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UTILITIES REQUIREMENTS AGREEMENT
by and between
* COMPANY, L.P.
and
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C.
Dated as of September 4, 2001
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* Confidential treatment requested.
(C)▇▇▇▇▇▇▇▇▇-Americas-I, L.L.C. 2001
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS; CONSTRUCTION AND INTERPRETATION
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Section 1.1 Definitions 2
Section 1.2 Construction and Interpretation 9
ARTICLE 2 PROVISION OF UTILITY REQUIREMENTS
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Section 2.1 Provision of Utility Requirements 10
Section 2.2 Utility Requirements Limitations 10
Section 2.3 Forced Outage 10
Section 2.4 Outage Dispute Resolution 10
Section 2.5 Non-Material Forced Outage 11
ARTICLE 3 COMPLIANCE COMMITTEE
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Section 3.1 Compliance Committee 11
ARTICLE 4 METERING
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Section 4.1 Output Meters 12
Section 4.2 Input Meters 12
Section 4.3 Access 12
Section 4.4 Testing and Adjustment 12
ARTICLE 5 OPERATION AND MAINTENANCE
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Section 5.1 Operation and Maintenance Obligation 13
Section 5.2 Operating Committee 13
Section 5.3 Scheduled Maintenance 14
Section 5.4 Access 14
Section 5.5 Maintenance of Records 14
Section 5.6 Employees; Leased Employees 14
Section 5.7 Cooperation 15
ARTICLE 6 MODIFICATIONS AND SALE OF EXCESS
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Section 6.1 Modifications 15
Section 6.2 Modification Requests 16
Section 6.3 No Interference with Operations 16
Section 6.4 Sale of Excess 16
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ARTICLE 7 ADMINISTRATION OF THE PROVISION OF MANAGEMENT
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SERVICES AND COMMODITIES
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Section 7.1 Administration of the Provision of
Certain Services and Commodities 16
Section 7.2 Specific Duties of ▇▇▇▇▇▇▇▇▇-Americas 16
Section 7.3 Standard of Management Services 17
Section 7.4 Audit 17
ARTICLE 8 UTILITY REQUIREMENT CHANGES AND CHANGES IN COSTS
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Section 8.1 Manufacturing Plant Operations Reductions 17
Section 8.2 Increased Utility Requirements 17
Section 8.3 Changes in Costs 17
ARTICLE 9 SERVICE FEES
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Section 9.1 Service Fees 18
Section 9.2 Billing and Payment 18
Section 9.3 Late Payments and Disputed Invoices 18
Section 9.4 Interest 19
Section 9.5 Adjustments 19
Section 9.6 Audit 19
Section 9.7 No Set Off Against Service Fees 19
Section 9.8 Electric Power Maximum Price 19
ARTICLE 10 SAVINGS ASSESSMENT
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Section 10.1 Capital Savings and Non-Capital Savings 20
Section 10.2 Utilities Savings 20
Section 10.3 Utilities Savings Target 20
ARTICLE 11 TERM AND TERMINATION; ACCESS
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Section 11.1 Term 20
Section 11.2 Early Termination 21
Section 11.3 Manufacturing Plant Shutdown;
Sale; Termination Fee 21
Section 11.4 Failed Performance 21
Section 11.5 Removal On Termination 22
Section 11.6 Adjustment of Termination Fee Term 22
Section 11.7 Right of Access 22
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ARTICLE 12 TERMINATION FOR DEFAULT
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Section 12.1 Event of Default 22
Section 12.2 Remedies 23
Section 12.3 Remedies Cumulative 24
ARTICLE 13 CHANGES IN TECHNOLOGY AND LAWS
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Section 13.1 Technology Changes 24
Section 13.2 Changes in Law 25
ARTICLE 14 INSURANCE
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Section 14.1 ▇▇▇▇▇▇▇▇▇-Americas Insurance 25
Section 14.2 Waiver of Subrogation 26
Section 14.3 Responsibility for Employees and Contractors 26
ARTICLE 15 REPRESENTATION AND WARRANTIES
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Section 15.1 Representations and Warranties of* 27
Section 15.2 Representations and Warranties of
▇▇▇▇▇▇▇▇▇-Americas 28
ARTICLE 16 AUDIT RIGHTS AND FINANCIAL REPORTING
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Section 16.1 Audit Rights 29
Section 16.2 Financial Reporting 29
ARTICLE 17 CONFIDENTIALITY
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Section 17.1 Non-Disclosure and Non-Use 29
Section 17.2 Required Disclosure 30
ARTICLE 18 FORCE MAJEURE
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Section 18.1 Definition 30
Section 18.2 Strikes 31
Section 18.3 Burden of Proof 31
Section 18.4 Excused Performance 31
Section 18.5 Service Fees 31
Section 18.6 Termination for Force Majeure 31
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ARTICLE 19 INDEMNITY
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Section 19.1 Reciprocal General Indemnification 32
Section 19.2 Reciprocal Environmental Indemnification 32
Section 19.3 Survival 33
ARTICLE 20 DISPUTE RESOLUTION
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Section 20.1 By the Parties 33
Section 20.2 Failure to Resolve; Arbitration 33
Section 20.3 No Suspension of Performance 34
ARTICLE 21 LIMITATION OF LIABILITY AND DISCLAIMERS
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Section 21.1 Limitation of Liability 34
Section 21.2 Disclaimers 34
ARTICLE 22 ADDITIONAL CONTRACTUAL CONTINGENCIES
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Section 22.1 Conditions Precedent 35
Section 22.2 Transfer of Assets 35
ARTICLE 23 MISCELLANEOUS PROVISIONS
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Section 23.1 Notices 35
Section 23.2 No Waiver 37
Section 23.3 Entire Agreement 37
Section 23.4 Binding Effect and Assignment 37
Section 23.5 Independent Contractor; No Partnership 38
Section 23.6 Governing Law 38
Section 23.7 Estoppel Certificate 38
Section 23.8 Further Assurances 38
Section 23.9 Press Release and Announcements 38
Signature Page 39
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LIST OF SCHEDULES
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Schedule 1.1 Parties, Manufacturing Plant
Schedule 2.1 Provision of Utilities and Specifications
Schedule 5.1 Operation and Maintenance
Schedule 6.1 Utility Conservation Measures
Schedule 7.2 Management Services
Schedule 9.1 Service Fees
Schedule 10.2 Utility Baseline Costs
Schedule 10.3 Utilities Shared Savings
Schedule 11.3 Termination Fee Schedule
Schedule 11.4 Termination Fee - Failed Performance
Schedule 15.1.4 Required Governmental Consents - *
Schedule 15.1.5 Non-Compliance Issues
Schedule 15.2.4 Required Governmental Consents - ▇▇▇▇▇▇▇▇▇-Americas
Schedule 18.5 Force Majeure Service Fees Percentage
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UTILITIES REQUIREMENTS AGREEMENT
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This UTILITIES REQUIREMENTS AGREEMENT ("Agreement"), dated as of the
4th day of September, 2001 ("Effective Date"), is by and between * COMPANY,
L.P., a Delaware Limited Partnership, on behalf of itself and its Affiliate or
division identified on the attached Schedule 1.1 (collectively referred to as "
* "), and the ▇▇▇▇▇▇▇▇▇-AMERICAS limited liability company identified on the
attached Schedule 1.1 ("▇▇▇▇▇▇▇▇▇-Americas").
RECITALS:
WHEREAS, * owns and operates the Manufacturing Plant identified on
Schedule 1.1, which requires electric power, Steam, Hot Water, Refrigeration,
Chilled Water, Compressed Air Service, and Water and Wastewater service
(collectively, the "Utilities") that are generated and/or distributed throughout
the Manufacturing Plant; and
WHEREAS, ▇▇▇▇▇▇▇▇▇-Americas is engaged in the business of providing
Utilities to commercial, industrial and institutional customers; and
WHEREAS, the membership interest in ▇▇▇▇▇▇▇▇▇-Americas is owned by
▇▇▇▇▇▇▇▇▇ Service, Inc., a Michigan corporation ("ASI"), and Americas Power
Partners, Inc., a Colorado corporation ("APP"); ASI provides expertise in
Utilities generation and distribution; and
WHEREAS, * desires to buy from ▇▇▇▇▇▇▇▇▇-Americas its full
requirements for those certain Utilities used at the Manufacturing Plant, which
are specifically set out in the attached Schedule 2.1; and
WHEREAS, ▇▇▇▇▇▇▇▇▇-Americas' desires to supply * full
Utilities Requirements for the Manufacturing Plant; and
WHEREAS, after the Effective Date, ▇▇▇▇▇▇▇▇▇-Americas will
facilitate the efficient delivery of the Utilities through to
the * Utility distribution system of the Manufacturing Plant; and
WHEREAS, in addition to providing * with Utility Requirements,
▇▇▇▇▇▇▇▇▇-Americas will also manage and administer * purchase and supply of
certain Commodities in accordance with the terms and conditions of this
Agreement; and
WHEREAS, ▇▇▇▇▇▇▇▇▇-Americas intends to provide Utility Services to
third party purchasers under the terms set out herein in Section 6.4.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties intending to be
legally bound hereby covenant and agree as follows:
Confidential Treatment
ARTICLE 1
DEFINITIONS; CONSTRUCTION AND INTERPRETATION
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1.1 Definitions. For the purposes of this Agreement, the following
capitalized words, terms and phrases used specifically in this Agreement,
including in the preamble and the recitals hereto, shall have the meanings set
forth in this Section 1.1:
"A/A Assets" means the assets owned by ▇▇▇▇▇▇▇▇▇-Americas.
"Affiliate" means, with respect to any Person, any other Person whom
directly or indirectly controls, is controlled by, or is under common control
with, such Person. As used in this definition, "control", including its
correlative meanings "controlled by" and "under common control with," means the
direct or indirect ownership of more than fifty percent (50%) of the outstanding
capital stock or other equity interest having ordinary voting power.
"Aggregate Utilities Savings" means the total calculated correlating
dollar amount of Utility Savings, in the aggregate, across all the *
manufacturing facilities serviced by ▇▇▇▇▇▇▇▇▇-Americas or one or more of its
Affiliates and as set forth in more detail under Section 10.3.
"Agreement" means this Utilities Requirements Agreement, together with
all exhibits, schedules, appendices, amendments and supplements hereto, as
construed in accordance with the provisions hereof including, but not limited
to, Section 1.2 hereof.
"▇▇▇▇▇▇▇▇▇-Americas" means the limited liability company identified in
the attached Schedule 1.1
"Bankruptcy" means that (a) a Party files a voluntary petition in
bankruptcy or is adjudicated a bankrupt or insolvent, or files any petition or
answer or consent seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any
present or future applicable Law relating to bankruptcy, insolvency, or other
relief for debtors, or seeks or consents or acquiesces in the appointment of any
trustee, receiver, conservator or liquidator of such Party or of all or any
substantial part of its properties; (b) a court of competent jurisdiction enters
an order, judgment or decree approving a petition filed against any Party
seeking a reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future bankruptcy Law or
Law relating to insolvency or other relief for debtors, and such Party
acquiesces in the entry of such order, judgment or decree or such order,
judgment or decree remains unvacated and unstayed for sixty (60) days from the
date of entry thereof, or any trustee, receiver, conservator or liquidator of
such Party or of all or any substantial part of its property is appointed
without the consent or acquiescence of such Party and such appointment remains
unvacated and unstayed for sixty (60) days; (c) a Party admits its inability to
pay its debts as they mature; (d) a Party gives notice to any governmental body
of insolvency or pending insolvency; or (e) a Party makes an assignment for the
benefit of creditors or takes any other similar action for the protection or
benefit of creditors.
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"Business Day" means any day other than a Saturday, Sunday or other
day on which banks in the state in which the Manufacturing Plant is located are
authorized or required to be closed.
"Calendar Year" means any twelve (12) month period commencing on
January 1 and ending on the following December 31.
"Capital Savings" means the dollar value of those efficiencies in the
processes or equipment associated with delivery to and receipt of the Utilities
by the Manufacturing Plant resulting from ▇▇▇▇▇▇▇▇▇-Americas' investment of
capital.
"Chilled Water" means chilled water and/or brine solution, expressed
in ton-hours, produced and delivered to * at the Delivery Point.
"Chilled Water Output Meter" means the flow meters, pressure
compensators, temperature compensators, integrators and related equipment
utilized in determining the amount of Chilled water Service delivered by
▇▇▇▇▇▇▇▇▇-Americas at the applicable Delivery Point.
"Commodity" means water, electric power, Gas or other fuels, or other
similar materials used in the generation of Utilities for the Manufacturing
Plant, but not including Steam and Compressed Air, which can be valued on a
common exchange or a commonly accepted index.
"Compliance Committee" shall have the meaning given in Article 3
hereof.
"Compressed Air" means compressed air service meeting the
specifications shown on Schedule 2.1, expressed in cubic feet at specified
pressure, and delivered to * at the Delivery Point.
"Compressed Air Output Meter" means the meters, integrators and
related equipment utilized in determining the amount of Compressed Air delivered
by ▇▇▇▇▇▇▇▇▇-Americas at the applicable Delivery Point. The Compressed Air
Output Meter shall be upstream of the applicable Delivery Point, as described on
Schedule 2.1.
"Condensate" means water measured and expressed in thousand
gallons from the condensation of the Steam provided by ▇▇▇▇▇▇▇▇▇-Americas
to * .
"Confidential Information" has the meaning ascribed to such term in
Section 17.1 hereof.
"CPI" means the Consumer Price Index for the state in which the
Manufacturing Plant is located as published in the Wall Street Journal.
"Day" means the twenty-four (24) hour period commencing at 12:00
midnight Local Prevailing Time.
"Delayed Payment Rate" means a per annum rate of interest (computed on
the basis of a 365-day year) equal to the lesser of (a) the prime commercial
lending rate as quoted from time to time by The Wall Street Journal as the Prime
Rate under the column known as "Money Rates",
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Confidential Treatment
plus two percent (2%), and (b) the maximum rate permitted by applicable Law of
the state in which the Manufacturing Plant is located.
"Delivery Point" means the physical points described on Schedule 2.1,
as the context requires, at which electric power, Steam, Chilled Water, Hot
Water, Compressed Air, Refrigeration, water, Wastewater, or Condensate are to be
delivered, made available, provided and measured, with possession, control and
ownership transferred, by one Party to the other, as applicable, pursuant to the
provisions of this Agreement.
"Due Date" shall have the meaning given in Section 9.2.
"Effective Date" has the meaning ascribed to such term in the preamble
hereto.
"Electric Utility" means the electrical distribution Utility Provider
with which the Manufacturing Plant is interconnected.
