EXHIBIT 10.94.05
FULL SETTLEMENT AND RELEASE AGREMEENT
This Full Settlement and Release Agreement ("Agreement"), is entered into
and effective this 30th day of June, 1999, by and between Duke/Fluor Xxxxxx
International ("DFDI"), a general partnership formed pursuant to the laws of the
State of Nevada, U.S.A., Duke/Fluor Xxxxxx International Services ("DFDIS"), a
general partnership formed pursuant to the laws of the State of Nevada, U.S.A.
(DFDI and DFDIS are collectively hereinafter referred to as "DFD Parties"),
Tangshan Panda Heat and Power, Ltd., a Chinese Joint Venture company, Tangshan
Pan-Western Heat and Power Co., Ltd., a Chinese Joint Venture company, Tangshan
Cayman Heat and Power Co., Ltd., a Chinese Joint Venture company, and Tangshan
Pan-Sino Heat Co., Ltd. a Chinese Joint Venture company, (Tangshan Panda Heat
and Power, Ltd., Tangshan Pan-Sino Heat Co., Ltd. are collectively, hereinafter
referred to as "Owner Parties"). DFD Parties and Owner Parties are hereinafter
referred to individually as "Party" and collectively as "Parties."
WHEREAS, Owner Parties and DFD Parties are parties to and entered into the
following described agreements (collectively, the "O & M Agreements") covering
and pertaining to the rendering of construction, operations and maintenance
services by certain The DFD Parties to the Owner Parties' Luannan County
Coal-Fired Power Plant located in, Luanan County, Hebi Provience, China (the
"Project"):
1. That certain Offshore Services Agreement Construction Phase, dated effective
as of January 1, 1998 and executed by and between Owner Parties and
Duke/Fluor Xxxxxx International, a general partnership.
2. That certain Offshore Services Agreement Commercial Operations Phase, dated
effective as of January 1, 1998 and executed by and between Owner Parties
and Duke/Fluor Xxxxxx International, a general partnership.
3. That certain Second Amended and Restated On-Shore Operation and Maintenance
Agreement Construction Phase, dated January 1, 1998 and executed by and
between Owner Parties and Duke/Fluor Xxxxxx International Services, a
general partnership.
4. That certain Second Amended and Restated On-Shore Operation and Maintenance
Agreement Commercial Operations Phase, dated January 1, 1998 and executed by
and between Owner Parties and Duke/Fluor Xxxxxx International Services, a
general partnership.
WHEREAS, Owner Parties and DFD Parties have mutually agreed to terminate the
O & M Agreements and the services to be performed with respect thereto, in
accordance with the terms, provisions and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the covenants hereinafter set
forth, and other good and valuable consideration, the Parties covenant,
stipulate and agree as follows, to-wit:
1. The Parties hereby covenant, stipulate and agree to terminate and bring
to conclusion in accordance with the terms of this Agreement and effective as of
the date hereof, each of the O & M Agreements, including any and all amendments,
modifications, alterations, understandings, agreements, letter agreements or
other documents arising therefrom or relating thereto, made or entered into on
or before June 30, 1999.
2. Before July 15, 1999, the Owner Parties shall cause to be paid through
Panda Global Energy Company, to DFDIS, the sum of $ 2,200,000.00 (Two million,
Two hundred thousand and No/100 Dollars). This amount will be paid in U.S.
Dollars, by wire transfer to such bank account as DFDIS shall designate in
writing. This amount excludes DFD's June 1999 invoice and true-up to be invoiced
by and paid to DFDIS with thirty (30) days of receipt of invoice. These Payments
by the Owner Parties to the DFD Parties shall satisfy any and all payment
obligations of Owner Parties to the DFD Parties under all of the O&M Agreements,
including any and all amendments, modifications, alterations, understandings,
agreements, letter agreements or other documents arising therefrom or relating
thereto.
3. Except for any continuing obligations expressly provided in this
Settlement and Release Agreement, the Owner Parties and the DFD Parties,
including each of their respective affiliates, subsidiaries and parent
companies, and the respective officers, employees, directors, agents, and
representatives of each of them, do hereby fully, completely and forever waive,
relieve, release, remise, acquit and discharge the other, from and for any and
all claims, demands, causes of action, damages, expenses, lawsuits or
liabilities arising from or relating to the O&M Agreements or to the services
provided in connection therewith, including, without limitation, any claim for
non-payment, breach, bad faith, performance or lack thereof, consequential or
indirect damages and damages.
4. With respect to payments made by Owner Parties to the DFD Parties for DFD
Parties' personnel under the Second Amended and Restated On-Shore Operation and
Maintenance Agreement, Construction Phase, the Owner Parties shall make any and
all required filings with respect to taxes on the income of such DFD Parties'
expatriate personnel, and the Owner Parties shall bear all costs associated with
such taxes and shall hold the DFD Parties harmless from any such taxes,
including any related penalties or interest. The Owner Parties shall provide
copies of all such filings to Xxx XxXxxxxx, or his successor designated in
writing by the DFD Parties.
5. This Agreement shall be binding upon and shall inure to the benefit of
the Parties, together with their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned parties have caused their duly authorized
representatives to execute this Agreement effective as of the date first above
written.
TANGSHAN PANDA HEAT AND POWER, LTD.,
a Chinese Joint Venture company
By: _________________________________
Title: ______________________________
TANGSHAN PAN-WESTERN HEAT AND POWER CO., LTD.,
a Chinese Joint Venture company
By: _________________________________
Title: ______________________________
TANGSHAN CAYMAN HEAT AND POWER CO., LTD.,
a Chinese Joint Venture company
By: _________________________________
Title: ______________________________
TANGSHAN PAN-SINO HEAT CO., LTD.,
a Chinese Joint Venture company
By: _________________________________
Title: ______________________________
DUKE/FLUOR XXXXXX INTERNATIONAL,
a General Partnership
By: _________________________________
Title: ______________________________
DUKE/FLUOR XXXXXX INTERNATIONAL SERVICES,
a General Partnership
By: _________________________________
Title: ______________________________
