PROJECT ASSIGNMENT AGREEMENT
EXHIBIT
10.9
THIS PROJECT ASSIGNMENT AGREEMENT
(this “Agreement”) is dated as of January 20,
2009, by and between the following parties:
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North
American Natural Resources-Southeast, LLC, a Michigan limited liability
company (“Assignor”)
and
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GES-Port
Charlotte, LLC, a Georgia limited liability company, or its Affiliate
(“Assignee”).
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RECITALS
WHEREAS,
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1.
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Assignor
has entered into two contracts with Charlotte County, a political
subdivision of the State of Florida (the “County”),
consisting of the “Agreement Between Charlotte County and North American
Natural Resources – Southeast for Landfill Gas Purchase” dated July 22,
2008 and the “Site Lease Agreement” of the same date (each an “Assigned
Contract” and, collectively, the “Assigned
Contracts”);
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2
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The
Assigned Contracts provide the Assignor with the rights to purchase all
the landfill gas generated by or at the County’s ▇▇▇▇▇ Road Landfill (the
“Landfill”) and
the rights necessary to construct and operate a landfill gas-to-energy
project at the Landfill (the “Project”);
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3.
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Assignor and Global Energy Holdings Group, Inc. (a/k/a Global
Energy Holdings Corporation), a Delaware corporation and an Affiliate of
Assignee, entered into a Binding Letter of Intent dated as of November 21,
2008, as further amended by the First Amended Letter of Intent, dated as
of December 22, 2008 (collectively, the “BLOI”), whereby
the parties agreed to restructure the transaction whereby Assignee would
purchase and receive certain rights in and to the Assigned Contracts;
and
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4
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Assignee
wishes to assume, receive and take, and Assignor wishes to assign and
transfer to Assignee all of Assignor’s rights, title and interests in and
to the Assigned Contracts on the terms and conditions set forth
herein.
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NOW, THEREFORE, in
consideration of the foregoing, and the representations, warranties, covenants
and agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
1. DEFINITIONS
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1.1
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Definitions. For
the purposes of this Agreement, the following terms will have the meanings
set forth or referred to below:
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“Affiliate” – with
respect to a specific Person, any Person directly or indirectly controlling,
controlled by, or under common control with, the specified Person.
“Applicable Law” -
each provision of any constitution, statute, law, ordinance, code, rule,
regulation, decision, order, decree, judgment, release, Permit or other official
pronouncement of any Governmental Authority.
“Business Day”
- each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
federal or state of Florida holiday.
“Commencement of
Operation” - the day upon which the Project has been
generating electricity for sale to a local utility for at least 24 hours per day
for 7 consecutive previous days.
“Confidentiality
Agreement” - the confidentiality agreement, dated October 31, 2008
between Global Energy Holdings Group, Inc. and the Assignor.
“Governmental
Authority” - any legislative, executive, judicial, quasi-judicial or
other public authority, agency, department, bureau, division, unit, court or
other public body, including federal, state and local bodies.
“Lien” - means any
mortgage, deed to secure debt, security interest, claim, lien, liability,
pledge, exception, easement, or similar encumbrance.
“Material Adverse
Effect” - a change in or effect on the Assigned Contracts or the ability
of the Assignor or any successor in interest under the Assigned Contracts to
construct, own and operate the Project that could reasonably be expected to
cause an expenditure of more than $10,000 to remedy such change or
effect.
“Party” or “Parties” - each or
all, as appropriate, of the entities who have executed and delivered this
Agreement, each permitted successor or assign of a Party, and when appropriate
to effect the binding nature of this Agreement for the benefit of another party,
any other successor or assign of a Party.
“Permit” - means any
finally issued license, permit, authorization or certificate issued by a
Governmental Authority for which any appeal period has expired.
“Person” - any
individual, sole proprietorship, partnership, joint venture, corporation,
estate, trust, unincorporated organization, association, limited liability
company, institution or other entity, including any that is a Governmental
Authority.
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1.2
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Certain Rules of
Construction. For
purposes of this Agreement:
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(a)
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“including”
and any other words or phrases of inclusion shall not be construed as
terms of limitation, so that references to “included” matters shall be
regarded as non-exclusive, non-characterizing
illustrations;
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(b)
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“copy”
or “copies” means that the copy or copies of the material to which it
relates are true, correct and
complete.