"Emergency" means any circumstance that may arise and constitute a
significant hazard to the safety of, or a material interference with, the safe
or environmentally sound provision of Utility Services or operation of the
Manufacturing Plant and which requires immediate action.
"Environmental Law" means any Law existing as of the date hereof
relating to the protection of the Environment or Hazardous Materials, including
without limitation: the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C.(SS) 9601 et seq.); the Hazardous
Material Transportation Act, as amended (49 U.S.C. (SS) 1801 et seq.); the
Resource Conservation and Recovery Act, as amended (42 U.S.C. (SS) 6901 et
seq.); the Toxic Substances Control Act, as amended (42 U.S.C. (SS) 7401 et
seq.); the Clean Air Act, as amended (42 U.S.C. (SS) 7401 et seq.); the Federal
Water Pollution Control Act, as amended (33 U.S.C. (SS) 1251 et seq.); or any
regulations promulgated pursuant to said Laws.
"Event of Default" shall have the meaning given in Section 12.1.
"Excess" has the meaning ascribed to such term in Section 6.4 of this
Agreement.
"Fair Market Value" means the price that a willing buyer (who is
neither a lessee in possession nor a used equipment dealer) would pay for the
Equipment in an arm's-length transaction to a willing seller under no compulsion
to sell. The Fair Market Value shall be determined by an appraisal performed by
an independent certified appraiser selected jointly by the Parties. In the event
the Parties are unable to agree on a single appraiser, the Parties shall each
appoint one independent certified appraiser. The two appointed appraisers shall
then, by agreement, appoint a third independent certified appraiser. The Fair
Market Value shall then be determined by agreement of at least two of the
appointed appraisers. Any appraisal performed hereunder shall be deemed
effective for the lesser of ninety (90) days or until any substantial
modification of the appraised item is performed so as to affect the Fair Market
Value.
"Fiscal Year" means any twelve (12) month period commencing on the
Thursday closest to May 1, and ending on the Wednesday closest to April 30.
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"Forced Outage" means the cessation of supply of the Utilities in
compliance in all material respects with any one or more of the specifications
set forth on Schedule 2.1 under circumstances that do not constitute a Scheduled
Maintenance Outage or a Force Majeure Outage.
"Force Majeure" has the meaning ascribed to such term in Section 18.1
hereof.
"Force Majeure Outage" means an Outage due to a Force Majeure.
"GAAP" means generally accepted accounting principles in the United
States of America, which shall include, without limitation, official
interpretations thereof by the Financial Accounting Standards Board and its
successors.
"Gas" means pipeline quality natural gas.
"Good Operating Practice" shall mean the practices, methods, and acts
normally engaged in recommended or approved by the American Boiler Manufacturers
Association for operation of industrial power plant facilities, during the
relevant time period, or the practices, methods, and acts which, in the exercise
of reasonable judgment in light of the facts known at the time the decision was
made, could have been expected to accomplish the desired result consistent with
reliability, safety, expedition, the requirements of governmental agencies
having jurisdiction; such term is not intended to be limited to the optimum
practice, method or act to the exclusion of all others, but rather to constitute
a spectrum of acceptable practices, methods or acts.
"Governmental Authority" means the federal government of the United
States, the government of any state of the United States, any political
subdivision of either thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any other governmental entity, instrumentality, agency, authority or
commission.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, friable asbestos, urea formaldehyde foam insulation, and
transformers or other equipment that contain dielectric fluid containing
polychlorinated biphenyls; (b) any chemicals, materials or substances which are
now or during the Term of this Agreement become defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "pollution," "pollutants," "regulated substances," or words
of similar import, under any Environmental Law.
" * " means * Company, L.P., a Delaware Limited Partnership and
its Affiliate or division set forth on Schedule 1.1.
"Hot Water" means water at the specified pressures and temperatures
shown on Schedule 2.1, expressed in mmBtu's delivered to * at the Delivery
Point.
"Indemnitee" shall have the meaning given in Section 19.1.
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"Indemnitor" shall have the meaning given in Section 19.1.
"Input Meters" means the metering equipment associated with the
recording of Commodities received from any Utility Provider.
"ISO Conditions" means the reference temperature, humidity and
pressure conditions established by the International Standards Organization.
"Law" means any applicable federal, state, local or other constitution,
charter, act, statute, law, ordinance, code, rule, regulation or order, or
specified standards or objective criteria or requirements contained in any
applicable permit or approval, or other legislative or administrative action of
any Governmental Authority, or final decree, judgment or order of a court or
arbitration panel, or mandatory engineering, construction, safety or operating
standard or code.
"Lien" means any mortgage, pledge, security interest, lien, levy,
charge or other encumbrance of any kind, character or nature whatsoever,
including any conditional sale contract, title retention contract or other
contract giving effect to any of the foregoing.
"Local Prevailing Time" means the local time at the location of the
Manufacturing Plant.
"Losses" shall have the meaning given in Section 19.1.
"Manufacturing Plant" means the * facility set forth on Schedule 1.1.
For the purposes of this Agreement, the Manufacturing Plant shall not include
any A/A Assets.
"Management Services" shall have the meaning given in Section 7.1.
"Minimum Service Level" means a stated minimum baseline consumption
rate of Utilities that correlates directly to product produced at the
Manufacturing Plant for a given month as more fully set forth in Schedule 9.1
"Modifications" shall have the meaning given in Section 6.1.
"Month" means the period beginning at 12:01 a.m. Local Prevailing Time
on the first day of each calendar month and ending at the same hour on the first
day of the next succeeding calendar month.
"Non-Capital Savings" means the dollar value of those efficiencies
effected by ▇▇▇▇▇▇▇▇▇-Americas in the processes or equipment associated with
delivery to and receipt of the Utilities by the Manufacturing Plant resulting
from improved operating and management processes.
"Operating Committee" shall have the meaning set forth in Section 5.2.
"Operator" means the ▇▇▇▇▇▇▇▇▇-Americas Limited Liability Company
identified on Schedule 1.1.
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"Outage" means a cessation of the supply of any of the Utilities,
complying in material respects with the specifications set forth on Schedule
2.1.
"Output Meters" means the metering equipment associated with the
recording of Utilities delivered to the Manufacturing Plant.
"Party" means either * or ▇▇▇▇▇▇▇▇▇-Americas and "Parties" means both
* and ▇▇▇▇▇▇▇▇▇-Americas.
"Permit" means any authorization, consent, concession, license, permit,
certificate, waiver, privilege or approval from, filing with or notice to, any
Governmental Authority including all amendments, supplements and/or
modifications thereto.
"Person" means any individual natural person or any artificial person
including, but not limited to, any partnership (general or limited),
corporation, limited liability company, limited liability partnership,
association or other entity including any Governmental Authority.
"PPI" means the Producer Price Index for Intermediate Materials,
Supplies and Components published by the U.S. Bureau of Labor Statistics, or if
not published, then a substantially similar measure published by the U.S.
Government.
"Refrigeration" means an absorption or mechanical vapor compression
system that uses a refrigerant to absorb heat through evaporation from one area,
then reject it through condensation into another area, which is typically used
to produce (a) chilled water for comfort cooling, (b) cold or frigid water for
process use, and (c) space cooling for storage of food products.
"Regulatory Requirements" means all legal and regulatory requirements
of all Governmental Authorities and all Permit specifications related to the
operation and/or maintenance, as the same may be amended, supplemented or
otherwise modified from time to time.
"Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing, or
dumping into the soil, groundwater, surface water and ambient air of any
Hazardous Material(s).
"Scheduled Maintenance" means the ▇▇▇▇▇▇▇▇▇-Americas planned removal of
various equipment used by ▇▇▇▇▇▇▇▇▇-Americas to provide the Utility Services
from service to perform work on specific components that is scheduled in advance
and has a predetermined start date and duration (e.g., annual overhaul,
inspections, testing, major maintenance and routine maintenance).
"Scheduled Maintenance Outage" means any Outage resulting from
Scheduled Maintenance.
"Service Fee" has the meaning ascribed to such term in Section 9.1
hereof.
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"Site" means all real property upon which ▇▇▇▇▇▇▇▇▇-Americas performs
the Utility Services, including all easements, rights-of-way and other real
property used in connection with the provision of Utility Services.
"Steam" means steam at the various specified pressures and temperatures
shown on Schedule 2.1, expressed in thousand pounds ("mlb") per hour and
delivered to * at the Delivery Point.
"Taxes" means any or all federal, state and local, municipal,
occupation, severance, generation, first use, conversion, Btu's or power,
transmission, utility, gross receipts, privilege, sales, use, consumption,
excise, lease, ad valorem or property taxes, transaction, and other taxes,
governmental charges, license fees, permit fees, assessments, or increases in or
interest on or penalties relating to any of the foregoing, other than taxes
based on net income or net worth.
"Term" shall have the meaning given in Section 11.1.
"Termination Fee" shall have the meaning given in Section 11.3.
"Utilities" shall have the meaning set forth in the Recitals.
"Utilities Baseline Costs" means the calculated correlating dollar
amount against which any Utilities Savings are measured, determined as the total
utility related fixed and variable costs assigned to utility services for Fiscal
Year 2000 for the Manufacturing Plant as set out in Schedule 10.2, excluding the
price volatility of utility commodities (i.e. electricity, natural gas, fuels,
water, wastewater, etc.) and the volatility of product mix and volume. Any
change in the Utilities Savings Baseline shall be determined and agreed upon by
the Operating Committee.
"Utilities Savings" means the annually calculated correlating dollar
value of the decrease (relative to the Utilities Baseline Costs) in the total
cost of all Utilities at the Manufacturing Plant.
"Utilities Savings Aggregate Target" means the total targeted amount of
Utility Savings in the aggregate, across all the * manufacturing facilities
serviced by ▇▇▇▇▇▇▇▇▇-Americas and as set forth in more detail under Section
10.3.
"Utility Conservation Measures" means those Modification identified in
Schedule 6.1, and those which may be submitted from time to time by
▇▇▇▇▇▇▇▇▇-Americas to the Compliance Committee relating solely to the
Manufacturing Plant.
"Utility Provider" means the local public utility or other provider
that furnishes or delivers any of the Commodities.
"Utility Requirements" means the level and specifications of Utilities
required by the Manufacturing Plant as set forth on Schedule 2.1 at ISO
Conditions.
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"Utility Requirements Baseline" means the level of Utilities required
by the Manufacturing Plant as set forth on Schedule 2.1 which ▇▇▇▇▇▇▇▇▇-Americas
must maintain sufficient capacity to provide (at ISO Conditions).
"Utility Services" means the services related to providing Utilities to
the Manufacturing Plant or any third party under the terms of this Agreement.
"Wastewater" means water that has been used in the processes of the
Manufacturing Plant, which may contain contaminants making it unsuitable for
potable uses. Wastewater can be generated from food/product production,
equipment rinsing and cleaning, floor rinsing and cleaning, boiler blowdown and
dumping of off specification food products.
1.2 Construction and Interpretation.
1.2.1 Unless the context of this Agreement otherwise requires:
(a) words of any gender include each other gender; (b) words using the singular
or plural number also include the plural or singular number, respectively; (c)
the terms "hereof," "herein," "hereby," "hereto" and similar words refer to this
entire Agreement and not to any particular Article, Section, Clause, Exhibit,
Appendix or Schedule or any other subdivision of this Agreement; (d) references
to "Article," "Section," "Clause," "Exhibit," "Appendix" or "Schedule" are to
the Articles, Sections, Clauses, Exhibits, Appendix and Schedules respectively
of this Agreement; (e) the words "include" or "including" shall be deemed to be
followed by "without limitation" or "but not limited to" whether or not they are
followed by such phrases or words of like import; (f) references to "this
Agreement" or any other agreement or document shall be construed as a reference
to such agreement or document as amended, modified or supplemented and in effect
from time to time and shall include a reference to any document which amends,
modifies or supplements it, or is entered into, made or given pursuant to or in
accordance with its terms; and (g) titles or captions of Sections contained in
this Agreement are inserted only as a matter of convenience and for reference,
and in no way define, limit, extend, describe or otherwise affect the scope or
meaning of this Agreement or the intent of any provision hereof.
1.2.2 The Parties shall act reasonably and in accordance with
the principles of good faith and fair dealing in the performance of this
Agreement. Unless expressly provided that it is in the "sole discretion" of a
Party, (i) where the Agreement requires the consent, approval, or similar action
by a Party, such consent or approval shall not be unreasonably withheld or
delayed, and (ii) whenever the Agreement gives a Party a right to determine,
require, specify or take similar action with respect to a matter, such
determination, requirement, specification or similar action shall be reasonable.
1.2.3 Whenever this Agreement refers to a number of days, such
number shall refer to calendar days unless Business Days are specified.
1.2.4 All accounting terms used herein and not expressly
defined herein shall have the meanings given to them under GAAP.
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ARTICLE 2
PROVISION OF UTILITY REQUIREMENTS
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2.1 Provision of Utility Requirements. ▇▇▇▇▇▇▇▇▇-Americas shall provide
and shall have the exclusive right to provide, or cause to be provided, to
* , *'s full requirements for those Utilities set forth in Schedule 2.1. *
shall accept and take exclusively from ▇▇▇▇▇▇▇▇▇-Americas the full Utility
Requirements at the Manufacturing Plant. The quantity, quality, delivery point,
method of determining quantity and quality, and other applicable terms and
conditions of the provision of such Utilities are set forth on Schedule 2.1
attached hereto and made a part hereof. However, * shall have the right to
identify to the Operating Committee, any lower cost opportunities to obtain
Commodities and ▇▇▇▇▇▇▇▇▇-America's shall be obligated to obtain such
Commodities at a cost consistent with the recommendation of the Operating
Committee.
2.2 Utility Requirements Limitations. ▇▇▇▇▇▇▇▇▇-Americas shall not be
required to sell or make available to * the Utility Requirements (i) during a
Force Majeure Outage (subject to those obligations under Section 18.4); (ii) in
the event * fails to perform its obligations under this Agreement and upon the
expiration of the relevant cure period(s) as set out in Article 11; or (iii)
during any Scheduled Maintenance Outage pursuant to Section 5.3 of this
Agreement.
