----------------------------
REPRESENTATIVE: FULL POWER CORPORATION
----------------------------
----------------------------
ADDRESS: 00000 XXXXXXX XXXXXX, XXXXX 000
----------------------------
XXXXXXXX, XX 00000
----------------------------
----------------------------
E-MAIL ADDRESS:
----------------------------
TELEPHONE NUMBER: 000-000-0000
----------------------------
FACSIMILE NUMBER: 000-000-0000
----------------------------
APPENDIX C
FORM SETTLEMENT ACCOUNT AGREEMENT
This Settlement Account Agreement (as amended, modified or supplemented
from time to time, this "Agreement") is entered into as of this 9 day of
April, 1998, by and among AUTOMATED POWER EXCHANGE, INC., a California
corporation ("APX"), BANKERS TRUST COMPANY, a New York state chartered bank
(the "Depository and Clearing Agent") and the person which executes this
Agreement on the signature page hereto as the "Participant".
RECITALS
A. APX and the Participant are parties to that certain Automated Power
Exchange Service and Participation Agreement dated as of April 9, 1998 (the
"Service Agreement"). Pursuant to the Service Agreement, APX and the
Participant are bound by the Automated Power Exchange Terms and Conditions of
Service, effective as of December 19, 1997 (as such terms and conditions may
be amended, modified or supplemented from time to time, the "APX Terms").
Capitalized terms used herein without definition shall have the meanings
assigned thereto in the APX Terms.
B. The APX Terms require that a Settlement Account be established and
maintained with the Depository and Clearing Agent, into which account the
Participant shall fund, on or before the applicable Payment Due Date, all
payments required to be made under the APX Terms on such Payment Due Date.
C. APX, the Depository and Clearing Agent and the Participant (each, a
"Party" and collectively, the "Parties") each intend and agree that the
Participant shall relinquish all of its right, title and interest in and to
funds deposited in the Settlement Account, with the intended result that upon
the occurrence of any Insolvency Proceeding relating to the Participant, the
Settlement Account will not be subject to the automatic stay pursuant to
Xxxxxxx 000 xx Xxxxx 00, Xxxxxx Xxxxxx Code (the "Bankruptcy Code").
D. The Depository and Clearing Agent has agreed to provide certain
services as agent for and on behalf of APX in connection with the Settlement
Account as more fully set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants hereinafter set forth, APX, the Depository and Clearing Agent
and the Participant each agree as follows:
C-1
1. DEFINITIONS
"SETTLEMENT ACCOUNT" means the account maintained by the Depository
and Clearing Agent in the name of APX for the purpose of tracking the funds
on deposit from time to time which support the Participant's obligations to
pay all outstanding liabilities under the APX Terms on each Payment Due Date.
2. DUTIES OF PARTIES
2.1 APPOINTMENT. APX hereby appoints the Depository and Clearing
Agent to act as its agent for the purpose of maintaining the Settlement
Account, and the Depository and Clearing Agent hereby accepts such
appointment. The Participant hereby acknowledges and agrees to such
appointment.
2.2 DEPOSIT OF FUNDS. The Participant shall from time to time
deliver to the Depository and Clearing Agent funds for deposit in the
Settlement Account. The Depository and Clearing Agent agrees to deposit any
such funds in the Settlement Account, and thereafter to hold such funds as
bailee and agent exclusively for APX. Upon any such deposit of funds by the
Participant, the Participant shall relinquish all of its right, title and
interest to such funds.
2.3 ACCOUNT BOOKS AND RECORDS; STATEMENTS. The Depository and
Clearing Agent shall maintain books and records identifying all of the funds
on deposit from time to time in the Settlement Account. Not less frequently
than once each calendar month, the Depository and Clearing Agent shall
provide APX with a statement showing the activity in the Settlement Account
during the preceding calendar month, including any interest credit made
pursuant to Section 2.4. APX shall make available to the Participant the
information contained in such statement.
2.4 INTEREST CREDIT. The Settlement Account shall be maintained as
a separate account, which shall bear interest at the rate negotiated from
time to time between APX and the Depository and Clearing Agent. On the tenth
Business Day of each month, a credit shall be made to the Settlement Account
in an amount equal to the interest earned on funds deposited in the
Settlement Account more than one Business Day prior to transfer of such funds
out of the Settlement Account, including pursuant to Section 2.5 or Section
2.7. Not less frequently than annually, APX shall direct the Depository and
Clearing Agent to distribute to the Participant, to the extent that
sufficient funds remain in the Settlement Account, an amount equal to the
interest credits made pursuant to Section 2.4 with respect to funds remaining
on deposit in the Settlement Account for more than one Business Day.