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(c)
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“this
Agreement” includes any amendments or other modifications and supplements,
and all exhibits, schedules and other attachments to
it.
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(d)
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Titles
and captions of or in this Agreement and the cover sheet and table of
contents of this Agreement are inserted only as a matter of convenience
and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any of its
provisions.
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(e)
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Whenever
the context so requires, the singular includes the plural and the plural
includes the singular, and the gender of any pronoun includes the other
genders.
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(f)
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Each
exhibit and schedule referred to in this Agreement and each attachment to
any exhibit, schedule or this Agreement is hereby incorporated by
reference into this Agreement and is made a part of this Agreement as if
set out in full in the first place that reference is made to
it.
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(g)
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The
Parties acknowledge that they have participated jointly in the negotiation
and drafting of this Agreement and thus if an ambiguity or question of
intent or interpretation arises as to any aspect of this Agreement, then
it shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any provision of this
Agreement.
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ARTICLE
2. ASSIGNMENT AND ASSUMPTION OF
PROJECT CONTRACTS
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2.1
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Assignment of Project
Contracts. In consideration of the amounts payable by
Assignee to Assignor in accordance with Section 2.3
below, Assignor hereby transfers and assigns to Assignee all of Assignor’s
right, title and interest in, to and under each of the Assigned Contracts,
in each case effective as of the Closing
Date.
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2.2
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Assumption. Assignee
expressly accepts the assignment set forth above and hereby assumes, and
agrees to perform and discharge, all commitments and obligations arising
and accruing from and after the Closing Date under the Assigned Contracts,
as if the Assignee was the original contracting party thereto rather than
Assignor. It is understood and agreed that, except for the
assumption of the commitments and obligations arising under the Assigned
Contracts, neither Assignee nor any of its Affiliates shall assume or
otherwise become liable for the performance of any liabilities or
obligations of Assignor or any of Assignor’s Affiliates with respect to
the Project, whether direct or indirect, liquidated or unliquidated, known
or unknown, contingent or
otherwise.
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2.3
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Consideration.
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(a) Credit for Deposit at
Closing. Assignor acknowledges and agrees that Assignee (or
its Affiliate) has previously paid Assignor a deposit totaling ten thousand
dollars ($10,000) (the “Deposit”) in
connection with the execution and pursuant to the terms of the BLOI, which
Deposit was fully earned on the date of payment and is non-refundable to
Assignee for any reason, but which Deposit shall be credited in full against the
first installment of the Consideration (as defined below in Section 2.3(b)) on
the Closing Date.
(b)
Timing of
Payments. As consideration for the Assignor’s agreement to
transfer and assign all of Assignor’s right, title and interest in, to and under
the Assigned Contracts, Assignee agrees to pay Assignor an aggregate amount
equal to Three Hundred Fifty Thousand Dollars ($350,000) (the “Consideration”) as
follows:
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i)
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$100,000
to be paid at the Closing, minus the
Deposit;
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ii)
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$100,000
to be paid within ten (10) Business Days after Assignee’s procurement of
the air construction Permit and solid waste
Permit(s);
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iii)
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$50,000
to be paid upon Assignee’s installation of the Landfill Gas Collection
System (as that term is defined in the Assigned
Contracts);
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iv)
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$50,000
to be paid upon Assignee’s execution of the purchase power agreement with
a local electric utility and the agreement with such utility providing for
the construction of the necessary interconnect;
and
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v)
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$50,000
to be paid within 10 Business Days after the first anniversary of
Commencement of Operation of the
Project.
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(c)
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Conditional Obligation
to Pay. Should any of the events or milestones listed
above in Section
2.3(b) resulting in an obligation of Assignee to make a payment to
Assignor be unachievable or unattainable within a reasonable period of
time due to no fault of Assignee, then Assignee shall have no obligation
to make such payment to Assignor nor shall Assignee have any obligation to
pursue subsequent events or milestones or make any payments associated
with such subsequent events or
milestones.
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ARTICLE
3. CLOSING
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3.1
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Closing
Date. Subject to the provisions of Sections 3.2
and 3.3
and Article 9,
the payments and deliveries described in this Article 3
(collectively, the “Closing”) shall
be made at the offices of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, legal
counsel to Assignee, located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ on January 23, 2009 or, if later, on the second business day after
the conditions set forth in Sections 3.2
and 3.3
have been satisfied or waived. The date on which the Closing is
actually held is referred to as the “Closing
Date.” None of the actions set forth in Sections 3.4
and 3.5
shall be effective unless and until all of such actions shall have been
taken or waived; but if all such actions are taken or waived, then the
Closing shall be effective as of 12:01 a.m. on the Closing
Date.