2.3 Forced Outage. If there is a Forced Outage, * shall give notice
promptly to ▇▇▇▇▇▇▇▇▇-Americas (which notice shall not be deemed to be a notice
of default under Section 12.1 hereof) specifying the nature and duration of such
Forced Outage, and ▇▇▇▇▇▇▇▇▇-Americas thereafter shall immediately commence and
diligently prosecute to cure such Forced Outage. Upon evaluation of the
necessary cure for the Forced Outage, ▇▇▇▇▇▇▇▇▇-Americas shall immediately
provide a detailed report to * of the recommended cure and the time necessary to
implement the cure. * shall not have the right, or cause any Person other than
▇▇▇▇▇▇▇▇▇-Americas, to cure such Forced Outage unless and until: (a)
▇▇▇▇▇▇▇▇▇-Americas has not commenced its cure of such Forced Outage reasonably
promptly under the circumstances after ▇▇▇▇▇▇▇▇▇-Americas' receipt of such
notice; or (b) ▇▇▇▇▇▇▇▇▇-Americas has commenced such cure reasonably promptly
but such cure is not being prosecuted thereafter by ▇▇▇▇▇▇▇▇▇-Americas with due
diligence. Notwithstanding the previous sentence, after four (4) hours of
continuous Forced Outage that ▇▇▇▇▇▇▇▇▇-Americas has not fully cured (other than
a non-material forced outage as defined in Section 2.5), * shall have the right
to order ▇▇▇▇▇▇▇▇▇-Americas to secure rental equipment and/or hire other persons
to speed the cure of the Forced Outage, and ▇▇▇▇▇▇▇▇▇-Americas shall at its
expense follow such orders, but shall be entitled to an Outage Dispute
Resolution. The time period referenced in this Section 2.3 shall commence at the
time ▇▇▇▇▇▇▇▇▇-Americas is provided with notice or otherwise becomes aware of
the Forced Outage.
2.4 Outage Dispute Resolution. In the event * orders ▇▇▇▇▇▇▇▇▇-Americas
to commit additional resources under a Forced Outage, ▇▇▇▇▇▇▇▇▇-Americas shall,
after the implementation of the * orders, have the right to seek an independent
third party review of the reasonableness of the * orders and * will refund any
sums in excess of what is
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determined to be reasonable by the independent third party, who shall be
selected by mutual agreement of the Parties based on the nature and
circumstances of the Outage and the agreed upon required qualifications.
2.5 Non-Material Forced Outage. If there is a Forced Outage that does
not result in (a) an interruption of material operations at the Manufacturing
Plant; (b) a material increase in the cost of operation of the Manufacturing
Plant; (c) an imminent threat of bodily harm to individuals or of material
damage to the Manufacturing Plant; or (d) the Manufacturing Plant not being able
to be operated in a manner consistent with the functions for which the
Manufacturing Plant were specifically designed and constructed, then such Forced
Outage shall not be deemed to be a Forced Outage under Section 2.3 above or
otherwise to be a breach of this Agreement under Section 12.1(c), and * shall
have no rights under the extended Forced Outage provisions of Sections 2.3 and
2.4 above.
ARTICLE 3
COMPLIANCE COMMITTEE
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3.1 Compliance Committee. The Parties agree to establish a committee
(the "Compliance Committee") consisting of not more than six (6) members, with
an equal number designated by each of * and ▇▇▇▇▇▇▇▇▇-Americas. The Compliance
Committee shall include members who have engineering, insurance, facility
operations and maintenance, and financing/economic modeling expertise, although
no single member shall be required to possess expertise in all of these
functional areas. The Compliance Committee shall meet at least once per quarter
to discuss, among other matters, any and all improvements, modifications and/or
project opportunities, whether capital or otherwise, which can be made in the
efficiency of the ▇▇▇▇▇▇▇▇▇-Americas or * operations in the interest of reducing
the overall energy costs incurred at the Manufacturing Plant and any change in
Laws, including Environmental Laws, which in any way may materially impact the
operations and related costs of the Utility Services. Members may attend
meetings of the Compliance Committee in person, by telephone conference or by
any other means that enables all of the members to communicate with each other.
If the Compliance Committee so determines, a sub-group of the Compliance
Committee may meet Monthly, or on such other schedule as such sub-group may
determine, for purposes of developing cost savings projects for consideration by
the entire Compliance Committee. The members of any such sub-group shall include
an equal number of representatives of each of * and ▇▇▇▇▇▇▇▇▇-Americas. Except
as otherwise provided herein, the Parties may, but are not obligated to,
participate in any recommendation made by the Compliance Committee.
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ARTICLE 4
METERING
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4.1 Output Meters. Electric power, Steam, water, hot water, Chilled
Water, and Compressed Air provided by ▇▇▇▇▇▇▇▇▇-Americas to * , and any
Wastewater or Condensate provided by * to ▇▇▇▇▇▇▇▇▇-Americas, may be metered at
the Delivery Points therefor by the respective Output Meters installed, owned,
operated, maintained, calibrated, tested, and read by ▇▇▇▇▇▇▇▇▇-Americas, at its
expense, in accordance with Good Operating Practice. Subject to Sections 4.4 and
Article 20, the Output Meters shall be used to determine conclusively the amount
of electric power, Steam, Water, Hot Water, Chilled Water, and Compressed Air
Service provided by ▇▇▇▇▇▇▇▇▇-Americas at the Delivery Points. * shall have the
right to receive data in electronic form in real time on a continuous basis from
the Output Meters, and ▇▇▇▇▇▇▇▇▇-Americas shall install such Output Meters
capable of providing such data to * . * shall pay for the costs of installing,
maintaining, testing, and calibration of all facilities to accept the data from
▇▇▇▇▇▇▇▇▇-Americas' Output Meters.
4.2 Input Meters. Gas, electric power and Water delivered to
▇▇▇▇▇▇▇▇▇-Americas shall be metered at the applicable Delivery Points by
respective Input Meters installed, owned, operated, maintained, calibrated,
tested, and read by the Utility Provider. The Input Meters shall be used to
determine conclusively the quantity of Gas, Electric Power and Water delivered
at the Delivery Points. If allowed by such Utility Provider, * and
▇▇▇▇▇▇▇▇▇-Americas shall each have the right to receive data in electronic form
in real time on a continuous basis from the Input Meters.
4.3 Access. ▇▇▇▇▇▇▇▇▇-Americas shall provide notice to * of any
installation, repairs, inspection, testing, calibration or adjustment of the
Energy Output Meters or the Gas Meter. ▇▇▇▇▇▇▇▇▇-Americas shall provide notice
to * of any installation, repair, inspection, testing, calibration or adjustment
of the other Output Meters. All records from such Output Meters shall be the
property of ▇▇▇▇▇▇▇▇▇-Americas, but upon reasonable advance notice and during
normal business hours, ▇▇▇▇▇▇▇▇▇-Americas shall make available to * all data,
records and charts in the possession of ▇▇▇▇▇▇▇▇▇-Americas relating to the
Output Meters for inspection and verification. ▇▇▇▇▇▇▇▇▇-Americas shall also
keep and maintain, for a period of two (2) years or longer if required by Law,
accurate and detailed records relating to the Facility's hourly deliveries of
Utility Services and Gas consumption, which records shall be available for
inspection and copying by * and its designees during normal business hours upon
reasonable notice.
4.4 Testing and Adjustment. ▇▇▇▇▇▇▇▇▇-Americas shall inspect and
calibrate the Output Meters at least once every three (3) contract years. Either
Party may request an inspection and calibration of the other Party's meters. The
cost of the inspection and calibration shall be paid by the Party that owns the
meters; provided, however, that the Party requesting such inspection and
calibration shall reimburse the costs if no correction is made. If any such
calibration shows a measurement error of two percent (2%) or less, or such lower
percentage as may be established by tariff applicable to a retail customer, then
no correction shall be made. If
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any such calibration shows a measurement error of more than two percent (2%), or
such lower percentage as may be established by tariff applicable to a retail
customer, a retroactive correction shall be made for the period during which the
measurement instruments were in error, by using the period of inaccuracy if such
period can be determined, or a check meter, if installed and registering
accurately. If the period of inaccuracy cannot be determined, or a check meter
is not installed and registering accurately, the retroactive correction shall be
made for one-half (1/2) of the period elapsed since the last date the meter was
inspected and calibrated. If the last inspection and calibration occurred more
than six (6) Months before, such inspection and calibration shall be deemed to
have occurred six (6) Months before. In addition, the meter shall be adjusted
immediately at the expense of the Party owning such meter so as to measure
accurately.
ARTICLE 5
OPERATION AND MAINTENANCE
-------------------------
5.1 Operation and Maintenance Obligation. At all times beginning on the
Effective Date and throughout the Term of this Agreement, and as specified in
Schedule 5.1, ▇▇▇▇▇▇▇▇▇-Americas shall be responsible for the start-up, testing,
operation and maintenance of the A/A Assets and those certain portions of the
Manufacturing Plant related to the delivery of the Utilities and shall bear all
costs and expenses incurred in connection therewith, including the cost of
labor, parts, supplies, and insurance. * shall supply any water required for
▇▇▇▇▇▇▇▇▇-Americas to provide the Utility Services. Such operation and
maintenance and start-up and testing shall be performed by ▇▇▇▇▇▇▇▇▇-Americas in
accordance with Good Operating Practices, applicable Law, and the regulations,
standards and guidelines adopted from time to time by the Electric Utility.
▇▇▇▇▇▇▇▇▇-Americas shall have full and complete control over the A/A Assets at
all times. The general terms, conditions and scope of the operations and
maintenance obligation of ▇▇▇▇▇▇▇▇▇-Americas are as set out on the attached
Schedule 5.1.
5.2 Operating Committee. The Parties hereby establish an operating
committee consisting of an equal number of representatives of the Parties (the
"Operating Committee"). The Operating Committee shall meet regularly to
coordinate with respect to:
5.2.1 Utility Services provided by ▇▇▇▇▇▇▇▇▇-Americas;
5.2.2 Utility Requirements of the Manufacturing Plant;
5.2.3 Scheduled Maintenance and other activities;
5.2.4 Forced Outages;
5.2.5 Procedures for calibration of Output Meters and any other
metering equipment;
5.2.6 Safety procedures;
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5.2.7 Environmental Laws and related compliance issues; and
5.2.8 Review of and compliance with * record retention policies,
Good Operating Practices, and applicable Laws.
5.3 Scheduled Maintenance. Within ninety (90) days of the effective
date of this Agreement initially, and thereafter no later than one hundred
twenty (120) days prior to the end of each Fiscal Year, ▇▇▇▇▇▇▇▇▇-Americas shall
submit to the Operating Committee a proposed Scheduled Maintenance program for
the following Fiscal Year. Within sixty (60) days thereafter, the Operating
Committee shall confer and agree on the Scheduled Maintenance program for the
following Fiscal Year. ▇▇▇▇▇▇▇▇▇-Americas may perform any maintenance at any
time if ▇▇▇▇▇▇▇▇▇-Americas determines that such maintenance is required by Good
Operating Practice.
5.4 Access. During the Term, * and its representatives shall have
accompanied access to the premises and equipment occupied and utilized by
▇▇▇▇▇▇▇▇▇- Americas at all reasonable times in order (a) to verify, review and
monitor the operation of equipment for the purpose of determining
▇▇▇▇▇▇▇▇▇-Americas' compliance with this Agreement, and (b) to inspect, examine
and test equipment and facilities as authorized under this Agreement. Such
access shall be subject to compliance by * and its representatives with
▇▇▇▇▇▇▇▇▇-Americas' safety and security requirements, and * and its
representatives shall at all times conduct themselves so as not to impair the
operations of ▇▇▇▇▇▇▇▇▇-Americas.
5.5 Maintenance of Records. ▇▇▇▇▇▇▇▇▇-Americas shall keep and maintain
(and shall retain for a minimum of two (2) years) accurate and complete
operating records and logs in a manner consistent with Good Operating Practices
and as required by applicable Law and the regulations. Such records shall
include Utility Services and Outage information. ▇▇▇▇▇▇▇▇▇-Americas shall make
such records and logs available to * on a real-time basis as specified in
applicable operating procedures, and also for inspection and copying, during
normal business hours upon reasonable notice. The requirements of this Section
5.5 may be satisfied in whole or in part, at ▇▇▇▇▇▇▇▇▇-Americas' sole
discretion, by electronic data or any other conventional electronic storage
media.
5.6 Employees; Leased Employees. ▇▇▇▇▇▇▇▇▇-Americas shall, to the
fullest extent possible, recruit its required operating and maintenance staff
from among the current utility plant operators working for * at the
Manufacturing Plant. ▇▇▇▇▇▇▇▇▇-Americas may offer employment to acceptable
candidates and agrees to provide wages and benefits to candidates that are
offered a position that are at least comparable to those currently provided as
compensation by * . As of the Effective Date, such person(s) will become the
employee(s) of ▇▇▇▇▇▇▇▇▇-Americas. * shall cooperate fully with
▇▇▇▇▇▇▇▇▇-Americas in making its employees available for evaluation in
connection with any employment opportunities. ▇▇▇▇▇▇▇▇▇-Americas will be
responsible for (a) all hiring and firing decisions (including competence
evaluation and drug testing), (b) performance evaluations, and (c) compensation
(including wage and benefit) decisions.
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Certain other * employees, including certain employees covered under
a collective bargaining agreement, may be "leased" by * to ▇▇▇▇▇▇▇▇▇-Americas.
▇▇▇▇▇▇▇▇▇-Americas will solely control the activities of the leased employees
that relate to the Utility Services and will have the unilateral power to: (a)
reassign the employees to other positions within the facility they are currently
assigned to or to other facilities to which ▇▇▇▇▇▇▇▇▇-Americas is providing
services in the United States, and (b) fulfill its responsibilities under the
Utility Requirements Agreement using it's own or other leased employees.
▇▇▇▇▇▇▇▇▇-Americas will be responsible for all compensation and benefit costs
(or will be invoiced by * for all compensation and benefit costs) related to
leased employees. ▇▇▇▇▇▇▇▇▇-Americas will be responsible for supervising the
leased employees, and will have the power to determine (a) the number of leased
employees; and (b) and job grades (under applicable collective bargaining
agreements) necessary to staff it's operations under this Agreement.
▇▇▇▇▇▇▇▇▇-Americas will be responsible for (a) all hiring and firing decisions
(including competence evaluation and drug testing), (b) performance evaluations,
and (c) compensation decisions related to the leased employees.
5.7 Cooperation. * shall cooperate with ▇▇▇▇▇▇▇▇▇-Americas so as not
to delay or interfere with the Utility Services. Such cooperation shall include,
without limitation, valve line-ups, placing equipment out-of-service,
lockout-tagout procedures, returning equipment to service and any other similar
activities as required to perform the Utility Services.
