JOINT VENTURE AGREEMENT
THIS AGREEMENT entered into this _______th day of ___________, 1997 by
and between Interstate Industrial Corp., with its main office at 000 Xxx
Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx, 00000, X.X.X. (hereafter referred to as
"IIC"), and U.S. Plastic Lumber Corp., with its main office at 0000 Xxxxxx
Xxxx, Xxxxx 000X, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as
(U.S.P.L.)), (referred to herein singularly or collectively as "Party" or
"Parties").
RECITALS
The Parties have agreed to cooperate in a Joint Venture to be called
IIC/U.S.P.L. Joint Venture (hereinafter referred to as the "Joint Venture")
for the purpose of submitting a joint bid (hereinafter referred to as the
"Tender") to the U.S. Army Corps of Engineers, New York District, (hereinafter
referred to as the "Owner") for the Dredging Services Invitation to Bid
#DACASI-97-B-31 (hereinafter referred to as the "Project"), and if successful,
to execute a contract with the Owner for the performance of the Project
(hereinafter referred to as the "Contract").
The Parties hereto desire to enter into a Joint Venture Agreement, in
order to fix and define between themselves their respective interests and
liabilities in connection with the performance of the Contract if and when it
is awarded.
NOW THEREFORE, it is hereby agreed as follows:
ARTICLE 1
Object of Agreement
Formation. The Parties hereby agree to form the Joint Venture and
constitute themselves as Joint Venturers pursuant to the provisions hereof for
the limited purposes and scope set forth in this Agreement.
Purpose. This Joint Venture is entered into solely for the purpose of
bidding the Project and if awarded the bid, performing the contract and for
no other purpose. The Parties shall have the power to do all things
incidental to carrying out the obligations of the Joint Venture in completing
the Project. The Parties agree that the Joint Venture is a temporary
association and that it will not place any limitation or liability on the
Parties beyond the specific undertakings contained in this Agreement nor will
the Joint Venture be entitled to or be used by the Parties to bid on other
projects or contracts except as may be specifically agreed by the Parties in
writing.
No General Agent. To the fullest extent permissible under New Jersey Law,
the Parties agree that their relationship is confined to the limited purpose
set forth in Section 1.2.
Nothing herein contained shall constitute any Party the general agent of the
other Party, or in any way prevent or hinder either Party from carrying on its
respective business or businesses for its own benefit.
Name and Trade Name Certificate. The name of the Joint Venture shall be
IIC/U.S.P.L. J.V.. The Executive Committee (as defined herein) shall file a
trade name certificate in all places required by law indicating that the
Parties are doing business under the name "IIC/U.S.P.L. J.V.."
Contracts With Parties. The Joint Venture may (and the Parties may agree
to) enter into contracts with the Parties or affiliates in connection with the
performance of the Contract. said contracts, if entered into, will only be
entered into by the Parties in their capacity as contractors and not in their
capacity as Parties such that the transactions between the Joint Venture and a
Party will be transactions between a partnership (for tax purposes) and its
partner not acting in a capacity of a partner within the meaning of Section
707(a) of the Code.
ARTICLE 2
Duration
Commencement Term. The Joint Venture shall commence as of the date hereof.
The term of this Joint Venture shall continue until the earlier of: (i) Award
as of the Contract to a third party, (ii) final completion of the Project,
including all distributions of net profits, cash flow and assets have been
made and the Parties conclude that the purposes for which the Joint Venture
was formed have been discharged and completed, (iii) the agreement of all the
Parties to dissolve, (iv) the election of the Non-Defaulter pursuant to
Section 15.3.
Withdrawal of a Party. No Party shall withdraw from the Joint Venture
except upon written approval of the other Party in its sole discretion.
Termination before Contract. In the event this Agreement is terminated
pursuant to Section 2.1(i), each Party shall bear its own costs and
out-of-pocket expenses incurred in the preparation and submission of the Bid
Proposal.
ARTICLE 3
Participation
Interest of the Parties. Except as otherwise provided in this Agreement,
the respective interests of the Parties (the "Percentage Interests") in the
Joint Venture and the Venture's capital, assets, Distributable Cash and Net
Profits (as defined herein) are as follows:
Party Percentage Interest
IIC 50%
U.S.P.L. 50%
Obligations. Each of the parties will be jointly and severally liable to
the Owner or to the other third parties in connection with any liabilities,
damages, expenses or claims under or arising out of this Agreement, the
Contract or the performance of work in connection with the Project. Any such
liability to the Owner or other third parties shall be subject to allocation
between the parties in accordance with their Percentage Interest in the Joint
Venture.
