JOINT VENTURE FRAMEWORK AGREEMENT BETWEEN UNITED STATES RENEWABLE ENERGY GROUP WIND PARTNERS I, LLC AND SHENYANG POWER GROUP COMPANY LIMITED Dated as of October 29, 2009
BETWEEN
UNITED
STATES RENEWABLE ENERGY GROUP WIND PARTNERS I, LLC
AND
SHENYANG
POWER GROUP COMPANY LIMITED
Dated
as of October 29, 2009
This is a
Joint Venture Framework Agreement (together with all Attachments and Exhibits
and amendments to it, this "Agreement")
between United States Renewable Energy Group Wind Partners I LLC, a Delaware
limited liability company ("USREG
Wind"), and Shenyang Power Group Company Limited, a Chinese company
("Shenyang"),
dated as of October 29, 2009 (the "Initial Effective
Date").
RECITALS
A. USREG
Wind and Shenyang have agreed to create a joint venture that will design,
develop, manage and operate one of the world's premier wind energy power plants
to be located in west Texas with an eventual capacity of approximately 600MW.
The joint venture will benefit from positive trends in the renewable energy
industry, including the economic efficiency and acceleration of Shenyang
developments in the wind turbine technology that make renewable energy
generation increasingly reliable and competitive.
B. USREG
Wind and Shenyang desire to form a joint venture as a Delaware limited liability
company for the development, production and distribution of renewable
energy.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and mutual promises contained in
this Agreement (the mutuality, adequacy and sufficiency of which are hereby
acknowledged), the Parties agree as follows:
Defined
Terms
The
following terms shall have the following meanings during the Term:
Agreement
has the meaning given in the opening paragraph.
Alternate
Transaction has the meaning given in Section 3.2.2.
Business Day
means any day other than Saturday, Sunday or any public or legal
holiday,
whether
federal or state, in the place in which a duty or obligation is to be
performed.
Capital
Contributions has the meaning given in Section 1.6.
Confidential
Information has the meaning given in Section 3.7.1.
Consultant
Information has the meaning given in Section 2.1.2.
Construction
Contract has the meaning given in Section 1.10.
Construction
Contractor has the meaning given in Section 1.10.
Deadline
has the meaning given in Section 3.2.1.
Definitive
Agreements has the meaning given in Section 1.1.
Financing
has the meaning given in Section 1.9.1.
Initial Effective
Date has the meaning given in the opening paragraph.
Limited Liability
Company Agreement has the meaning given in Section 1.1.1.
Management
Committee has the meaning given in Section 1.5.1.
Ownership
Percentages has the meaning given in Section 1.4.
Party
means USREG Wind or Shenyang, and Parties
means USREG Wind and Shenyang.
Project
means one or more wind energy facilities with an approximately 600 MW capacity
in total to be constructed in Texas.
Project
Company has the meaning given in Section 1.3.
Representatives
shall include the shareholders, directors, officers, employees, agents,
subcontractors and representatives of either Party who are directly concerned
with this Agreement and the potential Project and other transactions
contemplated herein.
Shenyang Capital
Contribution has the meaning given in Section 1.6.2.
Shenyang
has the meaning given in the opening paragraph.
Site has
the meaning given in Section 2.2.1.
Soft Costs
means all documented, actual and reasonable costs and expenses incurred by or on
behalf of USREG Wind for the development of the Project, which would include
costs and expenses paid to third-party consultants, engineers, technical
advisors and other professionals only for the pre-construction development of
the Project and shall not include general administrative costs or legal costs
for advice rendered to USREG Wind for its own position.
Term means
the period beginning upon the Initial Effective Date and ending upon the
Termination Date.
Termination
Date has the meaning given in Section 3.2.1.
Turbine
Supplier has the meaning given in Section 1.10.
Turbine Supply
Agreement has the meaning given in Section 1.10.
USREG Wind
has the meaning given in the opening paragraph.
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USREG Wind
Capital Contribution has the meaning given in Section
1.6.1(b).
ARTICLE
1.