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3.2
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Conditions to
Assignor’s Obligations. Assignor’s
obligations to effect the Closing on the Closing Date is subject to the
following conditions:
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(a)
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Representations and
Warranties True and Correct. Each of Assignee’s
representations and warranties contained in this Agreement shall be true
in all material respects as of the Closing (except to the extent that a
representation or warranty relates to an earlier date, in which case it
shall be true in all material respects as of such earlier date), after
giving effect to all curative actions by
Assignee.
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(b)
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Agreements Complied
With. There shall have been no material breach by
Assignee in the performance of its obligations under this Agreement which
has not been cured.
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3.3
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Conditions to
Assignee’s Obligations. Assignee’s obligation to make
its payments and deliveries at the Closing are subject to the following
conditions:
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(a)
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Representations and
Warranties True and Correct. Assignor’s representations
and warranties contained in this Agreement shall be true in all material
respects as of the Closing (except to the extent that a representation or
warranty relates to an earlier date, in which case it shall be true in all
material respects as of such earlier date), after giving effect to all
curative actions by Assignor.
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(b)
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Agreements Complied
With. There shall have been no material breach by
Assignor in the performance of its obligations under this Agreement which
has not been cured.
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(c)
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Estoppel and Consent
from County. Assignee shall have received an executed
copy of the form of Novation Of Contract By Substitution Of New Party For
Discharged Party attached hereto as Exhibit A (the
“County Novation
Contract”).
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3.4
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Assignor’s Closing
Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Section 3.2, at
the Closing Assignor shall deliver all of the
following:
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(a)
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Secretary’s
Certificate. Certificate of the Secretary or an
Assistant Secretary of Assignor, dated as of the Closing Date, in form and
substance satisfactory to Assignee, as to the resolutions of the sole
manager and sole member of Assignor, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual
resident of the State of Florida (hereinafter “▇▇▇▇▇▇”) and
owner of 100% of the outstanding limited liability company interests in
Assignor, authorizing the execution and performance of this Agreement and
the transactions contemplated
hereby.
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(b)
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Executed County
Novation Contract. Assignor shall have delivered to
Assignee an executed copy of the County Novation
Contract.
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3.5
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Assignee’s Closing
Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Section 3.3, at
the Closing Assignee shall deliver payment of the initial portion of the
Consideration in accordance with the terms of Section 2.3.
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ARTICLE
4. CERTAIN
REPRESENTATIONS AND WARRANTIES
Each
Party hereby represents and warrants to the other Party, on the date of this
Agreement and again on and as of the Closing Date, that:
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4.1
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Corporate
Matters. It is duly organized, validly existing and in
good standing as a limited liability company under the laws of its
jurisdiction of organization and is duly qualified to do business in all
jurisdictions where such qualification is required, except where the
failure to qualify would not have a material adverse effect on such Party
or its ability to consummate the transactions contemplated under this
Agreement.
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4.2
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Delivery of
Agreement. It has full power and authority to enter this
Agreement and any other instrument or document required to be executed and
delivered to perform its obligations hereunder and thereunder. The
execution, delivery and performance of this Agreement and such other
documents have been duly authorized by all necessary limited liability
company action by such Party and do not and will not contravene its
organizational documents or conflict with, result in a breach of, or
entitle any party (with due notice or lapse of time or both) to terminate,
accelerate or declare a default under, any agreement or instrument to
which it is a party or by which it is bound. The execution,
delivery and performance by it of this Agreement will not result in any
violation by it of any law, rule or regulation applicable to
it. It is not a party to, nor subject to or bound by, any
judgment, injunction or decree of any court or other governmental entity,
which may restrict or interfere with the performance of this Agreement by
it which would reasonably be expected to have a material adverse effect on
its ability to perform its obligations under this
Agreement. This Agreement is its valid and binding obligation,
enforceable against it in accordance with their respective terms, except
as such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors’ rights generally and by general principles
of equity (regardless of whether the enforcement thereof is sought in a
proceeding at law or in equity).