2.5 WITHDRAWALS FROM THE SETTLEMENT ACCOUNT. The Parties agree
that on each Payment Due Date, the Depository and Clearing Agent shall
withdraw funds from the Settlement Account in an amount equal to the
Participant's obligations due on such date, and the Depository and Clearing
Agent shall deposit such funds in the Clearing Account. Except as otherwise
agreed by APX and the Participant or as otherwise
C-2
provided in Section 2.4 above or Section 2.6 below, no Party may initiate any
withdrawals from the Settlement Account.
2.6 REFUND OF BALANCE IN THE SETTLEMENT ACCOUNT. At the request
of the Participant in connection with any overfunding of the Settlement Account
(in an amount in excess of the amount expected to be due on the next Payment
Due Date) or if the Participant is no longer a Participant in the APX Markets
and no longer has any remaining liabilities under the APX Terms, APX shall
direct the Depository and Clearing Agent to distribute to the Participant all
or any portion of the balance reflected in the Settlement Account. Upon
receipt of such funds by the Participant, APX shall automatically and without
further action by any Party relinquish all of its right, title and interest
in and to such funds. Any security interest which attached with respect to
such funds pursuant to Section 3 shall automatically terminate upon receipt
of such funds by the Participant without further action by any Party.
3. SECURITY INTEREST.
The Parties each intend and agree that the Participant shall
relinquish all of its right, title and interest in and to funds deposited in
the Settlement Account, with the intended result that upon the occurrence of
any Insolvency Proceeding relating to the Participant, the Settlement Account
will not be subject to the automatic stay pursuant to the Bankruptcy Code.
Notwithstanding the foregoing (and in the event that the Participant is
determined to have any right, title or interest in the Settlement Account),
the Participant hereby grants to APX a security interest in any right, title
or interest of the Participant in and to funds deposited and on deposit from
time to time in the Settlement Account, together with all proceeds thereof,
to secure its obligations under the Service Agreement and the APX Terms,
including its obligations to other Participants and the ISO, and to secure
its obligations under any other agreement to which the Participant and APX
are party. The Depository and Clearing Agent acknowledges the grant of such
security interest, and agrees to accept instructions with respect to the
Settlement Account from APX only (and not from the Participant).
4. INDEMNIFICATION OF THE DEPOSITORY AND CLEARING AGENT.
4.1 INDEMNIFICATION. Each Participant agrees to indemnify and
hold harmless the Depository and Clearing Agent from and against any and all
loss, liability, cost, damage and expense, including, without limitation,
reasonable attorneys' fees which the Depository and Clearing Agent may suffer
or incur by reason of any action, claim or proceeding brought against the
Depository and Clearing Agent arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates unless such
action, claim or proceeding is the result of gross negligence or willful
misconduct by the Depository and Clearing Agent.
4.2 NO DUTY TO DEFEND. The Depository and Clearing Agent shall
be under no duty to institute or defend any type of proceeding which may
arise regarding this Agreement.
C-3
5. DUTIES LIMITED.
The Depository and Clearing Agent undertakes for the benefit of APX
and the Participant to perform only the duties expressly set forth in this
Agreement and such other responsibilities incidental to the performance of
its service as contemplated herein. The Participant acknowledges and agrees
that APX and the Depository and Clearing Agent are party to certain other
agreements relating to the APX Markets, that the Participant has no rights or
obligations under any such other agreement, and that it is not an intended
third party beneficiary of any such agreement.
6. THE DEPOSITORY AND CLEARING AGENT FEES.
The Depository and Clearing Agent shall be entitled to compensation
for its services under this Agreement in accordance with the fee schedule
negotiated from time to time by APX and the Depository and Clearing Agent.
The APX Terms provide that the Participant shall be responsible to deposit
funds for payment of such fees to the Settlement Account on or before each
Payment Due Date.
7. FEDERAL POWER AGENCIES. [Include only if the Participant is a Federal
Power Agency.]