PRELIMINARY
TERMS OF JOINT VENTURE
1.1 Summary of Preliminary
Terms. USREG Wind and Shenyang agree, during the Term, to
perform certain due diligence activities specified in Articles 2 and 3 of this
Agreement and use commercially reasonable efforts to negotiate or cause to be
negotiated in good faith the form and substance of the definitive agreements for
the Project. These agreements (the "Definitive
Agreements") shall include, but not be limited to:
1.1.1 the
limited liability company agreement of the Project Company (the "Limited Liability
Company Agreement"), which shall be substantially similar in form to the
document attached here to as Exhibit C, as such provisions may be further
negotiated and revised by the mutual agreement of USREG Wind and Shenyang on the
basis of the terms proposed in this Article 1;
1.1.2 the
Turbine Supply Agreement (as defined herein);
1.1.3 the
Construction Contract (as defined herein);
1.1.4 the
real estate agreements specified in Section 1.6.1; and
1.1.5 any
other related document agreed in writing by the Parties to be a "Definitive
Agreement" during the Term.
1.2 Definitive
Agreements. The Definitive Agreements shall set out the full
agreement between the Parties including the terms applicable under this
Agreement, and shall substantially embody the proposed terms and conditions set
forth in this Agreement, which are non-binding and for discussion purposes only,
and other customary and mutually agreed upon terms. The only provisions of this Agreement
that are binding upon and enforceable against the Parties are the terms of
Section 1.1 and Articles 2 and 3.
The Parties acknowledge and agree that
the Limited Liability Company Agreement sets forth only a non-binding statement
of intention with respect to the Limited Liability Agreement, does not contain
all matters upon which an agreement bust be reached with respect to the Limited
Liability Company Agreement, and does not constitute a binding contract or
agreement of the Parties with respect to the Limited Liability Agreement and
such provisions shall not be binding upon the Parties or create any legal
obligations or rights.
1.3 Project
Company. The Parties would form or cause to be formed a
Delaware limited liability company which will directly own 100% of the Project
(the "Project
Company"). The name of the Project Company shall be mutually
agreed upon by the Parties. Not all of the real property interests
comprising the Project are contiguous blocks of land.
1.4 Ownership
Percentages. The relative equity ownership percentages in the
Project Company shall be 49% held by Shenyang and 51% held by USREG Wind (the
respective "Ownership
Percentages"); provided, however, that the
ownership structure of the Project Company shall be optimized for tax and
accounting purposes for each Party. It is expected that, subject to
Sections 1.9 and 1.12, allocations of all profits and losses and cash flows
from the Project Company will be allocated to the Parties in accordance with
their respective Ownership Percentages, it being understood that upon any
dissolution or other winding up of the Project Company, each of the Parties
shall be entitled to the return of any balance in such Party's capital
account.
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1.5 Management.
1.5.1 The
Parties shall define their respective development and project management roles
in the Project, acting through a management committee which will govern their
common interests in the Project (the "Management
Committee"). The Parties shall jointly agree to the formation,
structure and operation of the Management Committee. It is expected
that USREG Wind will, through the Management Committee, make all ordinary
business decisions regarding the development and management of the Project, but
that Shenyang will maintain veto rights over major and extraordinary decisions
affecting the Project, the Project Company or the Parties' respective equity
interests.
1.6 Contributions. The
Parties will specify an initial capital contribution date on which each Party
will contribute capital, either in cash or as an in-kind contribution, equal to
an agreed-upon dollar valuation, but prior to the Deadline. The
Parties agree that their respective initial capital contributions (collectively,
the "Capital
Contributions") shall be as follows upon execution of the Definitive
Agreements:
1.6.1 In
exchange for its Ownership Percentage, USREG Wind's capital contribution shall
be to cause:
(a) the
landowners of the real estate to be used for the Project to transfer by warranty
deed or enter into long term lease or easement agreements with the Project
Company for all rights necessary for the siting, construction and operation of
the Project; and
(b) the
assignment and transfer to the Project Company of all project rights, beneficial
contracts, permits, permit applications and Consultant Information (as defined
herein) related to the Project (subclauses 1.61(a) and (b) collectively referred
to hereinafter as the "USREG Wind
Capital Contribution").