Any capital contribution and distribution shall be made by both Parties in
accordance with pro rata interests set forth in Section 3.1.
ARTICLE 4
The Executive Committee
Executive Committee. The business and affairs of the Joint Venture shall
be managed by an executive committee composed of two persons who shall be
responsible for the overall management of the Joint Venture (the "Executive
Committee"). One representative shall be appointed by each Party. Once
appointed, the names of the representatives shall be appended to this
Agreement as Schedule A.
ARTICLE 5
Duties and Responsibilities of Executive Committee
The Executive Committee shall have total control over the Joint Venture.
It shall supervise Joint Venture activities and may look into all matters and
questions related to the performance of the Contract.
Chairman. The Representative appointed by IIC shall preside as the
Chairman of the Executive Committee (hereinafter referred to as the
"Chairman"). In the absence of the Chairman at any meeting of the Executive
Committee, the Representative appointed by IIC shall act as Chairman.
Schedule and Notice. The Chairman shall call Executive Committee meetings
when necessary in his opinion or when requested in writing, fax or telex, but
in any case at intervals of less than two months during the course of the
Project. If a meeting shall not have been convened by the Chairman so as to
take place within ten (10) days after the request of the other Party's
Representative, such Representative shall have power to call an Executive
Committee meeting on not less than ten (10) days notice, and shall have a
similar right in case a meeting shall not have been called within two (2)
months of the previous meeting. Notice for a meeting may be by registered
mail, telex or fax on ten days notice, and shall always contain the agenda of
the meeting in question.
Quorum. A quorum shall be constituted only when both IIC Representatives
are present at an Executive Committee meeting. Decisions of the Executive
Committee shall be unanimous.
Impasse. Where there is an impasse on any part of the agenda, the issue
shall be resolved by the Managing Partner, which decision shall be final and
binding upon the Joint Venture, except that if the issue to be resolved is a
non-operational issue then such issue will be resolved pursuant to Article 20.
Minutes. The Chairman shall ensure that minutes of meetings be taken and
shall forward the same to the Parties in due time. The minutes of meetings
shall be deemed approved if within a period of 14 days after receipt of such
minutes, no objections are raised.
Written Consent. The Executive Committee may take decisions without a
meeting being held provided both Representatives are in favor of such a
procedure and give their unanimous consent in writing, by telex or by fax. A
decision so taken shall be included in the minutes of the next meeting with
the date on which it was taken.
Implementation. The Chairman shall ensure that all resolutions approved by
the Executive Committee are properly implemented.
ARTICLE 6
The "Managing Partner"
IIC is appointed as the Managing Partner and shall provide and maintain
monthly progress reports for each job performed hereunder.
The Joint Venture shall maintain or cause to be maintained monthly
financial statements. U.S.P.L. shall maintain or cause to be maintained a
complete set of records, statements, and accounts concerning the total
operations of the Joint Venture, in which books shall be entered, on a monthly
basis, fully and accurately, each transaction pertaining to the Joint Venture.
Each party to this venture may inspect such books at any reasonable time.
Periodic audits shall be made of such books at such times and by such persons
as the parties may direct or upon the written request of a party and copies of
the audit reports shall be furnished to each party. Upon completion of the
Construction Contract, a final audit shall be made and copies of such audit
report shall be furnished to each of the parties.
6.3 Fee. The parties agree that the fee from an independent accounting firm
shall be payable by the Joint Venture for its services as defined in the
Agreement.
ARTICLE 7
Project Management
Project Executive. Except as provided otherwise herein, the supervision
and management of the work called for by the Project and any and all matters
relating thereto, including supervision of activities in the field, project
management, purchasing, and, in addition, the processing and checking and
approval of shop drawings, the making of change estimates, and the control of
information for the field, shall be under the general charge and supervision
of a Project Executive nominated by the Executive Committee. The Project
Executive shall not be changed without the consent of the Executive Committee.
The Project Executive shall report to and be subject to the overall control,
management and direction of the Executive Committee.