ARTICLE 6
MODIFICATIONS AND SALE OF EXCESS
--------------------------------
6.1 Modifications. ▇▇▇▇▇▇▇▇▇-Americas may from time to time in its
discretion design, install and construct certain modifications, upgrades and
improvements of its own assets, or, at * ' concurrence, which shall not be
unreasonably withheld, of the Manufacturing Plant, in connection with providing
the Utility Services to the Manufacturing Plant ("Modifications"). The initial
modifications relating solely to the Manufacturing Plant (the Utility
Conservation Measures or UCM's) as identified in Schedule 6.1 have been mutually
agreed upon and authorized by the Parties. It is the intent of the Parties that
the UCM's identified in Schedule 6.1 will be installed in accordance with the
implementation schedule included in Schedule 6.1, although it is understood (1)
that this is an estimated schedule and (2) that ▇▇▇▇▇▇▇▇▇-Americas will not be
responsible for any delay in implementation caused by * or by matters beyond the
reasonable control of ▇▇▇▇▇▇▇▇▇-Americas. To the extent further Modifications
involve the Manufacturing Plant, * shall cooperate with ▇▇▇▇▇▇▇▇▇-Americas in
respect of the Modifications, including providing (i) information about the
Manufacturing Plant's processes, capabilities and equipment as
▇▇▇▇▇▇▇▇▇-Americas shall require, (ii) access, ingress and egress to the
Manufacturing Plant for the construction work, (iii) sufficient lay down and
temporary storage access for the Modifications, any equipment to be installed,
building materials and construction equipment, and any construction personnel.
Modifications do not include the installation of parts, the replacement of
components, the
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performance of repairs and the like, which are part of the normal operation and
maintenance of the equipment associated with the provision of Utility Services.
6.2 Modification Requests. * may from time to time recommend certain
Modifications to ▇▇▇▇▇▇▇▇▇-Americas in order to increase the efficiency of
delivery or energy use. These Modifications shall be made only after discussion
between the parties. However, final approval of Modifications relating solely to
the A/A Assets is within ▇▇▇▇▇▇▇▇▇-Americas' sole discretion. The Compliance
Committee assessment will address any capital requirements and the relevant
savings allocations or necessary Service Fee adjustments related to any such
Modifications.
6.3 No Interference with Operations. The construction and/or operation
of any Modifications (i) shall not materially interfere with the operation by *
of the Manufacturing Plant, shall not cause damage to the Manufacturing Plant
and shall not reduce the useful life of the Manufacturing Plant; (ii) the
construction of such Modifications shall be performed by ▇▇▇▇▇▇▇▇▇-Americas in a
good and workmanlike manner and in accordance with written plans and
specifications previously reviewed by * ; and (iii) all Modifications shall be
owned by ▇▇▇▇▇▇▇▇▇-Americas.
6.4 Sale of Excess. It is the intent of ▇▇▇▇▇▇▇▇▇-Americas to generate
Utility Services in excess of the Utility Requirements (herein referred to as
"Excess"). Whether or not such Excess is a result of the installation of any
Modification, the disposition, sale and/or use of such Excess is at the sole
discretion of ▇▇▇▇▇▇▇▇▇-Americas.
ARTICLE 7
ADMINISTRATION OF THE PROVISION OF
----------------------------------
MANAGEMENT SERVICES AND COMMODITIES
-----------------------------------
7.1 Administration of the Provision of Certain Services and
Commodities. As of the Effective Date, ▇▇▇▇▇▇▇▇▇-Americas shall be the agent of
* and exclusively manage and administer ("Management Services") all of the
contracts, books, records and accounts pursuant to which, all of the public
utilities and other providers furnish Commodities to the Manufacturing Plant. *
shall have no right to provide, or to cause any Person other than
▇▇▇▇▇▇▇▇▇-Americas to provide, any Management Services for the benefit of the
operation of the Manufacturing Plant; except where ▇▇▇▇▇▇▇▇▇-Americas has
defaulted under this Agreement or is otherwise unable to perform the Management
Services for any period greater that thirty (30) days. Further,
▇▇▇▇▇▇▇▇▇-Americas shall not be obligated to make any payments to any providers
furnishing Commodities to the Manufacturing Plant if * has not paid or is
otherwise in default of its obligation to pay, any of the Service Fees required
under the terms of this Agreement.
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7.2 Specific Duties of ▇▇▇▇▇▇▇▇▇-Americas. In connection with the
Management Services, ▇▇▇▇▇▇▇▇▇-Americas shall have the obligations and powers
and authorities described on Schedule 7.2 attached hereto.
7.3 Standard of Management Services. ▇▇▇▇▇▇▇▇▇-Americas agrees to
perform the Management Services in accordance with Good Operating Practices;
provided, however, that * understands and agrees that the provision of certain
Commodities to the Manufacturing Plant may be solely within the dominion and
control of the Utility Provider. ▇▇▇▇▇▇▇▇▇-Americas does not make any
representation or warranty to, and does not covenant to, guaranty or indemnify *
with respect to the quality, quantity, adequacy, suitability, reliability,
availability, scheduling or any other aspect regarding the Commodities delivered
to * or the disposal or discharge of wastewater or sanitary sewage generated by
* .
7.4 Audit. The provision of Services pursuant to this Section 7.4 are
expressly subject to the audit rights described in Article 16 hereof.
ARTICLE 8
UTILITY REQUIREMENT CHANGES AND CHANGES IN COSTS
------------------------------------------------
8.1 Manufacturing Plant Operations Reductions. * shall provide
reasonable notice to ▇▇▇▇▇▇▇▇▇-Americas of its intention to permanently reduce
its Utility Requirements at the Manufacturing Plant. At anytime during the Term
of this Agreement, should the Utility Requirements of * go below the Utility
Requirements Baseline, * shall be nonetheless obligated to pay to
▇▇▇▇▇▇▇▇▇-Americas, the Tier One Service Fee for so long as the Agreement
remains effective; provided, however, that the Service Fee shall be reduced in
an amount of the component of the Service Fee consisting of those fixed
operation and maintenance costs which are avoided by ▇▇▇▇▇▇▇▇▇-Americas
resulting from any such permanent reduction.
8.2 Increased Utility Requirements. ▇▇▇▇▇▇▇▇▇-Americas shall use all
commercially reasonable efforts to meet any increase in the Utility Requirements
beyond the maximum Utility Requirements set forth in Schedule 2.1. All such
Utility Requirements increases beyond the requirements set forth in Schedule 2.1
will be discussed by the Compliance Committee and any adjustments will be made
in accordance with Section 8.3.
8.3 Changes in Costs. It is the intention of the Parties that increases
in the costs of providing Utilities Services, which are prudently incurred by
▇▇▇▇▇▇▇▇▇-Americas, shall result in an equitable increase to the Service Fee to
be determined by the Compliance Committee. Conversely, increased costs prudently
incurred by * in maintaining the Manufacturing Plant equipment related to
▇▇▇▇▇▇▇▇▇-Americas provision of Utilities Services, shall result in an equitable
decrease to the Service Fee to be determined by the Compliance Committee. Such
increased costs shall include: (i) increased Utility Requirements beyond the
requirements set forth in Schedule 2.1; (ii) increases in the costs of
Commodities required to provide the Utility
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Requirements or (iii) other reasonable costs and expenses prudently incurred by
▇▇▇▇▇▇▇▇▇-Americas or * as approved by the Compliance Committee.
ARTICLE 9
SERVICE FEES
------------
9.1 Service Fees. In consideration of the receipt of its Utility
Requirements, * will pay the fees to ▇▇▇▇▇▇▇▇▇-Americas, which fees shall be
calculated on a monthly basis in the manner as set forth in Schedule 9.1 (the
"Service Fee(s)"). The Service Fees will be indexed and adjusted in a manner as
set forth in Schedule 9.1 or otherwise as agreed to by a majority of the members
of the Compliance Committee. Throughout the Term, * shall be obligated to pay to
▇▇▇▇▇▇▇▇▇-Americas, a minimum Service Fee calculated on the basis of the "Tier
One" component of the Service Fee (the "Minimum Service Fee"), which amount is
set out on Schedule 9.1.
9.2 Billing and Payment. ▇▇▇▇▇▇▇▇▇-Americas shall invoice * , in
arrears, for the Service Fees payable with respect to any given Month on or
before the tenth (10th) day of the following Month and * shall pay such invoice
on or before the twentieth (20th) day of such following Month (the "Due Date").
The invoice shall set forth:
(a) The Service Fees due and owing for the previous Month,
including all adjustment calculations;
(b) The monthly metered quantities of Utilities provided by
▇▇▇▇▇▇▇▇▇-Americas to * during the previous Month; and
(c) A credit in the amount of Utilities not consumed by * during
the relevant billing period, but for which * has already paid for as
part of the Minimum Service Fee. The applicable credit shall be
calculated as the product of the unconsumed units of the applicable
Utility multiplied by the applicable Tier Two unit rate as set out on
Schedule 9.1 and shall be applied as a credit only against the Tier
Two costs incurred by * in subsequent billing periods.
(d) Such other data and information as may be necessary to
determine the amounts payable by * hereunder.
Such statement shall be accompanied by any supporting documentation and other
information reasonably requested by * to determine the accuracy of the
statement. All such payments shall be made by check or by wire transfer of
immediately available funds to the account of ▇▇▇▇▇▇▇▇▇-Americas at such
depository as ▇▇▇▇▇▇▇▇▇-Americas shall designate by written notice to * . If the
payment due date falls on a day other than a Business Day, the payment shall be
due on the next Business Day.
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9.3 Late Payments and Disputed Invoices. If * disputes any amount in
the statement issued by ▇▇▇▇▇▇▇▇▇-Americas, the amount not in dispute shall be
timely paid by * , and any disputed amount which is ultimately determined to
have been payable shall be paid within ten (10) days following such
determination, together with interest at the Delayed Payment Rate from the date
the amount was originally payable to and including the date of payment. Any
dispute, which is not promptly resolved by mutual agreement of the Parties,
shall be resolved in accordance with the provisions of Article 20.
9.4 Interest. Amounts not paid by either Party to the other when due
under any provision of this Agreement, including the provisions of this Article
9, shall bear interest calculated at 1% per month, from the date payment was due
to and including the date of payment.
9.5 Adjustments. In the event adjustments or corrections to Monthly
statements are required as a result of inaccurate Output Meters or other errors
in computation or billing, the Parties shall promptly recompute amounts due from
or to each other hereunder during the period of inaccuracy and correct any
errors in such statements. If the corrected total amount is less than the total
amount already paid by a Party for that period, the difference shall be promptly
paid to that Party or offset by that Party against amounts due, without
interest.
9.6 Audit. Each Party and its representatives shall have the right, at
its sole expense, upon reasonable notice and during normal working hours, to
examine the records of the other Party to the extent reasonably necessary to
verify the accuracy of any statement, charge or computation made pursuant to
this Agreement. If requested, a Party shall provide to the other Party documents
in its possession or control pertaining to the Utilities delivered at the
applicable Delivery Point. If any such examination reveals any inaccuracy in any
statement, the necessary adjustments in such statement and the payments thereof
shall be promptly made and shall bear interest calculated at the Delayed Payment
Rate from the date the overpayment or underpayment was made until paid. No
adjustment of any statement or payment shall be made unless objection to the
accuracy thereof is made within two (2) years from the date of the statement.
This Section 9.6 shall survive any expiration or other termination of the
Agreement for a period of two (2) years from the date of such termination for
the purpose of such statement and payment objections.
9.7 No Set Off Against Service Fees. The Service Fees (or any other
payment to be made by * hereunder) shall not be subject to any right of set-off,
counterclaim, defense, abatement, suspension, deferment or reduction, and *
shall not have any right (except as specifically provided in Articles 11 an 12
of this Agreement)) to terminate this Agreement or to be released, relieved or
discharged from any obligation or liability hereunder to make all payments
required of * hereunder for any reason whatsoever, including, without limitation
(i) any claim as a result of any other business dealings by * or
▇▇▇▇▇▇▇▇▇-Americas; or (ii) any reorganization, arrangement, or similar
proceeding involving *
9.8 Commodity Maximum Pricing. It is agreed by * and
▇▇▇▇▇▇▇▇▇-Americas that in the event ▇▇▇▇▇▇▇▇▇-Americas implements
Commodity generation capacity at the Manufacturing Plant, the per unit
bundled rate (defined as the total cost of all customary charges
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and any surcharges, for a single period, divided by the amount of the Commodity
delivered) for such Commodity charged by ▇▇▇▇▇▇▇▇▇-Americas to * will not,
without the consent of the Compliance Committee, exceed the per unit rate for
that Commodity as calculated by the applicable bundled utility rate schedule
allowed under applicable Law at which * can otherwise obtain such Commodity from
the Utility Provider.
ARTICLE 10
SAVINGS ASSESSMENT
------------------
10.1 Capital Savings and Non-Capital Savings. From time to time *
and/or ▇▇▇▇▇▇▇▇▇-Americas may present proposals for projects to the Compliance
Committee relating to potential Capital Savings or Non-Capital Savings. (Capital
Savings projects presented by ▇▇▇▇▇▇▇▇▇-Americas relating solely to the A/A
Assets are not subject to * 's approval, but are intended only to give * an
opportunity to benefit from the Capital Savings.) To the extent such projects
are not accepted by the non-presenting party, the presenting party may (where
the project solely impacts assets under its control) opt to move forward with
the proposed project and solely retain any resulting Capital Savings or
Non-Capital Savings. To the extent that a project presented to the Compliance
Committee is accepted and implemented, the resulting Capital Savings or
Non-Capital Savings shall be allocated between the parties and reflected in the
Service Fees invoicing immediately following the completion of the relevant
project in the manner as agreed to by the Compliance Committee.
10.2 Utilities Savings. It is the intent of ▇▇▇▇▇▇▇▇▇-Americas to
reduce the Utility costs for the Manufacturing Plant from the Utilities Baseline
Costs (Schedule 10.2) throughout the Term of this Agreement. In the event the
Utilities Savings that are actually achieved exceed five percent (5%) from the
newly established Utilities Baseline Costs as agreed to by the Compliance
Committee, the amount of the Utilities Savings in excess of five percent (5%)
shall be shared by * and ▇▇▇▇▇▇▇▇▇-Americas as set out in Section 10.3. Within
thirty (30) days of the end of each Fiscal Year, the Compliance Committee shall
confirm the amount of the actual Utilities Savings for that Fiscal Year. Any
shared Utilities Savings owed to ▇▇▇▇▇▇▇▇▇-Americas shall be paid within sixty
(60) days of the end of the Fiscal Year in which such savings were realized.