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4.3
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Consents and
Approvals. Except with respect to the County Novation
Contract, no consent, waiver, order, approval, authorization or order of,
or registration, qualification or filing with, any court or other
governmental agency or authority is required for the execution, delivery
and performance by such Party of this Agreement and the consummation by
such Party of the transactions contemplated hereby or
thereby. No agreement, consent or waiver of any party to any
contract to which such Party or any of its Affiliates is a party or by
which it is bound is required for the execution, delivery and performance
by such Party of this Agreement or the Assignment Agreements that has not
been duly obtained.
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4.4
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Brokers and
Finders. It is not obligated, nor will it become
obligated, to pay any fees or commissions to any broker, finder or other
agent in connection with this Agreement or the transactions contemplated
herein.
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As
inducement to Assignee to enter into this Agreement, Assignor hereby further
represents and warrants to Assignee, on the date of this Agreement and again on
and as of the Closing Date, that:
4.5 Ownership of
Assignor.
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(a)
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Title. ▇▇▇▇▇▇
owns good and valid title to all (100%) of the membership interests in
Assignor (the “LLC Interests”)
free and clear of any and all
Liens.
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(b)
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Ownership. The
LLC Interests held by ▇▇▇▇▇▇ represent all (100%) of the issued and
outstanding limited liability company or other ownership interests in
Assignor. The LLC Interests held by ▇▇▇▇▇▇ have been duly and
validly issued, were duly and validly acquired by ▇▇▇▇▇▇, and were not
issued in violation of any preemptive or other similar
right.
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4.6
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Leased
Property. Assignor owns all right, title and interest in
and to a valid leasehold interest in the leased site at the Landfill
pursuant to the Site Lease Agreement, dated July 22, 2008 between Assignor
and the County. Assignor has the exclusive right to develop,
operate and access the Landfill for purposes of completing the
Project.
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4.7
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Assigned
Contracts. With respect to each Assigned
Contract,
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(a)
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such
Assigned Contract constitutes a valid and binding obligation of Assignor
and the other parties thereto, enforceable in each case in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general application relating to or affecting
creditors’ rights and to general equity
principles;
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(b)
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no
event has occurred that (whether with or without notice, lapse of time or
both) (i) would constitute a default under such Assigned Contract by
Assignor or of any other party thereto, (ii) would entitle Assignor or any
other party thereto to terminate such Assigned
Contract;
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(c)
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Assignor
has not received written notice of any alleged default under such Assigned
Contract by Assignor;
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(d)
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Assignor
has provided to Assignee a true and correct copy of such Assigned
Contract, including all amendments, supplements and
modifications;
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(e)
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neither
Assignor nor any other party thereto has waived any of its rights under
such Assigned Contract, either orally or in
writing;
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(f)
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No
Person has any right of first refusal, Liens or other interest in, to or
under any Assigned Contract, nor does any Person (other than Assignor)
have any claim of ownership or title of any nature in the
Assigned Contracts;
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(g)
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The
Assigned Contracts transferred by Assignor pursuant to this Agreement
constitute all of the rights, title and interest that Assignor has in
connection (directly or indirectly) with the Project;
and
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(h)
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without
limiting the foregoing, Assignor has made all payments required to be made
by it under such Assigned Contract, no payments that are due and payable
are being withheld by any other party thereto, and no unresolved dispute
or claim is pending between Assignor and any other party thereto with
respect to the performance by Assignor or any other party of its
obligations under such Assigned Contract or the interpretation of such
Assigned Contract.
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4.8
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Absence of Material
Changes. There has not been any material adverse change
with respect to the Assigned Contracts, condition of the Project or any
other event that has had or may reasonably be expected to have a Material
Adverse Effect.
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ARTICLE
5. ACTIONS
PRIOR TO THE CLOSING DATE; OTHER AGREEMENTS
The
Parties will take the following actions between the date of this Agreement and
the Closing Date:
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5.1
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Notifications. Each
Party shall promptly notify the other of any action, suit or proceeding
that is instituted or threatened against such Party to restrain, prohibit
or otherwise challenge the legality of any transaction contemplated by
this Agreement.
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5.2
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Consents and
Approvals. During the period prior to the Closing Date,
each Party hereto shall act diligently and reasonably, and shall cooperate
with the other, to secure the consent and approval of the County, and to
take any other action reasonably necessary to carry out the intent of this
Agreement.