7.1 LIMITATION OF LIABILITY. Claims against the United States
under this Agreement are subject in all respects to applicable acts of
Congress and to regulations of the Secretary of Energy established thereunder,
including but not limited to the statutory limitations on the liability of
the United States under the Federal Tort Claims Act, the Xxxxxx Act and the
Equal Access to Justice Act.
7.2 APPROPRIATIONS. Notwithstanding anything else herein to
the contrary, where the obligations of this Agreement extend beyond the
current fiscal year, participation by the United States is contingent upon
Congress making the necessary appropriation for expenditures by the United
States after such current year shall have expired. In case such
appropriations necessary to carry out obligations of the United States under
this Agreement are not made, the Participants release the United States from
all liability due to the failure of Congress to make such appropriation. The
provisions of this Section 7.2 are not intended to release any claims against
the United States that may be made under the Federal Tort Claims Act, the Xxxxxx
Act or the Equal Access to Justice Act.
7.3 PRIVATIZATION. The provisions of this Section VII shall not
apply to any governmental or quasi-governmental agency that is privatized or
otherwise ceases to by owned by the United States.
8. EFFECTIVE DATE; TERM; RESIGNATION AND REPLACEMENT OF THE DEPOSITORY
AND CLEARING AGENT.
8.1 EFFECTIVE DATE. The Agreement shall become effective upon
the execution and delivery of a counterpart hereof by each Party hereto.
C-4
8.2 TERM. This Agreement shall remain in full force and effect
unless and until the Participant is no longer a Participant in the APX Markets
and no longer has any remaining liabilities under the APX Terms.
8.3 RESIGNATION BY THE DEPOSITORY AND CLEARING AGENT. The
Depository and Clearing Agent may resign at any time upon not less than thirty
(30) days prior written notice to the Participant and APX.
8.4 REPLACEMENT OF THE DEPOSITORY AND CLEARING AGENT. Under
certain circumstances as separately agreed between APX and the Depository and
Clearing Agent, APX has the right to replace the Depository and Clearing Agent.
If APX exercises such right, APX shall name a new Depository and Clearing Agent
which shall perform the functions of the Depository and Clearing Agent
hereunder.
8.5 SUCCESSOR DEPOSITORY AND CLEARING AGENT(S). Any successor
to the Depository and Clearing Agent shall have capital and surplus in excess of
$250,000,000. Any resignation or replacement pursuant to Section 8.3 or Section
8.4 shall become effective upon the appointment of a successor to such Party by
APX, and the delivery by the resigning Depository and Clearing Agent to its
successor all funds on deposit in the Settlement Account.
9. MISCELLANEOUS.
9.1 COMPLIANCE WITH LAWS, RULES AND REGULATIONS.
Notwithstanding anything in this Agreement to the contrary, the Depository and
Clearing Agent shall refrain from any action which, in its reasonable judgment,
or in the judgment of APX of which the Depository and Clearing Agent has written
notice, would violate any law, rule or regulation of any governmental body or
agency having jurisdiction over APX or the Participant.
9.2 AMENDMENTS. This Agreement shall not be modified or
amended without the consent of each Party, which consent must be evidenced by an
instrument in writing executed by each Party, or by their respective successors
or permitted assigns.
9.3 SEVERABILITY. In the event that any one or more of the
provisions of this Agreement shall for any reason be held to be unenforceable in
any respect, such unenforceability shall not affect any other provision of this
Agreement that can be given effect without the unenforceable provision, and this
Agreement shall be construed as if such unenforceable provision or provisions
had never been contained herein.
9.4 APX TERMS. In the event of any inconsistency between this
Agreement and the Service Agreement and/or the APX Terms, as between APX and the
Participant, the provisions of the Service Agreement and/or the APX Terms (the
case may be) shall govern the rights and obligations of such Parties.
9.5 CUMULATIVE REMEDIES. The remedies provided under this
Agreement shall be cumulative and not exclusive, and the election of one remedy
shall not preclude pursuit of other remedies.
C-5
9.6 ENFORCEMENT AND WAIVER. Any waiver of any provision of
this Agreement must be in writing and will not be implied by any usage of
trade, course of dealing or course of performance. Any delay or failure of a
Party to exercise, or any partial exercise of, such Party's rights and
remedies under this Agreement shall not operate to limit or otherwise affect
such rights or remedies. Any waiver of performance hereunder shall be limited
to the specific performance waived and shall not, unless otherwise expressly
stated in writing, constitute a continuous waiver or a waiver of future
performance.