10.3 Aggregate Utilities Shared Savings Target. ▇▇▇▇▇▇▇▇▇-Americas
shall use all commercially reasonable efforts to achieve the Aggregate Utilities
Shared Savings Target (the "Target"). Failure to achieve the Target shall not
give rise to an Event of Default. However, as an incentive to ▇▇▇▇▇▇▇▇▇-Americas
to achieve the Target, ▇▇▇▇▇▇▇▇▇-Americas shall be entitled to share in any
Aggregate Utilities Savings above the amounts set forth in Schedule 10.3.
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ARTICLE 11
TERM AND TERMINATION; ACCESS
----------------------------
11.1 Term. Unless earlier terminated in accordance with the terms of
this Agreement, this Agreement shall be legally binding for an initial term of
twenty-five (25) years following the Effective Date ("Term"). Unless cancelled
by advance written notice delivered by one Party to the other two (2) years
prior to the expiration of this Agreement, the Term of this Agreement will be
automatically renewed and extended for an additional five (5) years under the
terms then existing between the Parties or as otherwise modified by mutual
agreement. If this Agreement expires without renewal, or is terminated pursuant
to Section 11.2, then ▇▇▇▇▇▇▇▇▇-Americas shall sell or remove its assets ("A/A
Assets"). However, prior to the removal (and subject to Section 12.2.1) of the
A/A Assets, * shall have a right of first refusal for thirty (30) days from the
date of expiration or termination to purchase the A/A Assets at Fair Market
Value, but shall not be obligated to purchase the A/A Assets. * shall provide
written notice of its intention to purchase the A/A Assets (" * Notice"). The
parties will use all commercially reasonable efforts to execute all definitive
agreements necessary to effect and finalize the sale/purchase of the A/A Assets
within thirty (30) days of the * Notice. Should * elect not to exercise its
thirty (30) day right of first refusal to purchase the A/A Assets,
▇▇▇▇▇▇▇▇▇-Americas may immediately remove or sell the A/A Assets under any terms
it may choose to accept.
11.2 Early Termination. This Agreement may be terminated prior to
the end of the Term only in the following circumstances:
a) by either party in the event of the sale of the Manufacturing
Plant or upon a permanent discontinuation of operations pursuant
to Section 11.3;
b) by a non-defaulting party upon thirty (30) days written notice
following the expiration of any applicable cure period specified
under Section 12.1;
c) in the event of Force Majeure pursuant to Section 18.6;
d) upon transfer of ownership of the Manufacturing Plant by *
pursuant to and subject to Section 23.4.1;
e) by * in the event of a sale or transfer of ownership of
▇▇▇▇▇▇▇▇▇-Americas of any of its Affiliates.
11.3 Manufacturing Plant Shutdown; Sale; Termination Fee. If at any
time during the Term, * decides to permanently discontinue operations at the
Manufacturing Plant (other than for a sale of the Manufacturing Plant, the terms
of which sale include the assumption by the buyer of the terms and obligations
of this Agreement), or this Agreement is otherwise terminated for any reason
other than for a default by ▇▇▇▇▇▇▇▇▇-Americas as defined in Section 12.1
(hereafter, "Failed Performance"), * shall pay to ▇▇▇▇▇▇▇▇▇-Americas a
Termination Fee in the relevant amount set forth in Schedule 11.3 ("Termination
Fee"). * shall not be required to pay a Termination Fee in the event of a sale
of the Manufacturing Plant by * to
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a third party purchaser, where (i) such third party purchaser is an
investment grade credit at least equal to * ; (ii) such third party purchaser
assumes all of the * obligations under this Agreement; and (iii) the terms of
the purchase relating to such assumption of * 's obligations under this
Agreement are approved by ▇▇▇▇▇▇▇▇▇-Americas, which approval shall not be
unreasonably withheld.
11.4 Failed Performance. If at any time during the Term, this Agreement
is terminated by * as a result of Failed Performance by ▇▇▇▇▇▇▇▇▇-Americas, as
defined in Section 12.1 of this Agreement, * shall pay to ▇▇▇▇▇▇▇▇▇-Americas a
Termination Fee in an amount calculated as set forth in the attached Schedule
11.4.
11.5 Removal On Termination. Upon termination or expiration of this
Agreement, and in the event * does not exercise its right of first refusal to
purchase the A/A Assets, ▇▇▇▇▇▇▇▇▇-Americas shall remove all or any part of the
A/A Assets. ▇▇▇▇▇▇▇▇▇-Americas shall commence such removal within ninety (90)
days of the effective date of termination of this Agreement, and will complete
any such removal as soon as practicable and in no event more than one hundred
twenty (120) days following the date of the commencement of the removal work. *
will allow ▇▇▇▇▇▇▇▇▇-Americas reasonable access at no cost to the portions of
the Manufacturing Plant and the Site as required to facilitate the removal. The
reasonable costs associated with the removal shall be paid by
▇▇▇▇▇▇▇▇▇-Americas.
11.6 Adjustment to Termination Fee Term. Notwithstanding any other
provisions of this Article 11 to the contrary, * and ▇▇▇▇▇▇▇▇▇-Americas
acknowledge that at any time during the Term (or any renewal Term),
▇▇▇▇▇▇▇▇▇-Americas may desire to implement one or more Modifications that would
necessarily result in an adjustment to the Termination Fee schedule such that it
would extend beyond the then-current Term or renewal Term. In such cases, the
Compliance Committee shall assess the applicable cost impact of such
Modification and determine whether or not to extend the Term or renewal Term.
11.7 Right of Access. * does hereby grant and agrees to provide
▇▇▇▇▇▇▇▇▇-Americas and its employees a right of access to the Manufacturing
Plant, including (1) those portions on which the A-A Assets are located, (2)
those portions on which the Utility assets which are not owed by
▇▇▇▇▇▇▇▇▇-Americas (including without limitation, piping, ductwork, utility
cables, etc) are located, (3) those areas of the Manufacturing Plant for which
access is required so as to allow ▇▇▇▇▇▇▇▇▇-Americas to exercise its rights and
perform its obligations under the terms of this Agreement, and (4) all common
areas of the Manufacturing Plant. This right of access is intended to provide
▇▇▇▇▇▇▇▇▇-Americas with rights of ingress, egress, regress and other access by
authorized individuals and vehicles (including, but not limited to, the parking
of passenger and other vehicles) to and from the Manufacturing Plant throughout
the Term of this Agreement. The Parties agree that the right of access granted
hereunder shall survive the termination of this Agreement for so long as is
reasonably necessary for ▇▇▇▇▇▇▇▇▇-Americas to remove the A/A Assets.
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ARTICLE 12
TERMINATION FOR DEFAULT
-----------------------
12.1 Event of Default. A Party shall be in default (the "Defaulting
Party") under this Agreement upon the occurrence of any one or more of the
following (an "Event of Default"):
(a) The Bankruptcy of the Defaulting Party;
(b) A failure by the Defaulting Party to make, when due, any
payment required pursuant to this Agreement, if the Defaulting Party
does not cure such failure within ten (10) days following receipt of
notice from the other Party demanding payment;
(c) A failure by the Defaulting Party to perform any other of
its material obligations under this Agreement in accordance with the
requirements of this Agreement, if the Defaulting Party does not cure
such failure within ninety (90) days following receipt of notice from
the other Party demanding such cure (or, if such failure is curable,
within such longer period of time, not to exceed a maximum cure period
of one hundred-eighty (180) days, as is reasonably necessary to
accomplish such cure without material adverse effect on the other
Party, if the cure cannot be reasonably accomplished within such ninety
(90) day period and the Defaulting Party diligently commences and
completes such cure in such longer period); Notwithstanding the
foregoing provisions of this subsection (c), if at any time during the
Term, ▇▇▇▇▇▇▇▇▇-Americas (i) has consistently failed to supply the
Utility Requirements for any three (3) day period; (ii) has had in
excess of four (4) Forced Outages during any rolling twelve (12) month
period (other than those caused by * or by an event of Force Majeure);
(iii) has failed to meet specifications on any Utility Service in a
material manner for three (3) consecutive days; or (iv) is otherwise in
default as defined in Article 12 and has failed to cure such default
within the applicable cure period, * may provide required notice to
▇▇▇▇▇▇▇▇▇-Americas and terminate this Agreement for failed performance.
(d) A breach by the Defaulting Party of any material
representation or warranty of such Party set forth in this Agreement,
if within ninety (90) days following receipt of notice from the other
Party demanding such cure, the Defaulting Party does not cure such
breach by curing the facts underlying such incorrect representation or
warranty so as to make such incorrect representation or warranty
correct (or, if such breach is curable, within such longer period of
time, not to exceed a maximum cure period of one hundred-eighty (180)
days, as is reasonably necessary to accomplish such cure without
material adverse effect on the other Party, if the cure cannot be
reasonably accomplished within such ninety (90)-day period and the
Defaulting Party diligently commences and completes such cure in such
longer period); or
(e) A failure by the Defaulting Party to comply with the terms
of any final resolution of a dispute pursuant to Article 20 below, if
the Defaulting Party does not cure such failure within thirty (30) days
following receipt of notice from the other Party demanding such cure
or, if such failure is curable and does not constitute a failure to pay
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money, within such longer period of time, not to exceed a maximum cure
period of ninety (90) days, as is reasonably necessary to accomplish
such cure without material adverse effect on the other Party, if the
cure cannot be reasonably accomplished within such thirty (30) day
period and the Defaulting Party diligently commences and completes such
cure in such longer period).
12.2 Remedies. Upon the occurrence and during the continuation of an
Event of Default, the Party not in default shall have the right to pursue any
remedy under this Agreement now or hereafter existing under applicable Law or in
equity, including an action for direct damages and specific performance and
including termination of the Agreement upon thirty (30) days written notice to
the Defaulting Party following the expiration of any applicable cure periods as
specified under Section 12.1.
12.2.1 * Remedies Upon ▇▇▇▇▇▇▇▇▇-Americas Default. In the event of
▇▇▇▇▇▇▇▇▇-Americas' default under this Agreement or any other event triggering
▇▇▇▇▇▇▇▇▇-Americas' rights to remove, sell, or otherwise dispose of the A/A
assets, ▇▇▇▇▇▇▇▇▇-Americas shall give to * one hundred twenty days' written
notice prior to removing, selling, or otherwise disposing of the A/A Assets.
During a period of one hundred twenty (120) days after giving such notice (the
"Notice Period"), in order to ensure the Manufacturing Plant's continuing
receipt of Utilities, * shall have the right (i) to immediately enter upon the
Premises and operate or cause a third party to operate the A/A Assets on a
temporary basis either by (x) identifying a third party to assume
▇▇▇▇▇▇▇▇▇-Americas obligations and deliver services to the * during the Notice
Period, or (y) requesting that ▇▇▇▇▇▇▇▇▇-Americas lease the A/A Assets to a
third party operator; or (ii) terminate this Agreement in accordance with
Article 11. In addition, during the Notice Period, * shall, to the fullest
extent possible, recruit or cause the recruitment of its (or a third party's)
required operating and maintenance staff from among the current utility plant
operators working from ▇▇▇▇▇▇▇▇▇-Americas. * may offer, or cause a third party
to offer, employment to acceptable candidates and agrees to ensure that wages
and benefits to candidates that are offered a position are at least comparable
to those currently provided as compensation by ▇▇▇▇▇▇▇▇▇-Americas. At the end of
the Notice Period, such person(s) who are offered a position will become the
employee(s) of * or of the relevant third party. ▇▇▇▇▇▇▇▇▇-Americas shall
cooperate fully with * in making its employees available for evaluation in
connection with any employment opportunities. Upon hiring the chosen
candidate(s), * or the relevant third party will be responsible for (a) all
hiring and firing decisions (including competence evaluation and drug testing),
(b) performance evaluations, and (c) compensation (including wage and benefit)
decisions thereafter.
12.3 Remedies Cumulative. Except as otherwise expressly provided
herein, all rights and remedies of the Parties set forth in this Agreement shall
be cumulative and no remedy available to a Party not in default hereunder shall
be exclusive of any other remedy.
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ARTICLE 13
CHANGES IN TECHNOLOGY AND LAWS
------------------------------
13.1 Technology Changes. The Parties acknowledge and agree that
during the Term certain technological changes may occur as a result of
technological advancement. In the event of such changes ▇▇▇▇▇▇▇▇▇-Americas
agrees to use all commercially reasonable efforts to implement such changes in
technology, especially in those instances where the implementation of such
technology will result in additional efficiencies, reduced environmental impacts
or other benefits at the Manufacturing Plant. The impact and related costs of
any such changes in technology shall be evaluated by the Compliance Committee,
which shall determine (1) the manner in which any such changes should be
addressed and (2) whether any equitable adjustment to the Service Fees should be
made.
13.2 Changes in Law. The Parties acknowledge and agree that during the
Term certain changes in Law may occur that may impact the costs of meeting the
Utility Requirements ("Utility Requirements Costs"). For purposes of this
provision "change(s) in Law" only includes those changes of which
▇▇▇▇▇▇▇▇▇-Americas and * had no knowledge of on or prior to the Effective Date.
The Parties agree to use all commercially reasonable efforts to comply with such
changes in Law in a manner that will have no material impact on the Service
Fees, operating efficiencies, environmental conditions or other operations of
the Manufacturing Plant. It is the intent of the Parties that neither shall be
the insurer of the other against all effects of Changes in Laws and that all
such matters will be submitted to the Compliance Committee to be addressed and
resolved in a commercially reasonable manner under Section 8.3.
ARTICLE 14
INSURANCE
---------
14.1 ▇▇▇▇▇▇▇▇▇-Americas Insurance
14.1.1 During the Term of this Agreement, ▇▇▇▇▇▇▇▇▇-Americas, at its
own expense, shall provide and keep in force the following insurance:
(a) Statutory Workers' Compensation Insurance covering
▇▇▇▇▇▇▇▇▇-Americas employees in full compliance with the applicable Workers'
Compensation Act.
(b) Commercial General Liability Insurance including
contractual liability and products/completed operations liability coverage with
a combined single limit of $5,000,000 per occurrence.
(c) Automobile Liability Insurance covering all owned, hired
and non-owned vehicles with a combined single limit of $5,000,000 per
occurrence.
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(d) All Risk Property and Boiler and Machinery Insurance
covering the A/A Assets and the approved Modifications on a replacement cost
basis. Such insurance shall list * as an additional insured and a loss payee (as
its interest may appear) and contain a waiver of subrogation.