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5.3
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Maintenance of Project
Prior to the Closing Date. Assignor will maintain the
Assigned Contracts and the Project in full force and effect with no
violations or defaults, will not terminate any of the Assigned Contracts,
and will use commercially reasonable efforts to maintain any material
Permits in full force and effect.
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5.4
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No
Negotiations. Until the Closing or until this Agreement
is terminated, Assignor shall not (i) directly or indirectly, solicit,
initiate, or participate in (or permit or allow any solicitation,
invitation or participation in) any discussions or negotiations or enter
into (or permit or allow entry into) any contract, commitment or
transaction with any Person in relation to the conveyance, assignment,
transfer, purchase or sale of any direct or indirect interest in the
Assigned Contracts or the Project; or (ii) provide or permit or allow the
provision of any information to, or facilitate an inquiry from, any Person
either directly or indirectly investigating or seeking to enter into any
such discussion, negotiation, contract or transaction related to the
conveyance, assignment, transfer, purchase or sale of any direct or
indirect interest in the Assigned Contracts or the
Project.
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5.5
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Expenses. Except
as is specifically provided herein, each Party hereto will pay all costs
and expenses related to its negotiation and preparation of this Agreement
and to its performance and compliance with all agreements and conditions
contained in this Agreement.
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5.6
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Confidentiality. Assignor,
Assignee and ▇▇▇▇▇▇ agree that the terms of this Agreement shall remain
strictly confidential, except with the prior written consent of Assignor
and Assignee and except to the extent that enforcement of its terms or
Applicable Law requires public disclosure. Notwithstanding the
foregoing, except as may be required by Applicable Law, the Parties shall
seek appropriate protective orders or confidential treatment for this
Agreement in connection with any required filing with or disclosure to any
Governmental Authority.
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5.7
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County Novation
Contract. Notwithstanding that certain Assignment and
Assumption Instrument executed by Assignor and Assignee in connection with
the County’s execution and delivery of the County Novation Contract (and
attached as an exhibit thereto), the Parties hereby expressly acknowledge
and agree that, as between Assignor, Assignee and ▇▇▇▇▇▇, this Agreement
shall govern the transactions contemplated
herein.
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ARTICLE
6. INDEMNIFICATION
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6.1
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Definition of
Loss. For the purposes of this Agreement “Loss” means
any liability, loss, cost, damage (excluding punitive, indirect or
consequential damages), out-of-pocket expense or payment, including
related reasonable attorneys’, accountants’ and other professional
advisors’ fees and out-of-pocket
expenses.
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6.2
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Specific
Indemnification Obligations—by Assignor. If the Closing
occurs then, subject to the other provisions of this Article 6,
Assignor and ▇▇▇▇▇▇, jointly and severally, shall indemnify, defend and
hold Assignee and its permitted successors and assigns, harmless as to any
Loss incurred by them resulting
from:
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(a)
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Fees and
Expenses. Any obligation for the payment of fees and
expenses imposed on Assignor pursuant to this Agreement;
and
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(b)
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Breaches. Any
breach of, or inaccuracy associated with, any representation, warranty,
covenant, statement or agreement made by Assignor in this
Agreement.
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6.3
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Certain
Limitations. Notwithstanding the
foregoing:
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(a)
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Time
Limitations. The indemnification provided for in this
Article 6
shall terminate five (5) calendar years after the Commencement of
Operation (and no claims shall be made by Assignee under this Article 6
thereafter), except that Assignor’s and ▇▇▇▇▇▇’▇ indemnification
obligations will continue as to claims for indemnification which are duly
notified in accordance with the provisions of Section 6.5(a)
on or before the applicable termination date, as to which claims the
obligation of the Indemnitor (as defined below in Section 6.4(a)) shall
continue until any liability under this Article 6
has been determined and, if applicable, paid in accordance with the
terms of this Article 6.
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(b)
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Cap. The
aggregate liability of Assignor or ▇▇▇▇▇▇ (jointly and severally) under
this Article 6
shall not exceed the Consideration.
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(c)
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Action by Indemnified
Party. Notwithstanding any other provision of this Article 6,
Assignor and ▇▇▇▇▇▇ shall not have any liability under this Article 6
to indemnify Assignee with respect to a Loss to the extent that the Loss
arose from or was exacerbated by any action taken directly or indirectly
by Assignee on or after the Closing
Date.