9.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the Parties hereto and their respective
successors and permitted assigns (including any successor to the Depository and
Clearing Agent pursuant to Section 8). Except as contemplated by Section 8, no
Party shall assign or delegate any of its rights or obligations under this
Agreement without the prior written consent of the other Parties and any such
attempted assignment or delegation shall be void and of no force or effect.
9.8 INDEPENDENT PARTIES. Nothing in this Agreement shall be
construed or represented as creating a partnership, trust, fiduciary or any
similar relationship between or among the parties hereto. Except as expressly
set forth herein, no Party is authorized to act on behalf of the other Party and
none shall be considered the agent of the other.
9.9 NOTICES. Notices or consents of any kind required or
permitted under this Agreement shall be in writing and shall be deemed duly
delivered if delivered in person or if mailed by certified mail, return receipt
requested, telegraph, postage prepaid, or by Fax Transmission with receipt
retained by sender, to the appropriate Party as follows:
If to the Depository and Clearing Agent:
Bankers Trust Company
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to APX:
Automated Power Exchange, Inc.
00000 Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Participant: To the address on the
signature page of this Agreement.
C-6
Any Party from time to time may change its address for the purpose of notices to
that Party by giving a similar notice specifying a new address.
9.10 FURTHER ASSURANCES. Each Party shall do all necessary
acts and make, execute, and deliver such written instruments as shall from time
to time be reasonably required to carry out the terms of this Agreement.
9.11 TIME IS OF THE ESSENCE. Each Party hereby expressly
acknowledges that time is of the essence in the performance of its respective
obligations under this Agreement.
9.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, IRRESPECTIVE OF
CHOICE OF LAW RULES THAT DIRECT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION. Any legal action or proceeding with respect to this Agreement must
be brought in the courts of the State of California or of the United States for
the Northern District of California. By execution and delivery of this
Agreement, each Party consents, for itself and in respect of its property, to
the exclusive jurisdiction of those courts. Each Party irrevocably waives any
objection, including any objection to the laying of venue or based on the
grounds of FORUM NON CONVENIENS, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in respect of this
Agreement or any document related thereto.
9.13 CROSS DEFAULT. Any default under this Agreement by APX or
the Participant shall be considered a default of the APX Terms and the
Settlement Account Agreement and shall entitle APX and/or the Participant, as
applicable, to exercise the rights as are available herein and therein.
9.14 SURVIVAL OF RIGHTS. Any provisions of this Agreement
which contemplates performance or observance subsequent to termination shall
survive any such termination and shall continue in full force and effect.
9.15 HEADINGS. Section headings and subheadings contained in
this Agreement are for ease of reference only and shall not affect the
substantive interpretation of this Agreement.
9.16 CONSTRUCTION. No provision of this Agreement shall be
construed or interpreted for or against APX because APX drafted or caused its
legal representative to draft the provision.
9.17 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one and the same instrument.
C-7
IN WITNESS WHEREOF, each of APX, the Depository and Clearing Agent,
and the Participant has caused this Agreement to be executed by its duly
authorized officer as of this 21 day of April, 1998.
----------------------------------------------------------------------------
APX: AUTOMATED POWER EXCHANGE, INC.
By: /s/ Xxxx Xxxxx
-------------------
Name: Xxxx Xxxxx
Title: Vice President
----------------------------------------------------------------------------
DEPOSITORY AND CLEARING AGENT: BANKER TRUST COMPANY
By: /s/ Xxxxxxx X. May
--------------------
Name: Xxxxxxx X. May
Title: VP
----------------------------------------------------------------------------
PARTICIPANT: Full Power Corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: PRESIDENT
Address of Participant:
00000 Xxxxxxx Xx. Xxx 000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
----------------------------------------------------------------------------
C-8
APPENDIX D
FORM MONETARY RESERVE ACCOUNT AGREEMENT
This Monetary Reserve Account Agreement (as amended, modified or
supplemented from time to time, this "Agreement") is entered into as of this
9 day of April, 1998, by and among AUTOMATED POWER EXCHANGE, INC., a
California Corporation ("APX"), BANKERS TRUST COMPANY, a New York state
chartered bank (the "Depository and Clearing Agent") and the person which
executes this Agreement on the signature page hereto as the "Participant".