Duties. Subject to other provisions of this Agreement, the duties of the
Project Executive shall include:
responsibility for the day to day supervision, direction and management of the
Project in accordance with the policies and the procedures established by the
Executive Committee;
coordination of the work for the Project, including that of subcontractors;
enter into, execute, modify and amend subcontracts with respect to the Project
subject to guidelines of the Executive Committee;
execute change orders with subcontractors, approve requisitions, withhold
progress payments for inadequate work, provide releases and make final payment
to subcontractors subject to guidelines of the Executive Committee; and
execute Owner change orders and perform under notices to proceed with the
Owner, subject to guidelines of the Executive Committee.
Reports. The Project Executive shall provide the following reports to the
Executive Committee:
Monthly progress and cost monitoring report showing the status of the Project,
including:
Description of actual progress made during the month compared with scheduled
progress, including plans to correct negative float items;
Status of RFI's, Change Orders, or other modifications to the contract.
Report to be in form approved by the Executive Committee;
Cost performance vis-a-vis budget with commentary on planned approach to
improving negative variances;
Cost to complete and job profitability analysis;
Status of all disputes, claims and update on administrative strategy relative
thereto;
Quality Assurance and Safety Program compliance; and
EEO and DBE requirement compliance.
Information. During the Project, the Project Executive shall also provide
the Executive Committee and Managing Partner periodically, at its request,
with the following which it shall retain for the Venture: (i) a copy of the
change order log, (ii) copies of all contracts, change orders and purchase
orders of the Venture, (iii) copies of monthly requisitions to the Project;
(iv) disputed change orders, (v) a copy of the OSHA log, (vi) evidence of the
payment of all withholding taxes and insurance premiums for all personnel
employed in connection with the Project by any Party, (vii) a daily log book,
and (viii) any other appropriate information required by the Executive
Committee.
It will be the obligation and responsibility of U.S.P.L. to select the port
transfer facility, and the Joint Venture shall use whatever port transfer
facility is selected by U.S.P.L. as long as said facility is competitive in
its pricing.
The obligation of the Joint Venture as set forth in Section 7.5 shall exist on
the current bid which is the subject of this contract or on any future bids or
contracts with which the Joint Venture chooses to pursue.
ARTICLE 8
Working Capital Loan
Working Capital Loan. U.S.P.L. shall provide a working capital loan to
the Joint Venture in the amount of $1.5 million dollars. The Joint Venture
shall issue a promissory note to U.S.P.L. for $1,500,000 and provide a blanket
lien to U.S.P.L. on all assets of the Joint Venture. The principal and
interest on this loan shall be repaid by the Joint Venture at an interest rate
of 5% payable upon completion of the Project, if not otherwise paid off
earlier. The Joint Venture will re-pay the principal of the loan with excess
monthly working capital.
(a) Accelerated Payments of Principal and Interest. The Joint Venture agrees
to make accelerated payments of principal and interest in the event the Cash
account, as stated on the Balance Sheet of the Joint Venture in any period,
exceeds $2,000,000. All cash in excess of $2,000,000 shall be paid to USPL as
a reduction of principal and interest.
Bank Accounts. Bank account(s) (the "Accounts") for and in the name of the
Joint Venture shall be opened by the Managing Partner. Withdrawals from bank
accounts shall be made by parties approved by the Executive Committee, except
as follows: (i) no withdrawals will be made as profit distribution without
the consent of both parties and (ii) monthly withdrawals pursuant to Article
8.1 to pay back the loan of U.S.P.L. shall never require Executive Committee
approval and shall be automatically payable each month by the Controller of
the Joint Venture.
Deposit of Money. All payments received by the Joint Venture under the
Contract or from others in connection with the Project shall be promptly
deposited in the Accounts and all invoices received by the Joint Venture shall
be paid by check drawn on the Accounts.
ARTICLE 9
Construction Equipment
Equipment. All equipment ("Equipment") which the Executive Committee deems
necessary to enable the Joint Venture to complete the Contract, either at the
port transfer facility or at the mine reclamation site, shall be obtained by
the Joint Venture in the manner approved by the Executive Committee.
Equipment may be purchased, or in the event that it is more economical, such
Equipment may be leased (including the leasing of equipment from either Party)
at rates and terms to be approved by the Executive Committee,except that if
equipment is leased from either party it will be done on a cost basis. All
Equipment will be purchased from funds available in the Accounts. The
proceeds of any sale of equipment will be deposited into the Accounts and will
become of the funds of the Joint Venture. IIC will sign as a guarantor on all
equipment which is financed by lease or purchase.