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6.4
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Notice of
Claims
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(a)
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Any
Party seeking indemnification under this Article 6
(the “Indemnified
Party”) shall give to the Party obligated to provide
indemnification to such Indemnified Party (the “Indemnitor”) a
written notice (a “Claim Notice”)
describing in reasonable detail the facts giving rise to any claim for
indemnification hereunder and shall include in such Claim Notice (if then
known) the amount or the method of computation of the amount of such
claim, and a reference to the provision of this Agreement or any other
agreement, document or instrument executed hereunder or in connection
herewith upon which such claim is based; provided, however, that a
Claim Notice in respect of any action at law or suit in equity by or
against a third Person as to which indemnification will be sought shall be
given promptly after the action or suit is
commenced.
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(b)
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After
the giving of any Claim Notice pursuant hereto, the amount of
indemnification to which an Indemnified Party shall be entitled under this
Article 6
shall be determined:
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(i)
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by
the written agreement between the Indemnified Party and the
Indemnitor;
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(ii)
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by
a final judgment or decree of any court of competent jurisdiction;
or
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(iii)
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by
any other means to which the Indemnified Party and the Indemnitor shall
agree.
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The
judgment or decree of a court shall be deemed final when the time for appeal, if
any, shall have expired and no appeal shall have been taken or when all appeals
taken shall have been finally determined. The Indemnified Party shall
have the burden of proof in establishing the amount of Loss suffered by
it.
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6.5
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Third Person
Claims.
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(a)
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Notices. In
order for an Indemnified Party to be entitled to any indemnification
provided for under this Agreement in respect of, arising out of or
involving a claim or demand made by any third Person against the
Indemnified Party, such Indemnified Party must give a Claim Notice to the
Indemnitor, in reasonable detail, of the third Person claim promptly after
such Indemnified Party receives written notice of the third Person claim;
provided,
however,
no delay by the Indemnified Party in notifying the Indemnitor shall
relieve the Indemnitor from any liability or obligation hereunder unless
the Indemnitor can demonstrate that it was damaged by such
delay. Thereafter, the Indemnified Party shall deliver to the
Indemnitor, promptly after the Indemnified Party’s receipt thereof, copies
of all notices and documents (including court papers) received by the
Indemnified Party relating to the third Person
claim. Notwithstanding the foregoing, if an Indemnified Party
is physically served with a complaint with regard to a third Person claim,
the Indemnified Party must notify the Indemnitor with a copy of the
complaint promptly after receipt thereof and shall deliver to the
Indemnitor promptly after the receipt of such complaint copies of notices
and documents (including court papers) received by the Indemnified Party
relating to the third Person
claim.
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(b)
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Procedure.
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(i)
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If
a third Person asserts any claim or initiates any legal proceeding against
an Indemnified Party, the Indemnitor shall have the sole and absolute
right, after the receipt of notice, at its option and at its own expense,
to be represented by counsel of its choice and to control, defend against,
negotiate, settle or otherwise deal with any proceeding, claim,
or demand which relates to any Loss indemnified against hereunder; provided, however, that
the Indemnified Party may participate in any such proceeding with counsel
of its choice and at its expense.
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(ii)
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The
parties hereto agree to cooperate fully with each other in connection with
the defense, negotiation or settlement of any such legal proceeding, claim
or demand.
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(iii)
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To
the extent the Indemnitor elects not to defend or abandons such
proceeding, claim or demand, and the Indemnified Party defends against or
otherwise deals with any such proceeding, claim or demand, the Indemnified
Party may retain counsel, at the expense of the Indemnitor, and control
the defense of such proceeding.
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(iv)
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Neither
the Indemnitor nor the Indemnified Party may consent to the entry of any
judgment or settle any such proceeding which judgment or settlement
obligates the other Party to pay any money, to perform obligations or to
admit liability without the consent of the other Party, such consent not
to be unreasonably withheld. If the Indemnified Party refuses
to consent to the settlement of any legal proceeding, claim or demand, so
long as only money damages are involved, the liability of the Indemnitor
for indemnification in respect of such legal proceeding, claim or demand
shall not exceed the amount for which the legal proceeding, claim or
demand could have been settled plus the amount of expenses incurred by the
Indemnified Party prior to the time of the proposed settlement to which it
is entitled to indemnification.