RECITALS
A. APX and the Participant are parties to that certain Automated
Power Exchange Service and Participation Agreement dated as of April 9, 1998
(the "Service Agreement"). Pursuant to the Service Agreement, APX and the
Participant are bound by the Automated Power Exchange Terms and Conditions of
Service, effective as of December 19, 1997 (as such terms and conditions may
be amended, modified or supplemented from time to time, the "APX Terms").
Capitalized terms used herein without definition shall have the meanings
assigned thereto in the APX Terms.
B. The APX Terms require that the Participant establish a Monetary
Reserve Facility in an amount sufficient to cover its Net Exposure. The
Participant desires to establish a Monetary Reserve Account (as defined
below) to satisfy its obligations under the APX Terms to maintain a Monetary
Reserve Facility.
C. APX, the Depository and Clearing Agent and the Participant
(each, a "Party" and collectively, the "Parties") each intend and agree that
the Participant shall relinquish all of its right, title and interest in and
to funds deposited in the Monetary Reserve Account, with the intended result
that upon the occurrence of any Insolvency Proceeding relating to the
Participant, the Monetary Reserve Account will not be subject to the
automatic stay pursuant to Section 362 of Title 11, United Stated Code (the
"Bankruptcy Code").
D. The Depository and Clearing Agent has agreed to provide certain
services as agent for and on behalf of APX in connection with the Monetary
Reserve Account as more fully set forth in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants hereinafter set forth, APX, the Depository and
Clearing Agent and the Participant each agree as follows:
D-1
1. DEFINITIONS.
"MONETARY RESERVE ACCOUNT" means the account maintained by the
Depository and Clearing Agent in the name of APX for the purpose of tracking
the funds on deposit from time to time which contribute to (or correspond to)
the Participant's requirement to maintain a Monetary Reserve Facility.
2. DUTIES OF PARTIES.
2.1 APPOINTMENT. APX hereby appoints the Depository and
Clearing Agent to act as its agent for the purpose of maintaining the
Monetary Reserve Account, and the Depository and Clearing Agent hereby
accepts such appointment. The Participant hereby acknowledges and agrees to
such appointment.
2.2 DEPOSIT OF FUNDS. The Participant shall from time to time
deliver to the Depository and Clearing Agent Federal wire funds for deposit
in the Monetary Reserve Account. The Depository and Clearing Agent agrees to
deposit any such funds in the Monetary Reserve Account, and thereafter to
hold such funds as bailee and agent exclusively for APX. Upon any such
deposit of funds by the Participant, the Participant shall relinquish all of
its right, title and interest to such funds.
2.3 ACCOUNT BOOKS AND RECORDS; STATEMENTS. The Depository and
Clearing Agent shall maintain books and records identifying all of the funds
on deposit from time to time in the Monetary Reserve Account. Not less
frequently than once each calendar month, the Depository and Clearing Agent
shall provide APX with a statement showing the activity in the Monetary
Reserve Account during the preceding calendar month, including any interest
credit made pursuant to Section 2.4. APX shall make available to the
Participant the information contained in such statement.
2.4 INTEREST CREDIT. The Monetary Reserve shall be maintained
as a separate account which shall bear interest at the rate negotiated from
time to time between APX and the Depository and Clearing Agent. For purposes
of the amount required to be maintained by the Participant as a Monetary
Reserve Facility, on the tenth Business Day of each month, the Participant
shall receive a credit in an amount equal to the interest earned on funds on
deposit from time to time during the preceding calendar month Monetary
Reserve Account. From and after such date, subject to Section 2.5, the
Monetary Reserve Account shall include the amount of such interest credit as
funds on deposit in the Monetary Reserve Account. Not less frequently than
annually, APX shall direct the Depository and Clearing Agent to distribute to
the Participant, to the extent that sufficient funds remain in the Monetary
Reserve Account (and provided that after any such withdrawal the Participant
would be in compliance with its requirement to maintain a Monetary Reserve
Facility), an amount equal to the interest earned on funds held on deposit in
the Monetary Reserve Account.