1.6.2 In
exchange for its Ownership Percentage, Shenyang shall pay US$40,000,000 (the
"Shenyang
Capital Contribution") into the Project Company.
1.7 Project Plan and
Budget. USREG Wind shall prepare a business plan and budget
for the development, construction and operation of the Project consistent with
customary wind project management practices, subject to the review and approval
of Shenyang. Payments and distributions by the Project Company from
the Shenyang Capital Contribution shall be made only in accordance with such
approved budget. The initial business plan and budget shall be
prepared by mutual agreement of the Parties prior to the execution of, and
included in, the relevant Definitive Agreement, which may be revised from time
to time by the Parties in accordance with such Definitive
Agreement. The business plan and budget shall include, but not be
limited to, the following:
1.7.1 a
preliminary estimate of the sources and uses of funds for the
Project;
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1.7.2 financial
models to evaluate project economics;
1.7.3 power
pricing projections and power marketing strategies for (i) merchant power sales
or (ii) long-term power purchase agreements with utilities;
1.7.4 equipment
and construction capital costs of the Project;
1.7.5 Soft
Costs for the development of the Project; and
1.7.6 projections
for operating costs of the Project.
USREG
Wind's initial proposed spend plan for the Project Company is attached as
Exhibit A.
1.8 Limitations on Additional
Capital Contributions. Except for the Capital Contributions,
the Parties agree that no further contribution of capital to the Project Company
shall be permitted under the Definitive Agreements without the affirmative vote
of each Party. The Project Company will also be prohibited from
incurring unfunded obligations without the affirmative vote of both
Parties.
1.9 Project
Financing.
1.9.1 The
Parties expect that all capital costs of the Project (including all costs for
turbine and other equipment supply, construction services and other capital
expenditures for the Project) would be financed with contributed equity capital
plus the proceeds of third party debt financing ("Financing"). The
Financing may be made available in two stages: first, to pay for turbine
procurements, and second, to pay for construction services. Purchase
orders under the Turbine Supply Agreement and the Construction Contract shall be
staged accordingly; provided, that the initial purchase order under the Turbine
Supply Agreement shall be for US$75,000,000 worth of
turbines. Shenyang would use its reasonable efforts to introduce
potential Chinese lending sources to USREG Wind and the Project Company for the
purposes of obtaining the Financing, the proceeds of which may be funded into
Shenyang, as borrower, which will in turn contribute such capital or lend such
funds into the Project Company for it to pay the capital costs of the
Project. The Project Company may also apply for a U.S. Department of
Energy renewable energy project loan guaranty and seek out non-Chinese Financing
sources.
1.9.2 The
Parties acknowledge and agree that the structure of the Financing would be
optimized for tax and accounting purposes for each Party.
1.10 Equipment Supply and
Construction. The Parties would determine their respective
roles with respect to the procurement of engineering services, turbine and
related equipment, and construction and installation services for the
Project. It is expected that the Project Company would enter into a
Turbine Supply Agreement (the "Turbine Supply
Agreement") with Shenyang (Ruixiang) Lucky Wind Power Equipments Company
Limited, a Chinese company ("Turbine
Supplier") and a turn-key construction, erection, testing and
commissioning services contract (the "Construction
Contract") with Liaoning GaoKe Energy Group Company Limited, a Chinese
company ("Construction
Contractor") for all of the turbine supply and construction requirements
of the Project. It is also expected that Construction Contractor may
subcontract certain services to Cielo Wind Services, Inc. or affiliate thereof,
to be determined by the Parties. The obligations of the Turbine
Supplier and the Construction Contractor under the Turbine Supply Agreement and
the Construction Contract to manufacture or deliver any equipment or services
would be subject to the Project Company first obtaining the Financing to pay for
all amounts that would be required under such contracts. If the
Financing has not been secured, then the Turbine Supply Agreement and the
Construction Contract shall terminate, and no party thereto shall have any
further obligations thereunder (including, but not limited to, any payment
obligation on the part of the Project Company).