In the event the Joint Venture is terminated for any reason, whether after the
Initial Project or any subsequent Project the Joint Venture may choose to
perform, the Joint Venture shall provide Consolidated Technologies, Inc. (CTI)
with an option to purchase any or all equipment for the fair market value of
such equipment, or if leased, for the remaining payments on the lease.
ARTICLE 10
Staff and Personnel
Project Executive. The site organization shall be headed by the Project
Executive. The Parties shall agree upon the key technical and administrative
staff that shall be made available by the Parties to the Joint Venture. All
other personnel and labor shall be engaged and discharged directly by the
Joint Venture. IIC shall provide the expertise and local support personnel
for operations at the port transfer facility at the sole cost and expense of
the Joint Venture.
Replacements. The Project Executive is entitled to request the replacement
of any senior staff (such level to be determined by the Executive Committee)
provided that Executive Committee approval is obtained. The replacement shall
be effected as soon as is practically possible. Executive Committee approval
is not necessary in the case of the dismissal and replacement of staff other
than senior staff.
ARTICLE 11
Accounting
Joint Venture Accounting. Separate books of account for the Joint Venture
shall be kept and maintained by U.S.P.L. at the Joint Venture's expense for
the entry of all accounts.
Fiscal Year. The fiscal year and all the accounting or tax matters of the
Joint Venture shall be maintained on a fiscal and calendar year basis,
commencing on January 1 and ending December 31.
Selection of Accountants. The accountants ("Accountants") of the Joint
Venture shall be a firm of independent certified public accountants selected
by U.S.P.L.
Accountant's Duties. The Accountants retained by U.S.P.L. shall prepare an
audited balance sheet of the Joint Venture as at the end of each fiscal year,
together with related statements of income and retained earnings and changes
in financial position with respect to such fiscal year, and a calculation of
Distributable Cash and the means used to calculate such items. Within ninety
(90) days after the end of each year, the Joint Venture shall furnish copies
of such financial statement to each Party.
ARTICLE 12
Income Tax Returns; Tax Accounting; Tax Elections
Preparation of Tax Returns. Federal, state and local income tax returns of
the Joint Venture shall be prepared, as required, by the Accountants for the
Joint Venture. Copies of all tax returns of the Joint Venture shall be
furnished for review and approval by the Executive Committee at least thirty
(30) days prior to the statutory date for filing, including extension thereof,
if any. If the Executive Committee shall fail to approve any such return, an
application for extension of time to file shall be timely filed by the
Managing Partner. All tax returns shall be prepared using the % of completion
contract method of accounting, to the extent permissible, except for interest
and miscellaneous income and expenses, which shall be reported currently.
Method of Allocation. The proportionate part of each item of income gain,
deduction or credit earned, realized or available by or to the Joint Venture
shall be allocated to the Parties in accordance with the Percentage Interest
of each Party. Losses shall be allocated as provided in Section 3.2.
Section 754 Election. The Joint Venture shall, if requested by either
Party, make the election under Section 754 of the Internal Revenue Code.
Tax Decision Not Specified. Tax decisions and elections for the Joint
Venture not provided for herein must be approved by the Executive Committee.
Notice of Tax Audit. Prompt written notice shall be given to the Parties
upon receipt of advice that the Internal Revenue Service intends to examine
Joint Venture income tax returns for any year.
Tax Matters Party. The Managing Partner shall be the tax matter partner for
the Joint Venture in accordance with Section 6231 of the Code and shall have
all powers and authority conferred thereunder on a tax matters partner.
ARTICLE 13
Guaranties and Insurance
Joint Venture Insurance. The Executive Committee shall obtain insurance
coverage for the Joint Venture from an agency or agencies selected by the
Executive Committee. The amounts and types of insurance shall be determined
by the Executive Committee in at least the minimum amounts set forth in the
Contract so as to adequately protect the Joint Venture and the Parties from
any accident or claim which may arise in the course of completing the Project.
The cost of insurance attributable to the Joint Venture shall be chargeable
thereto.