14.1.2 All insurance policies shall be issued by insurers reasonably
acceptable to * . Each policy required to be provided by ▇▇▇▇▇▇▇▇▇-Americas
pursuant to this Agreement shall name * as an additional named insured, shall be
primary and non-contributing with any insurance carried by * , and shall have
attached thereto endorsements (i) that such policy shall not be canceled,
modified, reduced or surrendered without at least thirty (30) days' prior
written notice to * ; and (ii) that no act or omission of ▇▇▇▇▇▇▇▇▇-Americas
shall invalidate the interest of such Person entitled to such notice.
▇▇▇▇▇▇▇▇▇-Americas shall furnish * with certificates of such policies on or
before the Effective Date and whenever required shall satisfy * that such
policies are in full force and effect. All deductibles shall be for the account
of, and shall be payable by, ▇▇▇▇▇▇▇▇▇-Americas.
14.2 Waiver of Subrogation. ▇▇▇▇▇▇▇▇▇-Americas and * hereby mutually
waive any and all rights of recovery against one another for real or personal
property loss or damage occurring to the Manufacturing Plant and/or the A/A
Assets, or any part thereof or any personal property therein from perils insured
against under the all risk coverage and other property insurance policies
existing for the benefit of the respective Parties and will assure that the
insurance policies maintained by the Parties contain a waiver of subrogation.
14.3 Responsibility for Employees and Contractors.
14.3.1 Each of * and ▇▇▇▇▇▇▇▇▇-Americas shall be responsible for their
own employees or their leased employees while on the premises of the other and
each are providing insurance in furtherance of such responsibility. Each Party
shall be solely responsible for and shall indemnify, defend and hold harmless
other Party from and against any and all claims, suits, damages, losses,
specifically including loss of use of property, and all other liabilities
whatsoever, including related expenses and attorneys' fees, for or on account of
injuries to or death of any person, including but not limited to their own
employees or their leased employees, and/or loss of or damage to any property,
including but not limited to their own property, in any way sustained or alleged
to have been sustained, directly or indirectly, by reason of or in connection
with: the performance of work by such Party, its employees, leased employees,
agents or subcontractors or their employees, including but not limited to the
use of any equipment or material furnished by such Party, or the presence of
such Party, its employees, leased employees, agents or subcontractors or their
employees on the premises of such Party, whether such claims, suits, damages,
losses and liabilities are based upon or result in whole or in part from the
active or passive negligence of such Party, its employees or agents, or such
Party's strict liability in tort, breach of warranty, breach of contract, duty
to indemnify or any other basis or cause whatsoever whereby the other Party
might be held liable; provided that the foregoing shall not be construed to be
an agreement to indemnify a Party against liability for damages caused by or
resulting from the sole negligence of such Party, its agents or employees, under
circumstances whereby said agreement would be in violation of any applicable
anti-indemnification statute or other applicable Law, it being the intent of the
foregoing provisions to
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absolve and protect a Party from, and to indemnify a Party against, any and all
liability and loss by reason of the premises except to the limited extent
prohibited by applicable Law.
14.3.2 Unless waived by * , ▇▇▇▇▇▇▇▇▇-Americas shall cause each of its
subcontractors performing work in connection with this Agreement to obtain
insurance in accordance with the provisions of this Article 14.
ARTICLE 15
REPRESENTATIONS AND WARRANTIES
------------------------------
15.1 Representations and Warranties of * . * represents and warrants
the following:
15.1.1 * is a limited partnership and/or corporation duly organized,
validly existing and in good standing under the Laws of the state in which it is
organized, and has all requisite corporate or other organizational power and
legal authority to own and operate its properties and to carry on its business
as now conducted and as proposed to be conducted, and enter into and carry out
the terms of this Agreement.
15.1.2 The execution, delivery and performance by * of this Agreement
have been duly authorized by all necessary corporate action on the part of * ,
and none of such execution, delivery or performance shall violate any applicable
Law or Regulatory Requirements binding on * or the articles of incorporation,
by-laws, or other organizational documents of * or contravene the provisions of,
or constitute a default under any mortgage, loan agreement, deed of trust, or
other agreement or contract to which * is a party by which it or its properties
may be bound.
15.1.3 This Agreement has been duly executed and delivered by the duly
authorized representatives of * and constitutes the legal, valid and binding
obligation of * , enforceable against * in accordance with its terms, except as
the enforceability thereof may be limited by (i) applicable bankruptcy,
insolvency, moratorium or other similar Laws affecting the enforcement of
creditors' rights generally and (ii) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
15.1.4 Except as provided on Schedule 15.1.4 attached hereto, no
material consent, approval or authorization of, or declaration or filing with,
any Governmental Authority on the part of * is required as a condition to the
valid execution, delivery or performance of this Agreement by * .
15.1.5 Except as provided on Schedule 15.1.5
The Manufacturing Plant is in compliance in all material
respects with all applicable Laws and engineering standards including federal,
state and local Environmental
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Laws, and, during the last three (3) years with respect to such Manufacturing
Plant, * has no knowledge of any noncompliance with, nor has * received any
notices of violation of such Laws, engineering standard, and federal, state and
local Environmental Laws. * has secured all necessary Permits for which it is
responsible, applicable to the business, properties and operations of the
Manufacturing Plant, the violation of which (or the failure to secure) could
have a material adverse effect on the business, operations, properties or assets
of the Manufacturing Plant, or on the condition, financial or otherwise, of * .
* further represents and warrants that with respect to the Permits in Schedule
15.1.4 that (i) all such Permits are in full force and effect; (ii) the
Manufacturing Plant are in compliance in all material respects with such
Permits; (iii) * has no knowledge of any noncompliance with, nor has * received
any notices of violation of such Permits during the last three (3) years and
(iv) that the performance of ▇▇▇▇▇▇▇▇▇-Americas under this Agreement does not
and will not require a modification of any such Permit except as is contemplated
in Schedule 15.1.4 with respect to the Title V Air Permit.
15.1.6 * is current with respect to the invoices it has received for
Commodities furnished by the providers thereof.
15.2 Representations and Warranties of ▇▇▇▇▇▇▇▇▇-Americas. ▇▇▇▇▇▇▇▇▇-
Americas represents and warrants the following:
15.2.1 ▇▇▇▇▇▇▇▇▇-Americas is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite limited liability company power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted and enter into and carry out the terms of this
Agreement.
15.2.2 The execution, delivery and performance by ▇▇▇▇▇▇▇▇▇-Americas of
this Agreement have been duly authorized by all necessary limited liability
company action on the part of ▇▇▇▇▇▇▇▇▇-Americas, and none of such execution,
delivery or performance shall violate any applicable Law or Regulatory
Requirements binding on ▇▇▇▇▇▇▇▇▇-Americas or the certificate of formation or
the limited liability company agreement of ▇▇▇▇▇▇▇▇▇-Americas or contravene the
provisions of, or constitute a default under any mortgage, loan agreement, deed
of trust, or other agreement or contract to which ▇▇▇▇▇▇▇▇▇-Americas is a party
by which it or its properties may be bound.
15.2.3 This Agreement has been duly executed and delivered by the duly
authorized managers of ▇▇▇▇▇▇▇▇▇-Americas and constitutes the legal, valid and
binding obligation of ▇▇▇▇▇▇▇▇▇-Americas, enforceable against ▇▇▇▇▇▇▇▇▇-Americas
in accordance with its terms, except as the enforceability thereof may be
limited by (i) applicable bankruptcy, insolvency, moratorium or other similar
Laws affecting the enforcement of creditors' rights generally and (ii) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
15.2.4 Except as provided on Schedule 15.2.4 attached hereto, no
consent, approval or authorization of, or declaration or filing with, any
Governmental Authority on the part of
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▇▇▇▇▇▇▇▇▇-Americas is required as a condition to the valid execution, delivery
or performance of this Agreement by ▇▇▇▇▇▇▇▇▇-Americas.
15.2.5. ▇▇▇▇▇▇▇▇▇-Americas shall provide * 's Utility Requirements and
perform the Utility Services in accordance with the specifications set forth in
Schedule 2.1 and in material compliance with all applicable Laws and
Environmental Laws except as otherwise noted in Schedule 2.1.
ARTICLE 16
AUDIT RIGHTS AND FINANCIAL REPORTING
------------------------------------
16.1 Audit Rights. Each Party, at its own expense and wherever located,
shall have the right during normal business hours and upon reasonable advance
notice to inspect and audit the inventory, warehouse records, ledgers and
non-privileged books and records of the other Party relating to this Agreement
including, but not limited to, the daily log sheets, as necessary to verify (i)
prices, volumes and charges in the case of ▇▇▇▇▇▇▇▇▇-Americas' records and (ii)
production levels and facility hours in the case of * ' records.
16.2 Financial Reporting.
16.2.1 Annual Financial Statements. Upon request by * and no later than
ninety (90) days following the receipt of such request, ▇▇▇▇▇▇▇▇▇-Americas shall
furnish to * statements of income, cash flow, retained earnings for
▇▇▇▇▇▇▇▇▇-Americas' Fiscal Year, a balance sheet as of the close of such Fiscal
Year, and notes to each, all in reasonable detail, setting forth in comparative
form the corresponding figures for the preceding Fiscal Year. * may further
request that such financial statements be certified by independent public
accountants of regionally recognized standing as being in conformity with GAAP.
16.2.2 Quarterly Financial Statements. Upon request by * , but in any
event within sixty (60) days after the end of each fiscal quarter, ▇▇▇▇▇▇▇▇▇-
Americas shall furnish to * unaudited statements of income, cash flows, retained
earnings of such quarter, and for the period from the beginning of ▇▇▇▇▇▇▇▇▇-
Americas' current Fiscal Year to the end of such quarter, and an unaudited
balance sheet as of the end of such quarter, all in reasonable detail, setting
forth in comparative form the corresponding figures for the same period or as of
the same date during the preceding Fiscal Year and the current Fiscal Year to
date. All such financial statements shall be prepared in accordance with GAAP.
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ARTICLE 17
CONFIDENTIALITY
---------------
17.1 Non-Disclosure and Non-Use. Each Party hereto shall hold all
documents and information concerning the other Party or any of its Affiliates
furnished to it by the other Party in connection with this Agreement or the
transactions contemplated hereby ("Confidential Information") in strict
confidence and shall not, without the prior written consent of the other Party,
either use such Confidential Information for any purposes other than the
purposes described herein, or disclose such Confidential Information, for any
reason or at any time except for: (a) disclosures to its employees required for
performance of their duties in furtherance of the intent and purpose of this
Agreement; (b) disclosures to lenders, banks or other financial institutions
providing; or (c) disclosures to a potential purchaser of * or
▇▇▇▇▇▇▇▇▇-Americas; provided that each Person described in (a), (b) or (c) above
agrees to be bound by the provisions of this Article 17. Each Party hereto
agrees to impose substantially the same confidentiality obligations as described
above upon their employees and in general to handle Confidential Information in
the way they would handle their own proprietary information. Notwithstanding the
foregoing, this Article 17 shall not apply to such documents or information that
were (i) previously known by the Party receiving such documents or information,
(ii) in the public domain (either prior to or after the furnishing of such
documents or information hereunder) through no fault of such receiving Party, or
(iii) later acquired by such receiving Party from another source if such
receiving Party is not aware that such source is under an obligation to the
other Party to keep such documents and information confidential.
17.2 Required Disclosure. Any Party required by applicable Law or in
the course of administrative or judicial proceedings to disclose information
that is otherwise required to be maintained in confidence pursuant to this
Article 17, may make disclosure notwithstanding the provisions of this Article;
provided that the Party making the disclosure shall give prior notice to the
other Party of the requirement and the terms thereof and shall cooperate to the
maximum extent practicable to minimize the disclosure of the information. The
Party disclosing such information shall use reasonable efforts, at the other
Party's cost, to obtain proprietary or confidential treatment of such
information by the third party to whom the information is disclosed, and to the
extent such remedies are available, shall use reasonable efforts to seek
protective orders limiting the dissemination and use of the information at the
other Party's cost.
ARTICLE 18
FORCE MAJEURE
-------------
18.1 Definition. As used in this Agreement, "Force Majeure" means any
act or event that prevents the affected Party from performing its obligations
(other than the payment of money) under this Agreement or complying with any
conditions required to be complied with under this Agreement if such act or
event is beyond the reasonable control of, and does not arise out of the
negligent act or omission of, the affected Party and such Party has been unable
by the
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exercise of due diligence to overcome or mitigate the effects of such act or
event. Force Majeure includes, but is not limited to: interruption of the supply
of natural gas, water, electricity or other commodities or services, acts of
God, acts of declared or undeclared war, sabotage, landslides, revolution,
terrorism, unusually severe storm, flood, lightning, earthquake, fire,
explosion, civil disturbance, riot, action (including unreasonable delay or
failure to act) of a court or other Governmental Authority, or strikes or other
labor disputes of a regional or national character which are not limited to the
employees of any Party and its subcontractors or any other similar or dissimilar
event which is beyond the control of the affected Party. Force Majeure does not
include equipment failure, explosion or fire caused by a failure to operate in
accordance with Good Operating Practices.
18.2 Strikes. In the event of a strike, the affected Party shall
continue to operate in full compliance with the terms of this Agreement insofar
as possible using all available personnel, including the affected Party's
available management.
18.3 Burden of Proof. In the event that the Parties are unable in good
faith to agree that a Force Majeure has occurred, the Parties shall submit the
issue to dispute resolution pursuant to Article 20 hereof; provided that the
burden of proof as to whether a Force Majeure has occurred shall be upon the
Party claiming a Force Majeure.
18.4 Excused Performance. If either Party is rendered wholly or partly
unable to perform its obligations under this Agreement because of a Force
Majeure, that Party shall be excused from whatever performance is affected by
the Force Majeure to the extent so affected; provided that:
(a) the non-performing Party gives the other Party
prompt written notice (but in any event no later than seven (7) days after the
occurrence) describing the particulars of the occurrence, including an
estimation of its expected duration and probable impact on the performance of
such Party's obligation hereunder, and thereafter continues to furnish timely
regular reports with respect thereto during the continuation of the Force
Majeure;
(b) the suspension of performance is of no greater
scope and of no longer duration than is reasonably required by the Force Majeure
(it being understood by the Parties that the Party who had suspended performance
due to the Force Majeure shall have a reasonable time period to resume such
performance after the termination of such Force Majeure, provided, further, such
Party uses all reasonable efforts to resume such performance as soon as
practicable);
(c) the non-performing Party exercises all
reasonable efforts to mitigate or limit damages to the other Party;
(d) the non-performing Party uses all reasonable
efforts to continue to perform its obligations hereunder and to correct or cure
the event or condition excusing performance; and
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(e) when the non-performing Party is able to
resume performance of its obligations under this Agreement, that Party shall
give the other Party prompt written notice to that effect and shall promptly
resume performance hereunder.