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1.11 Permitting. The
Parties would determine their respective roles with respect to obtaining and
keeping in force each permit, license and approval required for the construction
and operation of the Project. It is expected that USREG Wind will be
primarily responsible for enabling the Project Company to obtain and maintain
all necessary local, state and federal environmental and regulatory permits, and
will transfer or cause to be transferred to the Project Company all permits and
permit applications existing at the time of the execution of the Definitive
Agreements.
1.12 Dissolution. If
the Parties have not made their respective Capital Contributions, secured the
Financing, or the Project is not otherwise ready to commence construction on or
before the thirty (30) month anniversary of the date of the execution and
delivery of the Definitive Agreements, then the Parties agree that the Project
Company shall be dissolved and (i) the USREG Wind Capital Contribution shall be
returned to USREG Wind, (ii) the unused portion of the Shenyang Capital
Contribution shall be returned to Shenyang and (iii) all other assets of the
Project Company shall be returned to the Parties in accordance with their
respective capital account balances.
ARTICLE
2.
DUE
DILIGENCE ACTIVITIES
During
the Term, the Parties shall perform and undertake to perform the activities
stated in this Article 2.
2.1 Due Diligence
Review. Promptly following the execution and mutual delivery
of this Agreement and until the Termination Date (as defined
herein):
2.1.1 USREG
Wind shall provide to Shenyang and its Representatives all reports, studies,
legal documents, and other relevant data and information regarding the Project
that it has developed to date, including but not limited to the Preliminary
Climatic Condition Report for the Proposed Wind Project at West Texas, USA and
the turbine request for pricing attached hereto as Exhibit B. USREG
Wind acknowledges that, as part of Shenyang's diligence, Shenyang needs to be
satisfied with its due diligence review of real estate, wind resources,
permitting, environmental condition of the Site and interconnection and
transmission conditions affecting the Project.
2.1.2 USREG
Wind shall provide Shenyang a copy of each consulting contract that it has
entered into or will enter into on behalf of the Project and all material
correspondence, reports, conclusions, studies, invoices and notices of claims
involving the Project, as and when the same are received (or delivered) by USREG
Wind (all of which constitute the "Consultant
Information"). USREG Wind shall direct that each relevant
contractor for the Project permits USREG Wind to freely share the Consultant
Information with Shenyang in Shenyang's capacity as a potential Project
investor, subject to the confidentiality provisions set forth in Section 3.7 of
this Agreement.
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2.1.3 During
the Term, USREG Wind shall continue to provide Shenyang with access, upon
reasonable prior notice, to all Consultant Information and all other information
as USREG Wind may reasonably request in connection with Shenyang's evaluation of
the Project and the other transactions contemplated hereby, including, without
limitation, technical and legal documents, records, reports and financial
information in connection with USREG Wind and the Project.
2.1.4 USREG
Wind shall provide Shenyang with reasonable access to designated employees,
directors, officers or other Representatives of USREG Wind having knowledge of
the Project and the other transactions contemplated hereby in order to
facilitate Shenyang's due diligence review.
2.2 Consultant
Reports. The Parties expect that, promptly following the
execution and delivery of the Definitive Agreements, and to the extent that
Shenyang determines that such information is necessary to supplement information
already available to Shenyang, USREG Wind will engage the necessary third party
consultants and advisors for the Project to further develop the data provided or
to be provided in accordance with Section 2.1 and to provide the following
assessments and reports (to the extent not provided as of the Initial Effective
Date) to Shenyang within one hundred and twenty (120) days after the execution
and delivery of the Definitive Agreements:
2.2.1 a
preliminary study of the wind resources available for the Project, prepared by
an independent and qualified wind engineer based on at least two years' wind
performance data. The wind engineer shall also propose preliminary
site locations for the wind turbine towers and related facilities for the
Project (the "Site")
based on the results of such study and consultations with the Turbine
Supplier;
2.2.2 a
survey of the relevant real property by an independent and qualified wind
project site surveyor. The survey will, among other things, (i)
determine the legal rights to the Site of landowners expected to enter into
lease agreements with the Project Company, (ii) propose a specific initial site
plan for the Project and (iii) identify any necessary easements or related
rights necessary the siting, construction and operation of the Project and as
determined by the Parties;
2.2.3 an
assessment by an independent and qualified real estate appraiser to assess the
approximate current market value of the land to be leased for the Site (prior to
the construction and operation of the Project);
2.2.4 a
preliminary environmental assessment of the Site (prior to the construction and
operation of the Project) by an independent and qualified environmental
consultant. The environmental assessment will include the current
compliance status of the Site under all applicable environmental laws and
identify the specific local, state and federal governmental permits and
approvals that (i) have already been obtained and (ii) would additionally be
required for the siting, construction and operation of the Project;
and
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2.2.5 a
preliminary interconnection and power marketing study from an independent and
qualified energy consultant. The study will (i) identify requirements
for interconnection between the Project and the local electrical utility
transmission grid, (ii) determine any necessary grid capacity upgrades for such
interconnection and (iii) recommend a commercial strategy for power sales,
either on a merchant basis or under long-term power sales
contracts.