Additional Insurance. The Parties shall maintain the levels and kinds of
insurance coverage that they carried prior to entering this Agreement
throughout the term of the Joint Venture. Each Party shall also maintain such
insurance as may be required of it pursuant to any separate contract entered
into between the Joint Venture and the Party.
Bonding. The Joint Venture shall procure payment and performance bonds in
the penal sum of the Contract as required by the Owner. The bonds shall be
procured in the name of the Joint Venture and shall be an expense of the Joint
Venture. IIC and U.S.P.L. shall sign as Guarantors on the bonds, if
necessary. Each of the Parties agrees to execute applications and indemnity
agreements required in connection with bonds, guaranties or other securities
furnished with respect to the Project, provided that all Obligations assumed
by the Parties or any of them as guarantors or indemnitors in connection with
any such bonds or other security shall be shared and limited in accordance
with the Percentage Interests set forth in Section 3.2 herein. If for any
reason, a Party sustains any Obligations (whether in the nature of joint and
several or otherwise) or is required to pay any losses arising out of or
directly connected with the performance of the Contract, or the execution of
its Percentage Interest, the other Party shall promptly reimburse such Party
the amount or amounts of losses paid and/or Obligations assumed by such Party
of such Party's Percentage Interest as set forth in Section 3.2.
ARTICLE 14
Liability
Indemnity. If for any reason a Party sustains any Obligations (whether in
the nature of joint and several or otherwise) or is required to pay any losses
arising out of or directly connected with the performance of the contract or
the execution of any surety bonds or indemnity agreements in connection
therewith which are in excess of its Percentage Interest, as set forth in
Section 3.2, the other Party shall promptly reimburse such Party the amount or
amounts of the losses paid and/or Obligations assumed by such Party in excess
of such Party's Percentage Interest, as set forth in Section 3.2, provided
that any such losses and/or Obligations are not the result of such Party's
gross negligence, reckless acts or omissions or unlawful conduct and, in
furtherance thereof, each of the Parties hereby agrees to indemnify the other
Party against and to hold the other Party harmless from any and all such
losses and provided further, however, that the provisions of this subparagraph
shall be limited to losses or that are directly connected with, or arise out
of the performance of the Contract or the execution of any bonds or indemnity
agreements in connection therewith and shall not relate to or include any
incidental, indirect or consequential losses that may be sustained or suffered
by a Party nor any losses and/or Obligations resulting from a Party's gross
negligence, reckless acts or omissions or unlawful conduct.
ARTICLE 15
Termination
Default. Upon the occurrence of an Event of Default, as defined in this
Section, with respect to a Party ("Defaulter"), the non-defaulting Party
("Non-Defaulter") may seek money damages and/or an equitable remedy in
accordance with Articles 22 and 23 of this Agreement. All such remedies may
be pursued simultaneously by the Non-Defaulter and such remedies may be
cumulatively granted.
Should the Managing Partner default the other Party shall become the Managing
Partner, automatically and immediately upon serving written notice.
Definitions and Cure Period. The occurrence of any of the following events
shall constitute an event of default ("Event of Default") hereunder on the
part of Defaulter if within thirty (30) days following notice of such default
from the Non-Defaulter (ten (10) days if the default results solely from the
nonpayment of monies), the Defaulter fails to pay such monies, or in the case
of non-monetary defaults, fails to commence substantial efforts to cure such
default and thereafter fails within a reasonable time not to exceed an
additional thirty (30) days to prosecute to completion with diligence and
continuity the curing of such default.
