EXHIBIT 10.101
WATER, HEAT, STEAM AND HOT WATER SUPPLY
AND USAGE AGREEMENT
THIS AGREEMENT, (the "Agreement") is made as of this 3rd day
of October, 1996, by and between Tangshan Cayman Heat and Power
Company, Ltd., a Sino-foreign equity joint venture company (the
"Supplier") and Tangshan Pan-Western Heat and Power Company,
Ltd., a Sino-foreign equity joint venture company (the "User").
R E C I T A L S:
1. Supplier intends to acquire, own and operate certain water
xxxxx and pipeline systems, and to make available for
industrial use, water, heat, steam and hot-water (the
"Products") and their associated facilities.
2. User intends to construct, own and operate a 1x50 MW heat
and power, coal-fired generation facility to be located in
Luannan County, Hebei Province, People's Republic of China
(the "Projected").
3. Supplier desires to sell its Products and User desires to
obtain such Products from the Supplier all upon the terms
and conditions contained herein below.
AGREEMENT:
NOW THEREFORE, based upon the mutual promises made and
benefits to be derived as a result of this Agreement, Supplier
and User hereby agree as follows:
1. Term. The term of this Agreement shall be for a period of
twenty (20) years from the date hereof.
2. Sale of Products. Supplier shall use its best efforts to
procure the Products to User and User shall purchase all of
its requirements for such products from the Supplier in
accordance with the terms of this Agreement. In connection
with Supplier's furnishing of the Products, Supplier shall
keep all records with respect to volumes, pressures, and
quantities of the Products made available to the User for
purchase and perform, directly or indirectly all technical
and administrative functions related to its sale of the
Products and User's purchase and payment for all such
Products.
3. User's Obligations. User shall be required, irrevocably and
unconditionally to purchase from Supplier all of its
requirements for the Products unless Supplier gives notice
that at any specific time such Products are not available
for sale to and purchase by User.
4. Supplier's Obligations. Supplier's obligations to User
shall be on a best efforts basis only. Supplier shall not
be limited or prohibited as a result of this Agreement from
making the Products available and from selling such
Products to any other party. Supplier's only obligation to
User in such event will be to give notice to User of the
quantities, volumes and rates of supply that will be
available for purchase by User. Notwithstanding the above,
Supplier intends to devote approximately fifty percent
(50%) of its resources to a sale of Products directly to
the User.
5. Price. The price to be paid by the User for the Products
sold to it shall be a variable rate calculated quarterly
(or at such other intervals as Supplier may require) as
followers:
A Products Usage fee shall be paid as follows:
[***] FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT.
6. Payment. The Price due to be paid to Supplier as calculated
in Number 5 above, will be calculated by the Supplier in
Renminbi (or any successor official currency of the People's
Republic of China) on at least a quarterly basis and an
invoice for said amount shall be presented to User. User
shall have ten (10) days within which to pay said invoice.
Such payment will be made in Renminbi in cash or by check or
wire transfer to such account as Supplier may direct that
payment be made. Any amounts not paid within said ten (10)
days shall bear interest at the annualized rate of fifteen
percent (15%) (or if such rate is required to be lower under
Chinese law, rule or regulation, then at the highest rate
permitted thereby).
7. Dispute as to Payment. In the event User does not agree
with the invoiced amount, then User shall give notice to
Supplier with the said ten (10) day period, of the amount
in dispute, the reason for any discrepancy in the
calculation presented by Supplier, and User's calculation
of the charges then due. Supplier and User shall meet
amicably to resolve any such discrepancy, but in any event,
User shall make payment for all portions of the invoiced
amount that are not in dispute. within the time required
for payment.
8. Address for Notices. Any notice required to be given and
any other written communication between Supplier shall be given
as provided below:
If to Supplier: Tangshan Cayman Heat and Power Company, Ltd.
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: _______________________
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
with a copy to: Pan-Western Energy, LLC
If to User: Tangshan Panda Heat and Power Company, Ltd.
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: _________________________
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Pan-Western Energy, LLC
9. Delay and Waiver. No delay or omission to exercise any
right, power or remedy accruing to Supplier or User under
this Agreement or on account of any breach or default hereof
shall impair any such right, power or remedy of the other
Party nor shall it be construed to be a waiver of any such
breach or default or an acquiescence therein, or of or in
any similar breach or default thereafter occurring. Any
waiver, permit consent or approval of any kind or character
must be in writing and shall be effective only to the extent
specifically set forth in such writing.
10. Entire Agreement. This Agreement contains all the terms and
conditions finally agreed between Supplier and User with
respect to the subject matter hereof and any oral
negotiations or prior agreements of the Parties are hereby
merged with and into this final Agreement. This Agreement
may only be amended or modified by an instrument in writing
signed by both Supplier and User.
11. Governing Law. This Agreement shall be governed by and be
construed and interpreted in accordance with the Laws of the
[People's Republic of China].
12. Severability. In case if any one or more of the provisions
contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
13. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Supplier and User have caused this
Agreement to be duly executed by their officers, duly authorized
as of the day and year first above written.
USER: TANGSHAN PAN-WESTERN HEAT AND POWER COMPANY, LTD.
By: _______________________
Title: Chairman
Name: Xxxxxx X. Xxxxxx
SUPPLIER: TANGSHAN CAYMAN HEAT AND POWER COMPANY, LTD.
By: _______________________
Title: General Manager
Name: Xxxxx X. Xxxxxxxx