2.3 Shenyang's
Deliverables.
2.3.1 Shenyang
shall endeavor to cause Turbine Supplier and Construction Contractor to prepare
at their own cost preliminary engineering, manufacturing and construction
technical studies and cost estimates in connection with the expected wind
turbine and construction services supply to the Project. Such
studies and analysis shall form the basis of the preliminary draft Turbine
Supply Agreement and Construction Contract and other related technical
specifications and pricing terms and Shenyang shall endeavor to cause such
studies and analysis to be delivered to USREG Wind promptly after the Initial
Effective Date.
2.3.2 Shenyang
shall endeavor to cause to be provided to USREG Wind draft Turbine Supply
Agreement and Construction Contract promptly after the Initial Effective
Date. Notwithstanding the foregoing, the Parties acknowledge that
such the delivery of the draft contracts, and the related cost estimates and
work scope proposals, will be contingent on the preliminary understandings of
the Parties as to the location and number of towers, the type of turbines to be
supplied, wind density, and other technical matters to be reflected in such
draft contracts. The Parties agree that the terms of the Turbine Supply
Agreement and Construction Contract are subject to negotiation.
2.4 Termination. If
either Party is not satisfied with the results of its due diligence review in
its sole discretion, then such Party may terminate this Agreement by notice to
the other Party at any time, subject to the survival of the confidentiality
provisions in Section 3.7 and the other provisions of Article 3.
2.5 Decision
Making. Prior to the execution and delivery of the Definitive
Agreements, all decisions regarding the development of the Project shall be
formulated, made and implemented by USREG Wind; provided, that
Shenyang is promptly informed of material development regarding the
same.
2.6 Development
Costs. During the Term, each Party will be responsible for its
own internal costs and that of its affiliates and Representatives, including
staff remuneration and general administrative expenses. Neither Party
shall contract or otherwise agree to incur any third-party services or costs on
behalf of the other Party without the express agreement of the other Party with
respect to payment of such services and costs. Both Parties shall be
free to retain its own external legal, tax, accounting, financing, and
engineering advice at it's own expense without reimbursement at any time from
the other Party.
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2.7 Meetings. Each
Party shall appoint a Technical Team Leader and a Financial Team
Leader. During the first week of November, 2009, the Technical Team
Leaders and the Financial Team Leaders shall endeavor to meet at the offices of
Shenyang in Shenyang, China for the purpose of conducting due diligence and
negotiating the structure of the Project. During the second week of
November, 2009, the Technical Team Leaders and the Financial Team Leaders shall
endeavor to meet at the offices of USREG Wind's manager, Texas Wind Management
LLC. in Austin, Texas for the purpose of conducting due diligence and
negotiating the structure of the Project and the form of the Definitive
Documents.
ARTICLE
3.
OTHER
TERMS AND CONDITIONS
3.1 Conditions
Precedent. In addition to completion by each Party of a
satisfactory due diligence review as contemplated by Section 2.1, the entering
into force of the Definitive Agreements and the Project shall be subject to (a)
the negotiation and mutual execution and delivery of the Definitive Agreements,
which shall then constitute legally binding obligations of the Parties; and (b)
the prior formal approval of such Party's governing body, which may be denied in
such body's sole discretion.