2.5 WITHDRAWALS FROM THE MONETARY RESERVE ACCOUNT. The Parties
agree that the funds held on deposit in the Monetary Reserve Account shall be
withdrawn by the Depository and Clearing Agent if and in the event that
sufficient funds are not on
D-2
deposit in the Participant's Settlement Account by any Payment Due Date. In
such case, APX shall initiate a draw on the Monetary Reserve Account or on
any other Monetary Reserve Facility maintained by the Participant in an
amount sufficient to discharge the Participant's obligations. IF THE
PARTICIPANT MAINTAINS MORE THAN ONE FORM OF A MONETARY RESERVE FACILITY, THE
DETERMINATION OF WHICH MONETARY RESERVE FACILITY OR FACILITIES WILL BE DRAWN
IN THE EVENT THAT SUFFICIENT FUNDS ARE NOT ON DEPOSIT IN THE PARTICIPANT'S
SETTLEMENT ACCOUNT BY ANY PAYMENT DUE DATE WILL BE MADE BY APX IN IT'S SOLE
AND ABSOLUTE DISCRETION. Except as otherwise agreed by APX and the
Participant or as otherwise provided in Section 2.4 above or Section 2.6
below, APX shall not initiate any withdrawals from the Monetary Reserve
Account.
2.6 REFUND OF DEPOSIT. Upon the request of the Participant, if
the Participant is no longer a Participant in the APX Markets and no longer
has any remaining liabilities under the APX Terms, or if the Participant has
provided a different form of Monetary Reserve Facility, APX shall direct the
Depository and Clearing Agent to distribute to the Participant the balance
reflected in the Monetary Reserve Account, and upon receipt of such funds by
the Participant, APX shall automatically and without further action by any
Party relinquish all of its right, title and interest in and to such funds.
Any security interest which attached with respect to such funds pursuant to
Section 3 shall automatically terminate upon receipt of such funds by the
Participant without further action by any Party.
2.7 ISO OBLIGATIONS. The Participant acknowledges and agrees
that funds on deposit from time to time in the Monetary Reserve Account may
be used by APX to satisfy certain requirements imposed on APX by the ISO.
3. SECURITY INTEREST.
The Parties each intend and agree that the Participant shall
relinquish all of its right, title and interest in and to funds deposited in
the Monetary Reserve Account, with the intended result that upon the
occurrence of any Insolvency Proceeding relating to the Participant, the
Monetary Reserve Account will not be subject to the automatic stay pursuant
to the Bankruptcy Code. Notwithstanding the foregoing (and in the event that
the Participant is determined to have any right, title or interest in the
Monetary Reserve Account), the Participant hereby grants to APX a security
interest in any right, title or interest of the Participant in and to funds
deposited and on deposit from time to time in the Monetary Reserve Account,
together with all proceeds thereof, to secure its obligations under the
Service Agreement and the APX Terms, including its obligations to other
Participants and the ISO, and to secure its obligations under any other
agreement to which the Participant and APX are party. The Depository and
Clearing Agent acknowledges the grant of such security interest, and agrees
to accept instructions with respect to the Monetary Reserve Account from APX
only (and not from the Participant).
D-3
4. INDEMNIFICATION OF THE DEPOSITORY AND CLEARING AGENT.
4.1 INDEMNIFICATION. Each Participant agrees to indemnify and hold
harmless the Depository and Clearing Agent from and against any and all loss,
liability, cost, damage and expense, including, without limitation,
reasonable attorneys' fees which the Depository and Clearing Agent may suffer
or incur by reason of any action, claim or proceeding brought against the
Depository and Clearing Agent arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates unless such
action, claim or proceeding is the result of gross negligence or willful
misconduct by the Depository and Clearing Agent.
4.2 NO DUTY TO DEFEND. The Depository and Clearing Agent shall be
under no duty to institute or defend any type of proceeding which may arise
regarding this Agreement.
5. DUTIES LIMITED.
The Depository and Clearing Agent undertakes for the benefit of APX
and the Participant to perform only the duties expressly set forth in this
Agreement and such other responsibilities incidental to the performance of
its service as contemplated herein. The Participant acknowledges and agrees
that APX and the Depository and Clearing Agent are party to certain other
agreements related to the APX Markets, that the Participant has no rights or
obligations under any such other agreement, and that it is not an intended
third party beneficiary of any such agreement.
6. THE DEPOSITORY AND CLEARING AGENT FEES.
The Depository and Clearing Agent shall be entitled to compensation
for its services under this Agreement in accordance with the fee schedule
negotiated from time to time by APX and the Depository and Clearing Agent.