the failure by a Non-Contributing Party to make any Capital Contribution to
the Joint Venture'
a material breach or violation by a Party of any of the terms, agreements,
representations, covenants or provisions of this Agreement;
institution by a Party of proceedings of any nature under any laws of the
United States or of any state, whether now existing or subsequently enacted or
amended, for the relief of debtors, including, but not limited to , any
chapter of the Federal Bankruptcy Code wherein such Party is seeking relief as
a debtor;
a general assignment by a Party for the benefit of creditors;
the institution against a Party of a case or other proceeding under any
section or chapter of the Federal Bankruptcy Code as now existing or hereafter
amended or becoming effective, which proceeding is not dismissed, stayed or
discharged within a period of twenty (20) days after the filing thereof, or if
stayed, which stay is thereafter lifted without a contemporaneous discharge or
dismissal of such proceeding;
admission by a Party in writing of its inability to pay its debts as they
mature; or
execution or other judicial seizure of all or any substantial part of a
Party's assets or Joint Venture interest, or any part thereof, or the
appointment of a receiver, custodian, trustee or like officer, to take
possession of assets if such attachment, execution, seizure or appointment:
(a) exceeds $100,000.00; (b) remains undismissed or undischarged for a period
of twenty (20) days after the levy or appointment; or (c) if the occurrence of
such attachment, execution or other judicial seizure or appointment may have a
materially adverse effect upon the performance by said Party of its
obligations under this Agreement as determined by the Non-Defaulter; provided,
however, that said attachment, execution, seizure or appointment shall not
constitute an Event of Default hereunder if said Party posts a bond sufficient
to fully satisfy the amount of such claim or judgment within fifteen (15) days
after the levy thereof or appointment and the Party's assets are thereby
released from the lien of such attachment or the appointment is vacated.
Rights of Non-Defaulting Party.
On occurrence of an Event of Default, the Non-Defaulter shall have the right
(subject to Section 18.3.4) to: (i) exclude the Defaulter from further
participation in the Joint Venture and in the management and control thereof
and may take over its interest under this Agreement without releasing the
Defaulter from its obligation to bear its share of Net Losses, or (ii)
terminate the Joint Venture and do all thing necessary to wind up the affairs
of the Joint Venture, including the completion of the Project. The
Non-Defaulter shall have the opportunity to assume the responsibilities of the
Defaulter under this Agreement without incurring liability of any kind to the
Defaulter for the Net Profit earned after the Event of Default. No share in
any Distributable Cash shall be payable to the Defaulter before completion of
the Project and the collection of all receipts and the payment of all
Obligations.
The Non-Defaulter shall have the right to retain for the completion of the
Project all assets of the Joint Venture and all Equipment and materials
provided by the Parties or hired, purchased or acquired by the Defaulter until
the completion of the Project. The Defaulter shall execute and do all deeds
and documents and things necessary or expedient to facilitate the exercise of
such right and allow the Non-Defaulter to proceed with the performance of the
Contract (including without prejudice to the generality of the foregoing the
operation of any Accounts in the name of the Joint Venture without reference
to the Non-Defaulter). In such event all reference in this Agreement to the
administration and direction of the Joint Venture by the Parties (or the
Executive Committee) shall be deemed to exclude the Defaulter.
Upon completion or sooner termination of the Contract and receipt of all
amounts due under it the Non-Defaulter shall account to the Defaulting Party
(who shall be entitled to receive) an amount equal to its Capital Contribution
together with its share of any Net Profits earned and received as assessed up
to the date when it was excluded from the management of the Joint Venture.
Upon the occurrence of any Event of Default set forth in subparagraphs
(iii), (iv), (v) or (vi) of Section 18.2, the Joint Venture or the Party which
is not subject to the aforesaid provisions (the "Remaining Party"), shall be
entitled to request that the Party which is subject to the aforesaid
provisions (the "Bankrupt Party"), or its successor, provide adequate
assurances of future performance. Failure to provide such adequate assurances
within a thirty (30) day period of request therefore, shall entitle the
Remaining Party to declare that the Bankrupt Party shall cease to have any
voice in the management of the Project, including a loss of its right to a
vote in the Executive Committee or any interest in the performance of the
Contract thereafter, or in the Joint Venture or in any of the Joint Venture's
assets, and its delegation of authority to its representative to the Executive
Committee shall be deemed cancelled. The representative to the Executive
Committee designated by the Remaining Party shall have full power and
authority to proceed, and wherever it is provided in this Agreement that any
act, consent or decision of the Parties or the Executive Committee required,
shall be deemed to mean the act, consent or decision of the solvent Party,
excluding the Insolvent Party.
Dissolution and Liquidation.
Upon the happening of any one of the events set forth in Section 2.1, the
Joint Venture shall be immediately dissolved.
Upon the expiration or termination of the Joint Venture or following the
Parties' decision to terminate the Joint Venture, the Joint Venture shall
immediately commence to wind up its affairs and the Executive Committee shall
proceed with reasonable promptness to liquidate the Joint Venture. During the
period of winding up, the Executive Committee shall continue to act as such
and shall make all decisions relating to the conduct of the business or
operations of the Joint Venture, within the power delegated to it under this
Agreement, during the winding up period. Every reasonable effort shall be
made to dispose of the assets of the Joint Venture so that the distribution
may be made to the Parties in cash. If it becomes necessary to distribute
non-cash assets, such assets shall be distributed according to the Parties'
Percentage Interests, based upon the net fair market value of the distributed
assets.