18.5 Service Fees. Notwithstanding the existence of a Force Majeure, *
shall continue to pay to ▇▇▇▇▇▇▇▇▇-Americas the percentage of the monthly Tier
One Service Fees Schedule 18.5, until the delivery of Utilities are restored or
until this Agreement is terminated pursuant to Section 18.6; provided, however,
that * shall receive a credit for any amounts paid by * during a period of Force
Majeure, which credit shall be applied against (a) the Tier Two Service Fees
following the end of the Force Majeure, or (b) the Termination Fee.
18.6 Termination for Force Majeure. If a Force Majeure prevents a Party
from performing its obligations hereunder for more than ninety (90) consecutive
days, then either Party may terminate this Agreement upon thirty (30) days'
prior written notice to the other Party. In the event of a termination for Force
Majeure, the calculation of any applicable termination fee shall be calculated
relating back to the first day of the Force Majeure interruption.
ARTICLE 19
INDEMNITY
---------
19.1 Reciprocal General Indemnification. Each Party, respectively, as
indemnitor ("Indemnitor"), will indemnify, defend and hold harmless the other
Party and its officers, directors, employees, Affiliates, agents and assigns, as
Indemnitee ("Indemnitee"), from and against any and all direct losses,
liabilities, damages, demands, claims, actions, judgments or causes of action,
assessments, costs and expenses, including, without limitation, interest,
penalties and reasonable attorneys' and accountants' fees, but excluding any
amounts described in Section 21.1 hereof, (herein referred to collectively as
"Losses") asserted against, resulting to, imposed upon or incurred or suffered
by any such Indemnitee as a result of, based upon or arising from the failure by
the Indemnitor or its respective agents or employees to comply with any
applicable Law, rule, or regulation of any authority having proper jurisdiction,
or the material default by Indemnitor under the terms of this Agreement,
excepting only such Losses as may be caused by the negligence or misconduct of
any Indemnitee or its respective agents or employees. Notwithstanding the
foregoing, it is the Parties' intent that each Party (the "Employing Party")
shall be responsible for the actions of its respective employees, agents and
contractors, and that the indemnification requirements as set forth in this
Section 19.1 shall exclude any personal injury (specifically including any
injuries associated with an environmental condition at the Manufacturing Plant)
and/or property damages suffered by the employees of an Employing Party or its
contractors, except to the extent caused by the sole negligence of the other
Party, in which case the other Party shall be obligated to provide
indemnification as provided herein.
19.2 Reciprocal Environmental Indemnification. * and
▇▇▇▇▇▇▇▇▇-Americas, respectively, as Indemnitor, will indemnify the other as
Indemnitee, and hold it, its officers,
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directors, employees, affiliates, agents and assigns as Indemnitees, harmless
from and against any and all investigation and remediation costs, losses,
damages, fines, penalties, or expenses (excluding amounts described in Section
21.1 hereof), and liability suffered or paid as a result of any and all claims,
demands, suits, causes of action, proceedings, judgments and liabilities,
including, without limitation, reasonable attorney's fees, incurred or sustained
by or against any such Party with respect to or resulting from Release of any
Hazardous Materials, if the Release is caused by Indemnitor, its agents,
employees, representatives, contractors or other person under the supervision of
the Indemnitor during the Term of this Agreement, or from any non-compliance
with Regulatory Requirements for which the Indemnitor was responsible under this
Agreement. Notwithstanding any other provision of this Agreement to the
contrary, * shall further indemnify ▇▇▇▇▇▇▇▇▇-Americas and hold it, its
officers, directors, employees, affiliates, agents and assigns harmless, from
and against any and all investigations and remediation costs, and all losses,
damages or expenses and liability suffered or paid as a result of any and all
claims, demands, suits, causes of action, proceedings, judgments and
liabilities, including, without limitation, reasonable attorneys' fees, incurred
or sustained by or against ▇▇▇▇▇▇▇▇▇-Americas, its officers, directors,
employees, affiliates, agents and assigns, with respect to or resulting from any
Release of any Hazardous Materials to, at, from, over, on, under, or above, or
any other environmental condition affecting or with respect to, the Real
Property, the Manufacturing Plant and the A/A Assets, occurring or existing
prior to the Effective Date, unless otherwise specifically agreed to by the
Parties. The indemnification set forth in this Section 19.2 shall be the
exclusive remedy. The indemnification provisions of Section 19.1 shall have no
application to such matters. Expressly excluded from the indemnification in this
Section 19.2 are (i) any amounts described in Section 21.1; (ii) any personal
injury (specifically including any injuries associated with an environmental
condition at the Manufacturing Plant) and property damage suffered by the
employees of either Party or their contractors.
19.3 Survival. This Article 19 shall survive the expiration or earlier
termination of this Agreement for two (2) years.
ARTICLE 20
DISPUTE RESOLUTION
------------------
The Parties agree to the following procedures to resolve any dispute,
controversy or claim arising out of or relating to this Agreement:
20.1 By the Parties. Should any dispute, controversy or claim arising
out of or relating to this Agreement prove incapable of being settled between
the representatives of * and ▇▇▇▇▇▇▇▇▇-Americas (including any appropriate
committee established hereunder) who are normally responsible for administration
of this Agreement, the Parties shall seek to resolve the dispute by negotiations
between senior executives of * and ▇▇▇▇▇▇▇▇▇-Americas who have authority to
settle the controversy. The disputing Party shall give the other Party written
notice of the dispute. The executives shall meet at a mutually acceptable time
and place within thirty (30) calendar days of the date of the disputing Party's
notice and thereafter as often as they reasonably deem necessary to exchange
relevant information and to attempt in good faith to resolve the dispute.
Alternatively, the designated senior executives may by mutual agreement
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elect to submit the disputed matter for non-binding mediation under agreed upon
terms and conditions.
20.2 Failure to Resolve; Arbitration. If any dispute is not resolved
between the Parties pursuant to Section 20.1 within thirty (30) days from the
date on which the Parties began to attempt to resolve such dispute, then the
dispute shall be determined by arbitration pursuant to the rules, then in
effect, of the American Arbitration Association upon the initiation of either
Party, and shall be settled and finally determined by an arbitrator mutually
acceptable to both Parties. If the Parties are unable to agree upon a single
arbitrator, each Party, at its own cost and upon notice to the other Party,
shall appoint one arbitrator. If a Party does not appoint an arbitrator within
ten (10) Business Days after the other Party has given notice of the name of its
appointed arbitrator, the single arbitrator first appointed shall be the sole
arbitrator, and that arbitrator's decision shall be binding upon both Parties.
If two arbitrators are appointed, they shall appoint a third arbitrator, and the
three shall resolve the question. The appointment of the third arbitrator shall
be made within ten (10) Business Days following the appointment of the first two
arbitrators. If the two arbitrators first appointed cannot agree upon a third,
that third arbitrator shall be chosen by the Chief Judge of the United States
District Court located in Wilmington, Delaware, or such other judge as the
parties may agree. The written decision of any two of the arbitrators so
appointed shall be binding and conclusive on the Parties hereto and enforceable
in any court of competent jurisdiction. Each of the Parties shall bear one-half
of the cost of appointing the third arbitrator, and of paying the third
arbitrator's fee. Such arbitration shall be conducted in Wilmington, Delaware,
or such other location as the parties may agree.
20.3 No Suspension of Performance. During the period of any dispute
described in this Article 20, neither Party shall suspend performance.
▇▇▇▇▇▇▇▇▇-Americas shall proceed, without interruption, with the performance of
its obligations hereunder and * shall proceed, without interruption, with the
performance of its obligations hereunder including, but not limited to, the
payment of the Service Fee.
ARTICLE 21
LIMITATION OF LIABILITY AND DISCLAIMERS
---------------------------------------
21.1 Limitation of Liability. Notwithstanding anything to the contrary
herein contained,
(a) neither * nor ▇▇▇▇▇▇▇▇▇-Americas shall be
liable, whether in contract, in tort, or otherwise, for any special, punitive,
exemplary, indirect, incidental or consequential damages whatsoever, including
but not limited to, loss of profits, business interruptions and claims of
customers or other third parties, for any reason whatsoever, provided that
nothing herein shall be deemed to limit or otherwise affect the obligations to
pay the Termination Fee provided for herein; provided, however, that any fines
or penalties imposed by any governmental or regulatory agency shall not be
excluded by this Section 21.1; and
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(b) except for the Termination Fee, in no event
shall either Party's liability for any Losses exceed the sum of $1,000,000,
regardless of the form of action or legal theory under which the claim of
liability may be asserted.
21.2 Disclaimers. Except as otherwise expressly provided herein,
▇▇▇▇▇▇▇▇▇-Americas does not hereby undertake to provide any warranties or
guarantees regarding reduced energy losses, energy savings, or system benefits
at the Manufacturing Plant in connection with the services to be performed by
▇▇▇▇▇▇▇▇▇-Americas hereunder.
ARTICLE 22
ADDITIONAL CONTRACTUAL CONTINGENCIES
------------------------------------
22.1 Conditions Precedent. ▇▇▇▇▇▇▇▇▇-Americas' obligations under this
Agreement are expressly subject to the fulfillment of each of the conditions
listed below, in each case in form and substance satisfactory to
▇▇▇▇▇▇▇▇▇-Americas, provided that ▇▇▇▇▇▇▇▇▇-Americas may waive any such
condition or may extend the date for fulfillment of any such condition. In the
event that any of such conditions shall not have been fulfilled by the date
indicated (as such date may be extended), ▇▇▇▇▇▇▇▇▇-Americas may terminate this
Agreement without further obligation:
(a) No later than twelve (12) months after the Effective Date, * shall
have transferred to ▇▇▇▇▇▇▇▇▇-Americas, or ▇▇▇▇▇▇▇▇▇-Americas shall have
received all necessary authorizations from the applicable Governmental
Authorities for the performance of the Utility Services (excluding any
authorization which, by its nature, is not available or required prior to the
commencement of the provision of the Utility Services) and, with respect to each
such authorization, either (A) all appeals or other challenges of such
authorization have been resolved to ▇▇▇▇▇▇▇▇▇-Americas' satisfaction, or (B) the
time for filing appeals or other challenges to such authorization has expired
with no appeal or other challenge having been filed. No later than sixty (60)
days after the Effective Date, ▇▇▇▇▇▇▇▇▇-Americas shall provide * with a list of
all such authorizations of which it has knowledge as of that time.
(c) ▇▇▇▇▇▇▇▇▇-Americas shall notify * of the satisfaction, extension,
or waiver of each of the conditions precedent listed in Article 22.1.
▇▇▇▇▇▇▇▇▇-Americas' obligations hereunder shall commence upon the satisfaction
or waiver of the last such condition precedent.
22.2 Transfer of Assets. Notwithstanding any other provision of this
Agreement to the contrary, it is the intent of the Parties that upon termination
and payment of any required termination fee, * shall have the right of first
refusal to purchase the A/A Assets free and clear of all liens and encumbrances
for an amount equal to Fair Market Value, less any and all costs/expenses which
would be incurred by * , including those related to (1) the removal of
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the assets or any part thereof, (2) the restoration or remediation of the assets
or the premises, (3) all required permitting related to construction, removal,
remediation, restoration, etc. of the assets and premises, and (4) any
disruptions in the operations of the Manufacturing Plant related to the
termination, provided, however, that in no event will the amount to be paid by *
be reduced to the point that ▇▇▇▇▇▇▇▇▇-Americas would be obligated to make any
payment to * upon transfer of the assets.
ARTICLE 23
MISCELLANEOUS PROVISIONS
------------------------
23.1 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
when delivered personally, by registered or certified mail, by legible facsimile
transmission or by overnight courier (fare prepaid) addressed as follows:
If to * :
* Company, L.P.
*
*
*
Attention: Vice President of Operations
with a copy to:
* Company, L.P.
*
*
Attention: Vice President - Legal Affairs
and to:
* Company. L.P.
*
*
Attention: Manager - Energy Services
If to ▇▇▇▇▇▇▇▇▇-Americas:
▇▇▇▇▇▇▇▇▇-Americas
C/o Americas Power Partners, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
With copies to:
▇▇▇▇▇▇▇▇▇ Service, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
or to such other address or facsimile number as any such Party may indicate by a
notice delivered to the other Parties hereto. Notice shall be deemed received
the same day (when delivered personally), five (5) days after mailing (when sent
by registered or certified mail), the same business day (when sent by facsimile)
and the next business day (when delivered by overnight courier). A Party to this
Agreement may change its address to which all communications and notices may be
sent hereunder by addressing notices of such change in the manner provided,
provided however, that provisions herein regarding notice to any Person other
than a Party may not be modified or deleted without the written consent of such
Person.
23.2 No Waiver. Any modification or waiver of terms of this Agreement
shall not be binding unless it is in writing and signed by a duly authorized
representative of all of the Parties hereto. The failure or delay of either
Party to require performance by the other Party of any provision of this
Agreement shall not affect its right to require performance of such provision
unless and until such performance has been waived by such Party in writing in
accordance with the terms hereof. No waiver by either Party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by Law or otherwise afforded, shall be cumulative and not alternative.
23.3 Entire Agreement. This Agreement, together with the exhibits,
schedules and appendices hereto, constitutes the entire agreement between the
Parties hereto with respect to the subject matter hereof and supercedes all
prior or contemporaneous agreements whether written or oral.
23.4 Binding Effect and Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the Parties hereto and their respective
successors and assigns; provided that:
23.4.1 If * intends to transfer ownership of the Manufacturing Plant to
a Person, other than a * Affiliate, who (i) does not have the financial
capability satisfactory to ▇▇▇▇▇▇▇▇▇-Americas to perform * 's obligations under
this Agreement or (ii) does not assume all of * 's obligations under this
Agreement, ▇▇▇▇▇▇▇▇▇-Americas shall have the right to terminate this Agreement
upon one hundred twenty (120) days prior written notice to * .
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23.4.2 ▇▇▇▇▇▇▇▇▇-Americas shall not assign or delegate its duties
hereunder without the prior written consent of * , which consent shall not be
unreasonably withheld or unduly delayed; provided further, however, that
▇▇▇▇▇▇▇▇▇-Americas, in its sole discretion is specifically permitted to assign
its rights and/or interests under this Agreement to any third party without the
consent of * , including, but not limited to, any rights of ▇▇▇▇▇▇▇▇▇-Americas
to receive payments hereunder, its remedies on default, its rights to receive
notice hereunder, and its rights to approve any modification or amendment of
this Agreement. ▇▇▇▇▇▇▇▇▇-Americas shall provide written notice to * of any such
assignment. * shall not assign this Agreement to any third party (other than a *
Affiliate) without ▇▇▇▇▇▇▇▇▇-Americas prior' written consent, which consent
shall not be unreasonably withheld.