The APX Terms provide that the Participant shall be responsible to deposit
funds for the payment of such fees to the Settlement Account on or before
each Payment Due Date.
7. FEDERAL POWER AGENCIES. [Include only if the Participant is a Federal
Power Agency.]
7.1 LIMITATION OF LIABILITY. Claims against the United States under
this Agreement are subject in all respect to applicable acts of Congress and
to regulations of the Secretary of Energy established thereunder, including
but not limited to the statutory limitations on the liability of the United
States under the Federal Tort Claims Act, the Xxxxxx Act and the Equal Access
to Justice Act.
7.2 APPROPRIATIONS. Notwithstanding anything else herein to the
contrary, where the obligations of this Agreement extend beyond the current
fiscal year, participation by the United States is contingent upon Congress
making the necessary appropriation for expenditures by the United States
after such current year shall have expired. In case such appropriations
necessary to carry out obligations of the United States under this Agreement
are not made, the Participants release the United States from
D-4
all liability due to the failure of Congress to make such appropriation. The
provisions of this Section 7.2 are not intended to release any claims against
the United States that may be made under the Federal Tort Claims Act, the
Xxxxxx Act or the Equal Access to Justice Act.
7.3 PRIVATIZATION. The provisions of this Section VII shall not apply
to any governmental or quasi-governmental agency that is privatized or
otherwise ceases to be owned by the United States.
8. EFFECTIVE DATE; TERM; RESIGNATION AND REPLACEMENT OF THE DEPOSITORY
AND CLEARING AGENT.
8.1 EFFECTIVE DATE. The Agreement shall become effective upon the
execution and delivery of a counterpart hereof by each Party hereto.
8.2 TERM. This Agreement shall remain in full force and effect unless
and until the Participant is no longer a Participant in the APX Markets and
no longer has any remaining liabilities under the APX Terms.
8.3 RESIGNATION BY THE DEPOSITORY AND CLEARING AGENT. The Depository
and Clearing Agent may resign at any time upon not less than thirty (30) days
prior written notice to the Participant and APX.
8.4 REPLACEMENT OF THE DEPOSITORY AND CLEARING AGENT. Under certain
circumstances as separately agreed between APX and the Depository and
Clearing Agent, APX has the right to replace the Depository and Clearing
Agent. If APX exercises such right, APX shall name a new Depository and
Clearing Agent which shall perform the functions of the Depository and
Clearing Agent hereunder.
8.5 SUCCESSOR DEPOSITORY AND CLEARING AGENT(S). Any successor to the
Depository and Clearing Agent shall have capital and surplus in excess of
$250,000,000. Any resignation or replacement pursuant to Section 8.3 or
Section 8.4 shall become effective upon the appointment of a successor to
such Party by APX, and the delivery by the resigning Depository and Clearing
Agent to its successor all funds on deposit in the Monetary Reserve Account.
9. MISCELLANEOUS.
9.1 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Notwithstanding
anything in this Agreement to the contrary, the Depository and Clearing Agent
shall refrain from any action which, in its reasonable judgment, or in the
judgment of APX of which the Depository and Clearing Agent has written
notice, would violate any law, rule or regulation of any governmental body or
agency having jurisdiction over APX or the Participant.
9.2 AMENDMENTS. This Agreement shall not be modified or amended
without the consent of each Party, which consent must be evidenced by an
instrument in writing executed by each Party, or by their respective
successors or permitted assigns.
D-5
9.3 SEVERABILITY. In the event that any one or more of the provisions
of this Agreement shall for any reason be held to be unenforceable in any
respect, such unenforceability shall not affect any other provision of this
Agreement that can be given effect without the unenforceable provision, and
this Agreement shall be construed as if such unenforceable provision or
provisions had never been contained herein.
9.4 APX TERMS. In the event of any inconsistency between this
Agreement and the Service Agreement and/or the APX Terms, as between APX and
the Participant, the provisions of the Service Agreement and/or the APX Terms
(the case may be) shall govern the rights and obligations of such Parties.
9.5 CUMULATIVE REMEDIES. The remedies provided under this Agreement
shall be cumulative and not exclusive, and the election of one remedy shall
not preclude pursuit of other remedies.