Liquidation proceeds shall be distributed and applied in the following
order or priority:
To the payment of debts and Obligations of the Joint Venture including the
completion of the Contract and expenses of liquidation.
Repayment of the working capital loan of U.S.P.L. as set forth in Article 8.
To the setting up of any reserves which the Executive Committee may deem
reasonably necessary for any contingent or unforeseen liability or obligations
for the Joint Venture, such reserves to be maintained for a period not longer
than one (1) year except to the extent any claims may have been made or
threatened against the Joint Venture during such period and which are then
unliquidated, and then only until the liquidation of such claims.
To the Parties having balances in their Capital Accounts in the amount
thereof.
If after allocation of any gains or loss on sale or disposition of all or
substantially all of the Joint Venture's property and distribution of all
assets of the Joint Venture, the Capital Account balance of any Party
indicates a debit balance and the Capital Account balance of the other Party
indicates a credit balance, the Party having the debit balance shall be
required to contribute to the Joint Venture sufficient cash to eliminate all
such debit balances. Such cash shall be distributed together with the other
proceeds of liquidation as provided in Section 15.4.3.
ARTICLE 16
Confidential Information
Confidential Information. All documentation, data and information, whether
technical, business, financial or otherwise, acquired by a Party from the
other Party shall be treated as confidential and proprietary by the recipient
and shall not be used other than for the purposes of performing such acquiring
Party's duties as set forth in the Agreement or the Contract without the prior
written consent of the Party from which the information was acquired, unless
such information:
Is, or later becomes, public knowledge other than by breach of
responsibilities in the foregoing paragraph;
Is in the possession of the recipient with the full right to disclose prior to
receipt from another Party; or
Is independently received by the recipient from a third party, with no
restrictions on disclosure.
ARTICLE 17
Publicity
Publicity. Either of the Parties may advertise as it thinks desirable
subject to consultation with the other Party. When the subject matter of any
advertisement involves the other Party or the Project, such advertisements and
relevant publications shall be subject to the prior written approval of the
other Party and where practicable make due reference to and acknowledgment of
the Project performed or to be performed by the other Party under the
Contract.
ARTICLE 18
Assignment
No Assignment. No Party hereto shall sell or assign or otherwise transfer
in any manner its Percentage Interest (including any rights to Net Profits or
Distributable Cash or any other proceeds), or any part thereof, in the Joint
Venture without first obtaining in advance the written consent of the other
Party, which consent may be withheld in the sole and absolute discretion of
the Party. Any purported transfer without such consent shall be void and of
no effect. Upon transfer of a Party's interest, with consent of the other
Party, the transferee shall assume in writing and agree to be bound by all of
the transferring Party's obligations.
Tax Consideration. Notwithstanding any provision to the contrary contained
herein, no Party shall transfer all or part of its Percentage Interest in the
Joint Venture to any person or entity if such transfer would result in a
termination of the Joint Venture under Section 708(b)(1)(B) of the code or any
successor section. The non-transferring Party shall have the power to require
postponement of the transfer of all or any potion of a Party's interest for
such period of time as may be required to prevent the termination of the Joint
Venture. As a condition to the consummation of any transfer, the Party
proposing to transfer all or any part of its Percentage Interest shall, at its
cost, provide an unqualified opinion of counsel, which opinion, and counsel
must be satisfactory to the non-transferring Party. The Party proposes to
transfer all or any part of its interest to any person or entity shall defend,
indemnify and hold harmless the other Party from any loss, cost, damage
(including additional taxes which the Party or the non-transferring Party is
required to pay as a result of such termination), or expenses resulting from a
transfer in violation of this section.
ARTICLE 19
Governing Law
Governing Law. This Agreement shall be construed, interpreted, enforced
and governed by and in accordance with the laws of the State of New Jersey
without giving effect to its choice of laws rules.
ARTICLE 20
Dispute Resolution
All disputes arising in connection with the interpretation and/or
application of this Agreement shall be referred to the Chief Executive
Officers of both Parties for their decision.