3.2 Termination Date;
Exclusivity.
3.2.1 The
"Termination
Date" of this Agreement shall be the earlier of (i) the mutual execution
and delivery of the Definitive Agreements, (ii) the unilateral decision of
either Party or mutual agreement of the Parties to terminate this Agreement,
including the irrevocable mutual termination of all negotiations related to this
Agreement, or (iii) December 22, 2009 (the "Deadline"),
if the Definitive Agreements are not executed and delivered on or prior to such
date. Such extension shall be documented in a mutually acceptable
written amendment to this Agreement. If the Parties cannot complete
negotiations or agree to extend the Termination Date by the Deadline, then this
Agreement shall terminate, subject to the survival of the confidentiality
provisions set forth in Section 3.7 and the other provisions of Article
3.
3.2.2 In
consideration of the substantial expenditure of time, effort and expense to be
undertaken by Shenyang, USREG Wind hereby undertakes and agrees that, during the
Term it will not (or authorize or permit any of their respective
Representatives) to, take, directly or indirectly, any action to initiate,
assist, solicit, receive, negotiate, encourage or accept any offer or inquiry
from any person (i) to engage in any Alternate Transaction, (ii) to reach any
agreement or understanding (whether or not such agreement or understanding is
absolute, revocable, contingent or conditional) for, or otherwise attempt to
consummate, any Alternate Transaction or (iii) to furnish or cause to be
furnished any information with respect to the Project to any person (other than
as contemplated by this Agreement) who USREG Wind, or any such affiliate or
Representative, knows or has reason to believe is in the process of considering
any Alternate Transaction. If USREG Wind or any such affiliate or
Representative receives from any person any offer, inquiry or informational
request referred to above, USREG Wind will promptly, orally and in writing,
advise Shenyang of such offer, inquiry or request and deliver a copy of such
offer, inquiry or request to Shenyang. An "Alternate
Transaction" shall mean (i) any joint venture, partnership, investment,
financing, acquisition or other transaction(s) involving the Project similar to
those contemplated in this Agreement or any of the Definitive Agreements, or
(ii) any other transaction that could have an adverse impact on Shenyang's
ability to consummate the Transaction as set forth herein.
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3.2.3 Nothing
in this Agreement shall be construed to prohibit or restrict Shenyang or its
affiliates or their respective investors from pursuing or entering into business
relationships with any entity other than USREG Wind, whether or not for a
project similar to or correlated with the Project, in any location other than
the proposed Site.
3.3 Preliminary
Obligations
Only. This Agreement is intended to be a summary evidencing
the preliminary obligations of the Parties with respect to the Transaction as
reflected in discussions between the Parties and their Representatives to date
and it is expressly understood that (a) this Agreement is not intended to, and
does not, constitute an agreement to consummate the Transaction or to enter into
Definitive Agreements, and (b) the Parties hereto will have no rights or
obligations of any kind whatsoever relating to the Transaction or compensation
by virtue of this Agreement or any other written or oral expression by their
respective Representatives unless and until Definitive Agreements have been
executed and delivered; provided that each
Party's obligations to negotiate Definitive Agreements in good faith in
accordance with Article 1.1, and the other obligations set forth in Articles 2
and 3 of this Agreement are binding during the Term. Efforts by
either Party to complete due diligence, negotiate any contract, negotiate or
obtain financing, or work on Project development activities will not be
considered as evidence of intent by either Party or its affiliates to be bound
by or to otherwise enter into any Definitive Agreement or to consummate the
Transaction or a similar transaction. Reliance by either Party on the
consummation of a potential transaction prior to the execution and delivery of
Definitive Agreements shall be at that Party's risk and shall not give rise to
liability arising in contract, tort, promissory estoppel or
otherwise. This paragraph supersedes any other conflicting statement
made by any Representative of either Party.
3.4 Expenses. Whether
or not the Transaction is consummated and Definitive Agreements are executed,
each Party will pay its own costs and expenses, including all consulting, legal,
and accounting fees, incurred in connection with (a) the preparation and
negotiation of this Agreement and any Definitive Agreements; and (b) each
Party's respective due diligence investigations.