23.5 Independent Contractor; No Partnership. ▇▇▇▇▇▇▇▇▇-Americas shall
be an independent contractor of * with respect to the performance of its
obligations hereunder. Nothing in this Agreement or the arrangement for which it
is written shall constitute or create a joint venture, partnership, agency or
any other similar arrangement between * and ▇▇▇▇▇▇▇▇▇-Americas, and neither
Party is authorized to act as agent for the other Party.
23.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the Laws of the State in which the Manufacturing Plant is
located.
23.7 Estoppel Certificate. Each Party shall, from time to time, upon
twenty (20) days prior written request by the other Party, execute, acknowledge
and deliver to the other Party, or any other person, firm or corporation
specified by such Party, a certificate signed by its authorized representative
stating that (i) this Agreement is unmodified and in full force and effect, or
if there have been modifications, that this Agreement is in full force and
effect as modified, and setting forth such modifications, (ii) the dates to
which any payments which are due hereunder have been made, (iii) stating that to
the knowledge of the signer of such certificate no default exists hereunder or
specifying each default of which the signer has knowledge, and (iv) stating that
to the knowledge of the signer of such certificate that other Party has observed
and performed all of the terms, covenants and conditions on its part to be
performed, and if not, specifying the same.
23.8 Further Assurances. Each of the Parties hereto agrees, upon the
request of the other Party hereto, from time to time to execute and deliver to
such other Party all such instruments and documents of further assurance or
otherwise as shall be reasonable under the circumstances, and to do any and all
such acts and things as may reasonably be required to carry out the obligations
of such requested Party hereunder and to consummate the transactions provided
for herein.
23.9 Press Release and Announcements. No press releases or public
announcements related to this Agreement and the transactions contemplated
herein, or any other such announcements or disclosures to the employees,
customers or suppliers of ▇▇▇▇▇▇▇▇▇-Americas, shall be made without the joint
written approval of * and ▇▇▇▇▇▇▇▇▇-Americas, unless otherwise required by law
(in which case the other party shall be consulted prior to any such disclosure).
▇▇▇▇▇▇▇▇▇-Americas and * shall cooperate to prepare announcements to employees,
customers, suppliers and other interested parties.
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(The remainder of this page is intentionally left blank-signatures follow)
UTILITIES REQUIREMENTS AGREEMENT
by and between
* COMPANY, L.P.
and
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C.
*
SIGNATURE PAGE
--------------
IN WITNESS WHEREOF, * and ▇▇▇▇▇▇▇▇▇-Americas have caused this Agreement
to be executed by their duly authorized representatives as of the day and year
first above written.
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: By:
---------------------------------- ----------------*-------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title:
--------*-------------------
-------------------------------------
* Confidential treatment requested.
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Schedule 1.1 Parties, Manufacturing Plant
----------------------------
1) Parties:
* Affiliate/Division: * North America.
▇▇▇▇▇▇▇▇▇-Americas entity: ▇▇▇▇▇▇▇▇▇-Americas-I, L.L.C., a Delaware
limited liability company.
2) Manufacturing Plant: The * * Company, L.P./ * U.S.A.
manufacturing facility located at * .
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Schedule 2.1 Provision of Utilities and Specifications
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I. STEAM
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A. Utilities Requirements and Specifications--Steam
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The quality of steam produced is directly related to the boiler water chemistry.
Steam delivered to the Manufacturing Facility will have quality assured by
maintaining the following boiler water chemistry, as per ASME "Consensus on
Operating Practices for the Control of Feedwater and Boiler Water Chemistry in
Modern Industrial Boilers" for fire tube boilers for * psig boiler's operating
pressure:
Control *
Silica *
Total Alkalinity *
Specific Conductance *
Steam shall be delivered to the Manufacturing Plant at up to * in accordance
with the following quantity standards (based upon current requirements without
reduction for substantial UCM's to be implemented).
Average steam load *
Peak steam load *
Monthly steam load *
Yearly steam load *
B. Delivery Point--Steam
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The delivery point is the point at which the steam leaves the boiler house via
the main steam header.
C. Measurement of Quantity and Quality--Steam
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The quantity of steam being supplied to the Manufacturing Facility is not
measured. Steam generation will be defined by calculation based on fuel usage,
boiler efficiency and feed water temperature. This will provide steam flow basis
for accounting purposes. Powerhouse operators will measure condensate, feed
water, and boiler water quality. Boiler water chemistry will be tested daily.
Results will be logged and adjustments will be made to maintain required
quality.
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II. COMPRESSED AIR
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A. Utilities Requirements and Specifications--Compressed Air
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Compressed Air delivered to the Manufacturing Facility shall satisfy the
following compressed air quality standards:
Control *
Dew Point *
Compressed Air delivered to the Manufacturing Facility shall satisfy the
following compressed air quantity standards:
Average compressed air load *
Peak compressed air load *
Monthly compressed air load *
Yearly compressed air load *
B. Delivery Point--Compressed Air
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The delivery point is the point at which the air leaves receivers entering the
main air distribution system.
C. Measurement of Quantity and Quality--Compressed Air
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The quantity of compressed air being supplied to the Manufacturing Facility is
not a required measurement currently.
III. WASTEWATER TREATMENT
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A. Utilities Requirements and Specifications--Wastewater Treatment
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Wastewater treatment water received from the Manufacturing Plant at Wastewater
treatment facility is discharged to the * Wastewater treatment facility and the
* Permit requires the following Wastewater treatment quality standards to be
met:
Parameter Monthly Avg Maximum
BOD * *
COD * *
NH\\3\\-N * *
Total P * *
TSS * *
Oil & Grease * *
pH *.
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As of the Effective Date of this Agreement, the Manufacturing Plant cannot
meet the foregoing standards and ▇▇▇▇▇▇▇▇▇-Americas does not commit that it
is currently able to meet the above parameters as of the Effective Date.
▇▇▇▇▇▇▇▇▇-Americas will provide Wastewater treatment at the Manufacturing
Plant, meeting the parameters for quality and quantity currently provided
by * as of the Effective Date of this Agreement. ▇▇▇▇▇▇▇▇▇-Americas agrees
that the wastewater treatment facility will meet the above standards within
90 days of the commissioning of UCM WW017 as described in Schedule 6.1. *
will retain responsibility for any fines or enforcement action prior to the
time ▇▇▇▇▇▇▇▇▇-Americas has committed to meet the above standards.
B. Delivery Point--Wastewater Treatment
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The delivery point is the point at which the Wastewater enters the Wastewater
Treatment Plant. The Discharge Point is the point at where the Wastewater leaves
the Wastewater Treatment Plant.
C. Measurement of Quantity--Wastewater Treatment
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The quantity of Wastewater entering the Wastewater Treatment plant from the
Manufacturing Facility is measured with mass flow meters. This will give real
time Wastewater flow and 24-hour totalization that will be recorded on a daily
basis for accounting purposes. The quantity of Wastewater being discharged from
the Wastewater Treatment plant is measured with mass flow meters. This will give
real time Wastewater flow and 24-hour totalization that will be recorded on a
daily basis for accounting purposes.
UTILITIES REQUIREMENTS BASELINE:
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Steam *
Compressed Air *
Wastewater *
Hot Water *
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 5.1 Operation and Maintenance Obligation
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Responsibilities of ▇▇▇▇▇▇▇▇▇-Americas
DEFINITIONS;
1. System: refers to equipment directly involved in; the generation and
distribution of compressed air and steam, treatment of process
wastewater. Distribution piping ends at the last block valve prior to
process equipment control. Wastewater treatment system boundaries are
between the final influent manhole prior to treatment plant lift pumps
and the effluent discharge manhole, municipal sewer.
▇▇▇▇▇▇▇▇▇-Americas shall:
1. Operate and maintain the A/A Assets and the Wastewater treatment
system, in good operating condition and, except as otherwise provided in this
Agreement, in compliance with all applicable Laws, Permits and generally
accepted industry standards and so as to meet the Utility requirements;
2. Maintain those portions of the Manufacturing Plant, related to the
delivery of Utilities (steam and compressed air distribution piping, condensate
return piping) in compliance with all applicable Laws and Permits and so as to
meet the Utility Requirements;
3. Generation and distribution of Steam and Compressed Air Utilities
will be as per Schedule 2.1. Responsibilities relating to compliance with the
Upper Merion Township permit relating to wastewater treatment shall be in
accordance with Schedule 2.1.
4. Work with * regarding the coordination of operations including
shut-downs and outages and, in connection therewith, provide proper notice of
scheduled interruptions;
5. Perform tests and other monitoring tasks in accordance with the
terms hereof and any applicable Law or Regulatory Requirements;
6. Maintain all components of the Systems in a manner not to void or
adversely affect any manufacturer's warranties;
7. Report any problems or failures to * promptly;
8. Provide adequate QA/QC compliance with all pertinent health,
environmental and safety provisions at the Manufacturing Plant;
9. Supply, or cause to be supplied, all goods and materials, including
inventory of spare parts, required to maintain the Systems;
10. Promptly submit any other information reasonably available to it
concerning the Systems or the services performed by ▇▇▇▇▇▇▇▇▇-Americas hereunder
as may be reasonably
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requested by * ; provided, however, that if such information is not of the type
that ▇▇▇▇▇▇▇▇▇-Americas has customarily generated prior to the Effective Date in
accordance with its normal practices, * shall reimburse ▇▇▇▇▇▇▇▇▇-Americas for
the additional cost incurred by ▇▇▇▇▇▇▇▇▇-Americas in producing such
information;
11. Procure all equipment and parts necessary to operate and maintain
the A/A Assets and the Wastewater treatment system and subject to the applicable
terms of this URA, procure all equipment and parts necessary to maintain the
Steam distribution and Compressed Air distribution systems assets. All equipment
and parts will be procured in accordance with ▇▇▇▇▇▇▇▇▇-Americas' normal
equipment procurement practices and utilized in all material respects according
to manufacturer and supplier recommendations. To the extent practicable,
▇▇▇▇▇▇▇▇▇-Americas will secure from vendors and suppliers customary and
commercially reasonable warranties with respect to such equipment and parts.
▇▇▇▇▇▇▇▇▇-Americas may procure used and/or refurbished equipment and/or parts
when appropriate;
12. Review boiler chemistry test results and authorize appropriate
boiler chemistry procedures to maintain agreed boiler water standards. Inform *
on changes in procedure, equipment and supply terms related to the boiler; and
13. Annually, beginning on the first anniversary of this Agreement, on
a schedule to be agreed upon by ▇▇▇▇▇▇▇▇▇-Americas and * , perform an
engineering audit of the Systems.
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: By: *
-------------------------------- --------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager *
Name/Title: -----------------------------
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Schedule 6.1 Utility Conservation Measures
UCM S001-Reduce Percent of Boiler Blow-down
*
UCM S002-Increase Condensate Return
*
UCM S004-Boiler combustion optimization
*
UCM S006-Replace/Repair Failed Steam Traps
*
UCM S007-Insulation
*
UCM C008-Compressors Cooling Recovery During Winter For Building Heating
*
UCM R009-Recover Heat from Refrigeration Machines
*
UCM CA010-Improve Air Quality And Reduce System Pressure Drops
*
UCM CA011-Install New Receiver Tank
*
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UCM CA012-Industrial Vacuum Pumps to Eliminate "Venturi" Air Waste
*
UCM CA013-Install Compressed Air Condensate Drains
*
UCM CA014-Reduce Compressor's operating pressure
*
UCM CA015-Install Water Separator
*
UCM S016-Upgrade the Hot Water System for line "A" and "B"
*
UCM WW017-Upgrade pH adjustment and DAF unit
*
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KOP ESTIMATED IMPLEMENTATION SCHEDULE
*
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North
America
By: ___________________________ By: _________*___________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: ___________*_________
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Schedule 7.2 Management Services
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Scope of Work.
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▇▇▇▇▇▇▇▇▇-Americas shall:
(i) Cooperate with * in the effort to obtain an "agency
letter" naming ▇▇▇▇▇▇▇▇▇-Americas as the agent for * with respect to
each Commodity to be furnished by the provider thereof.
(ii) Collect all bills from the providers of the Commodities.
(iii) Remit payment to the appropriate provider.
(iv) Negotiate, with the concurrence of the Operations Committee,
all contracts with the providers of the Commodities.
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 9.1 Service Fees
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*
These numbers will be confirmed and reviewed on an annual basis. Variances in
utility commodities will result in revised billing rates.
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North
America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 10.2 KOP - Utility Baseline
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*
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North
America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 10.3 Utilities Shared Savings
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▇▇▇▇▇▇▇▇▇-Americas shall target "utility" savings for all * facilities
brought forth to a definitive "Utility Requirements Agreement". An aggregate
target shall be set at a * reduction in costs of the established baseline
contractual utility consumption cost basis of all facilities under contract.
▇▇▇▇▇▇▇▇▇-Americas shall have the opportunity and right to share in utility cost
savings based upon the format of the following spreadsheet.
*
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North
America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 11.3 Termination Fee Schedule
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*
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North
America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 11.4 Termination Fee - Failed Performance
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*
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: ___________________________ By: ________________*_____________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: ___________*_____________
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Schedule 15.1.4 Required Governmental Consents - *
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None.
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North
America
By: ___________________________ By: _______________*______________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: ___________*_______________
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Schedule 15.1.5 Non-Compliance Issues
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All environmental matters specifically relating to non-compliance with
or liability under the Environmental Laws disclosed by the Phase I Environmental
Assessment dated April 24, 2001.
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: By:
---------------------------------- --------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 15.2.4 Required Governmental Consents
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▇▇▇▇▇▇▇▇▇-Americas
* * Plant, *
(Required For Utility Conservation Measures)
1) Boiler O2 combustion optimization (UCM 4): Will likely need to
discuss with PA DEP before undertaking (possible permit to construct).
2) Recovery of heat from superheated ammonia vapors (UCM 9): For any
modifications that may affect the ammonia system, may need to discuss with PA
DEP or local emergency planning commission (RMP, PSM).
3) Waste water discharge permit, with * .
4) Air emissions permits with the State of * , for two boilers.
Signed and acknowledged this 4th day of September , 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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Schedule 18.5 Force Majeure Service Fees Percentage
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*
Signed and acknowledged this 4th day of September, 2001
▇▇▇▇▇▇▇▇▇-AMERICAS-I, L.L.C. * COMPANY, L.P.
Individually and on behalf of its
Affiliate/Division, * North America
By: By: *
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager Name/Title: *
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