If the dispute cannot be settled amicably by the Chief Executive Officers
within thirty (30) days of the reference thereto, then either party shall be
entitled to submit the dispute to a mutually acceptable outside mediator by
written notice to the other. Such mediation shall be concluded within thirty
(30) days of properly being requested. Any such mediation shall be
confidential and non-binding on the parties.
If the mediation fails to resolve the dispute, or if the mediation cannot
be concluded within the aforementioned thirty (30) day period, then either
party may refer to the dispute to a panel of three arbitrators to be resolved
in accordance with the current Construction Industry Arbitration Rules of the
American Arbitration Association. Within thirty (30) days from the date when
either party refers the matter to arbitration, each party shall nominate its
respective arbitrator. The two arbitrators so named shall, within thirty (30)
days from the date of their nomination, nominate the third arbitrator, who
will preside over the arbitration panel. If either party fails to nominate
its arbitrator, or if the two arbitrators fail to agree on the choice of the
third arbitrator within the period provided for above, the American
Arbitration Association shall appoint the said arbitrator or arbitrators at
the request of either party within 10 days.
The parties agree that the decision of the arbitration panel shall be
rendered no later than ninety (90) days from the date of designation of the
third arbitrator.
The place of arbitration shall be in the State of New Jersey.
In the event of proceedings before an arbitration panel, the losing party
in such proceedings agrees to pay the reasonable legal fees and other costs
incurred by the prevailing party.
The decision of the arbitration panel shall be final and binding on both
parties.
Pending resolution of any dispute, both parties agree to continue diligent
performance of this Agreement and the Contract.
ARTICLE 21
Business Address and Language
Address. The business address of the Joint Venture shall be in:
000 Xxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
ARTICLE 22
Validity
Validity. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument. No changes, amendments or Modifications of this Agreement shall
be valid unless reduced to writing and signed by both Parties hereto.
ARTICLE 23
Severability
Severability. The provisions of this Agreement shall be deemed independent
and severable and the invalidity or partial invalidity or enforceability of
any one provisions or portion thereof shall not affect the validity or
enforceability of any other provision hereof.
ARTICLE 24
Offset
Right to Offset. The Joint Venture shall have the right to deduct from
amounts which are due and payable to each Party by the Joint Venture any
amounts which are due and payable by each Party to the Joint Venture.
ARTICLE 25
Soliciting Employees
No Solicitation. Each Party agrees that upon entering into this Agreement
and for a period of not less than two years following the final completion of
the Contract, said Party will refrain from making offers, enticements and/or
inducements to cause employees of the opposite Party to leave the employ of
that Party and enter into employment with the other Party, and/or any
subsidiary of the Party, making such offers, enticements and/or inducements
without the written consent of the appropriate Party. This provision is
limited to employees with whom a Party worked on this Project.
ARTICLE 26
Force Majeure
Excuse of Performance. Neither Party shall be considered in default of its
obligations hereunder to the extent that any such obligation is prevented or
delayed by any cause, existing or future, which is beyond the reasonable
control of such party.
ARTICLE 27
Amendments
Amendment. This Agreement supercedes all prior agreements between the
Party in connection with the Joint Venture, written or oral. Any amendments
or modifications to the terms hereof shall only be effected in writing signed
by both Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Joint Venture
Agreement to be duly executed as of the date set forth above.
WITNESS EARTH CARE / U.S.P.L. Corp.
_________________________ By: _____________________________
INTERSTATE INDUSTRIAL CORPORATION
_________________________ By: _____________________________
STATE OF NEW JERSEY }
} _________________, 1997
COUNTY OF XXXXXX }
Before me, ______________________, the undersigned officer, personally
appeared ____________________and ____________________, know to me, or
satisfactorily proven, to be the persons whose name is subscribed to the
within instrument and acknowledged that he/she executed the same for the
purposes therein contained.
IN WITNESS WHEREOF I hereunto set my hand.
________________________________
Commissioner of the Superior Court
Notary Public
My Commission Expires:
SCHEDULE A
Party Representative
IIC Industrial Corp. Xxxxx XxXxxxxxx
U.S.P.L. Xxxx Xxxxxxxxx
SCHEDULE B
Insurance
Insurance Coverage ...................................Minimum Amount
Coverages to be determined by the Executive Committee.