3.5 No
Liability. Neither Party shall be liable to the other for
incidental, indirect, consequential or punitive damages resulting from or
arising out of this Agreement, including without limitation loss of profits,
business opportunity or business interruption, regardless of how such damages
were caused, whether by sole, joint or concurrent negligence of either
Party. The Parties' rights and obligations under this Section 3.5
shall survive termination of this Agreement.
3.6 Press
Releases. Promptly after mutual execution and delivery of this
Agreement, the Parties may jointly prepare a mutually agreeable press release
for distribution by either Party. All press releases shall be subject
to mutual agreement of the Parties.
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3.7 Confidentiality.
3.7.1 To
facilitate discussions, upon execution of this Agreement, each Party may provide
to the other Party information, including technical, operational, procedural and
other information, data, feasibility studies, Consultant Information, surveys,
billing rate schedules, design studies, correspondence, orders, proceedings and
other material information related to the Project, the Parties and any of their
subsidiaries or affiliates, whether in writing, electronic format or otherwise
(collectively, the "Confidential
Information"). From the date of this Agreement until the
second anniversary of such date, each Party shall, and shall cause its
Representatives to, receive and maintain in confidence, and use only as
necessary for purposes of its activities contemplated by this Agreement and not
reveal to any other person (other than its Representatives who are actually
performing its activities contemplated by this Agreement), any Confidential
Information. Each Party will ensure that each Representative to whom
such disclosure is made adheres to the terms of this Agreement as if that
representative had directly agreed to undertake the same terms. Each
Party will be responsible for any breach of the terms of this Agreement by any
of its Representatives.
3.7.2 The
obligation to maintain confidentiality shall not apply to (i) information that
becomes generally available to the public without breach of any confidentiality
obligation owed to any of the Parties or their respective Representatives, (i)
information previously known to such Party prior to its receipt from the other
Party, (iii) information which is made available to such Party by a third party
who was under no obligation of confidentiality with respect to such information
or (iv) disclosure as required by law, government agency or any recognized stock
exchange.
3.7.3 Upon
the disclosure of any Confidential Information pursuant to clause (b), the
disclosing Party shall notify the other Party of such required disclosure as
soon as possible (but in no event longer than one Business Day) following the
request for the information so that the other Party may seek to resist, narrow
the scope or waive the request or seek to obtain confidential treatment of the
information so disclosed. Each Party will inform the other Party of
the means, content and timing of such disclosure prior to such disclosure being
made.
3.8 Notices. Ordinary
course business communications in connection with the performance of this
Agreement may be given electronically, by fax, by mail or any other comparable
means, but any such communication will be deemed received only upon actual
receipt. Any other notice, communication and delivery under this
Agreement (including one of default or termination): (a) will be made in writing
signed by the Person making it; (b) will specify the Section to which it
relates; (c) will be delivered only (i) in person, (ii) by nationally recognized
next Business Day delivery service electing, and being timely delivered to such
service for, next Business Day delivery, or (iii) by fax and with a confirming
copy sent by a nationally recognized next Business Day delivery service
electing, and being timely delivered to such service for, next Business Day
delivery; (d) unless given in person, will be given to the address specified
below; (e) will be deemed given (i) if delivered in person, on the date of
personal delivery, (ii) if sent by nationally recognized next Business Day
delivery service electing, and being timely delivered to such service for, next
Business Day delivery, on the first Business Day after so sent, or (iii) if sent
by fax with a copy sent by a nationally recognized Business Day delivery service
electing, and being timely delivered to such service for, next Business Day
delivery, on the first Business Day after so sent; and (f) will be deemed
received (i) if delivered in person, on the date of personal delivery, (ii) if
sent by nationally recognized next Business Day delivery service electing, and
being timely delivered to such service for, next Business Day delivery, on the
first Business Day after so sent, and (iii) if sent by fax and with a confirming
copy sent by a nationally recognized next Business Day delivery service
electing, and being timely delivered to such service for, next Business Day
delivery, on the first Business Day after so sent. The Person giving
the notice will pay all delivery costs. The addresses and the
requirements for copies are as follows:
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If to
USREG Wind, to:
United
States Renewable Energy Group, LLC
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Attention:
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with a
copy to:
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Cielo
Wind Power, LP
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Attention:
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Phone:
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Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to
Shenyang, to:
Shenyang
Power Group Company Limited
c/o
A-Power Energy Generation Systems Ltd.