9.6 ENFORCEMENT AND WAIVER. Any waiver of any provision of this
Agreement must be in writing and will not be implied by any usage of trade,
course of dealing or course of performance. Any delay or failure of a Party
to exercise, or any partial exercise of, such Party's rights and remedies
under this Agreement shall not operate to limit or otherwise affect such
rights or remedies. Any waiver of performance hereunder shall be limited to
the specific performance waived and shall not, unless otherwise expressly
stated in writing, constitute a continuous waiver or a waiver of future
performance.
9.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective
successors and permitted assigns (including any successor to the Depository
and Clearing Agent pursuant to Section 8). Except as contemplated by Section
8, no Party shall assign or delegate any of its rights or obligations under
this Agreement without the prior written consent of the other Parties, and
any such attempted assignment or delegation shall be void and of no force or
effect.
9.8 INDEPENDENT PARTIES. Nothing in this Agreement shall be construed
or represented as creating a partnership, trust, fiduciary or any similar
relationship between or among the parties hereto. Except as expressly set
forth herein, no Party is authorized to act on behalf of the other Party and
none shall be considered the agent of the other.
9.9 NOTICES. Notices or consents of any kind required or permitted
under this Agreement shall be in writing and shall be deemed duly delivered
if delivered in person or if mailed by certified mail, return receipt
requested, telegraph, postage prepaid, or by Fax Transmission with receipt
retained by sender, to the appropriate Party as follows:
D-6
If to the Depository and Clearing Agent:
Bankers Trust Company
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to APX:
Automated Power Exchange, Inc.
00000 Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Participant: To the address on the signature page of
this Agreement.
Any Party from time to time may change its address for the purpose of notices to
that Party by giving a similar notice specifying a new address.
9.10 FURTHER ASSURANCES. Each Party shall do all necessary acts and
make, execute, and deliver such written instruments as shall from time to time
be reasonably required to carry out the terms of this Agreement.
9.11 TIME IS OF THE ESSENCE. Each Party hereby expressly acknowledges
that time is of the essence in the performance of its respective obligations
under this Agreement.
9.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, IRRESPECTIVE OF CHOICE OF
LAW RULES THAT DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. Any
legal action or proceeding with respect to this Agreement must be brought in the
courts of the State of California or of the United States for the Northern
District of California. By execution and delivery of this Agreement, each Party
consents, for itself and in respect of its property, to the exclusive
jurisdiction of those courts. Each Party irrevocably waives any objection,
including any objection to the laying of venue or based on the grounds of FORUM
NON CONVENIENS, which it may now or hereafter have to the bringing of any action
or proceeding in such jurisdiction in respect to this Agreement or any document
related thereto.
9.13 CROSS DEFAULT. Any default under this Agreement by APX or the
Participant shall be considered a default of the APX Terms and the Settlement
Account Agreement and shall entitle APX and/or the Participant, as applicable,
to exercise the rights as are available herein and therein.
D-7
9.14 SURVIVAL OF RIGHTS. Any provisions of this Agreement which
contemplates performance or observance subsequent to termination shall survive
any such termination and shall continue in full force and effect.
9.15 HEADINGS. Section headings and subheadings contained in this
Agreement are for ease of reference only and shall not affect the substantive
interpretation of this Agreement.
9.16 CONSTRUCTION. No provision of this Agreement shall be construed or
interpreted for or against APX because APX drafted or caused its legal
representative to draft the provision.
9.17 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
D-8
IN WITNESS WHEREOF, each of APX, the Depository and Clearing Agent, and
the Participant has caused this Agreement to be executed by its duly authorized
officer as of this 21st day of April, 1998.
--------------------------------------------------------------------------------
APX: AUTOMATED POWER EXCHANGE, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: Vice President
--------------------------------
--------------------------------------------------------------------------------
DEPOSITORY AND CLEARING AGENT: BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. May
------------------------------------
Name: Xxxxxxx X. May
---------------------------------
Title: Vice President
--------------------------------
--------------------------------------------------------------------------------
PARTICIPANT: FULL POWER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: President
--------------------------------
ADDRESS OF PARTICIPANT:
00000 Xxxxxxx Xx Xxx. 000
---------------------------------------
Xxxxxxxx, XX 00000
---------------------------------------
---------------------------------------
Telephone: (000) 000-0000
----------------------------
Telecopy: (000) 000-0000
-----------------------------
--------------------------------------------------------------------------------
D-9