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Facsimile:
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Attention:
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with a
copy to:
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& ▇▇▇▇▇▇▇▇ LLP
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Telephone:
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Facsimile:
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Attention:
Ata Dinlenc, Esq.
12
Notice
will be given to such other representatives or at such other addresses as a
Person may furnish to the other Persons entitled to notice pursuant to the
foregoing. If notice is given pursuant to this Section of a permitted
successor or assign of a Person, then notice will thereafter be given as set
forth above also to such successor or assign of such Person.
3.9 Jurisdiction; Service of
Process. All actions or Proceedings relating to this Agreement
(whether to enforce a right or obligation or obtain a remedy or otherwise will
be brought solely in the state or federal courts located in the Midland,
Texas. Each Party hereby unconditionally and irrevocably consents to
the jurisdiction of those courts and waives its rights to bring any action or
Proceeding against the other Party except in those courts. Process in
any action or Proceeding referred to in the preceding sentence may be served on
any Party anywhere in the world. Each Party irrevocably waives any
right to a jury trial with respect to any matter arising out of or in connection
with this Agreement. If any Party seeks to enforce its rights under
this Agreement by joining another Person to a Proceeding before a jury in which
the third party is a party, the Parties will request the court to try the claims
between the Parties without submitting the matter to the jury.
3.10 Entire Agreement and
Modification. This Agreement (a) supersedes all prior or
contemporaneous agreements or understandings, oral or written, between the
Parties with respect to the subject matter hereof and (b) constitutes a complete
and exclusive statement of the terms of the agreement between the Parties with
respect to their subject matter. This Agreement may not be amended
except by a written agreement executed by the Parties.
3.11 Assignments, Third
Parties. Neither Party may assign or transfer (by contract,
merger, operation of law or otherwise) any of it rights, duties or obligations
in this Agreement without the prior written consent of the other
Party. Subject to the foregoing sentence, this Agreement shall be
binding on and inure to the benefit of each Party's permitted successors and
assigns. Nothing expressed or referred to in this Agreement will be construed to
give any person or entity other than the Parties hereto any legal or equitable
right, remedy or claim under or with respect to this Agreement or any provision
of this Agreement. This Agreement and all of its provisions and conditions are
for the sole and exclusive benefit of the Parties hereto and their respective
permitted successors and assigns.
3.12 No Third Party
Rights. Nothing expressed or referred to in this Agreement
will be construed to give any Person other than the Parties any legal or
equitable right, remedy or claim under or with respect to this Agreement or any
provision of this Agreement. This Agreement and all of its provisions
and conditions are for the sole and exclusive benefit of the Parties and their
successors and assigns.
3.13 Governing
Law. This Agreement, including issues arising out of or
related to this Agreement, will be governed by the laws of the State of Texas,
without regard to that body of law relating to conflict of laws.
3.14 Relationship of the
Parties. Nothing contained herein or in the title of this
Agreement creates or shall be deemed to create any relationship of partnership,
joint venture or agency between the Parties for any purpose, nor shall any
similar relationship be deemed to exist between them. No joint
venture entity or other legal entity is created by this
Agreement. No Party shall have the right to represent the other
Party or to enter into any commitment or agreement on behalf of the other Party
without such Party's prior specific written consent.
[signatures
are on next page]
13
DULY
EXECUTED BY the Parties on as of the date first written above.
United
States Renewable Energy Group Wind Partners I, LLC
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By:
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Texas
Wind Management LLC its
Manager |
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By:
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Name:
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Title:
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Vice
President
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Shenyang
Power Group Company Limited
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By:
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Name:
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Title:
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Chief
Executive
Officer
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