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(v)
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After
any final judgment or award has been rendered by a court, arbitration
board or administrative agency of competent jurisdiction and the time in
which to appeal there from has expired, or a settlement has been
consummated, or the Indemnified Party and the Indemnitor have arrived at a
mutually binding agreement with respect to each separate matter alleged to
be entitled to indemnification by the Indemnitor hereunder, the
Indemnified Party shall forward to the Indemnitor notice of any sums due
and owing by it with respect to such matter and the Indemnitor shall pay
all of the sums so owing to the Indemnified Party by wire transfer, or by
certified or bank cashier’s check within 30 days after the date of such
notice.
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6.6
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Rights of
Setoff. Among its other remedies available under this Agreement or
otherwise (and without prejudice to any such other remedies that may be
available to Assignee), Assignee may offset against any payments due from
Assignee to Assignor or ▇▇▇▇▇▇ pursuant to Article 2 or
otherwise, any amounts due from Assignor or ▇▇▇▇▇▇ to Assignee under this
Article 6 or otherwise.
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6.7
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Survival; Exclusive
Remedies. The representations and warranties made in this Agreement
shall survive the Closing for the periods specified in this Article 6. If
the Closing occurs, then the remedies provided in this Article 6
constitute the sole and exclusive remedies for recoveries against Assignor
or ▇▇▇▇▇▇ for breaches of the representations, warranties, covenants and
agreements in this Agreement and for the matters specifically listed in
this Article 6
as being indemnified against, but neither the foregoing nor anything else
in this Agreement shall limit the right of Assignee to seek specific
performance of this Agreement or of any contract, document or other
instrument executed and delivered pursuant to this
Agreement.
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ARTICLE
7. TERMINATION
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7.1
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Termination. Anything
contained in this Agreement to the contrary notwithstanding, this
Agreement may be terminated at any time prior to the Closing Date
by:
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(a)
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the
mutual written consent of Assignor and
Assignee;
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(b)
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Assignor
or Assignee if the Closing shall not have occurred on or before February
28, 2009 (or such later date as may be agreed to in writing by Assignor
and Assignee);
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(c)
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Assignee,
in the event of any material breach by Assignor of any of its agreements,
representations or warranties contained herein and the failure of Assignor
to cure such breach within ten (10) days after receipt of notice from
Assignee requesting such breach to be
cured;
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(d)
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Assignor,
in the event of any material breach by Assignee of any of Assignee’s
agreements, representations or warranties contained herein and the failure
of Assignee to cure such breach within ten (10) days after receipt of
notice from Assignor requesting such breach to be cured;
or
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(e)
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Assignor
or Assignee if any court of competent jurisdiction in the United States or
other Governmental Authority shall have issued an order, decree or ruling
or taken any other action restraining, enjoining or otherwise prohibiting
the consummation of the transactions described in this
Agreement.
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7.2
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Notice of
Termination. Any Party desiring to terminate this
Agreement pursuant to Section 7.1
shall give written notice of such termination to the other
Party.
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7.3
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Effect of
Termination. In the event that this Agreement is
terminated pursuant to this Article 7,
all further obligations of the parties under this Agreement (other than
Section
5.5 (Expenses)) shall be terminated without further liability of
any Party to the other; provided that
nothing herein shall relieve any Party from liability for its willful
breach of this Agreement.
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ARTICLE
8. GENERAL
PROVISIONS
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8.1
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Good Faith;
Cooperation; Further Assurances. The Parties
shall in good faith undertake to perform their obligations under this
Agreement, to satisfy all conditions and to cause the transactions
contemplated by this Agreement to be carried out promptly in accordance
with its terms. The Parties shall cooperate fully with each
other and their respective representatives in connection with any actions
required to be taken as part of their respective obligations under this
Agreement. Each Party will, at the Closing and from time to time after the
Closing, deliver to the other such further instruments necessary or
desirable, in the reasonable opinion of the requesting Party and at the
expense of the requesting Party, to consummate or document the
transactions contemplated by this
Agreement.
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8.2
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Notices. Each
notice, communication and delivery under this
Agreement
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(a)
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shall
be made in writing signed by the Party making
it;
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(b)
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shall
specify the Section to which it
relates;
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(c)
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shall
be delivered either in person, by telecopier or by nationally recognized
next business day delivery service;
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(d)
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unless
given in person, shall be given to the address specified
below;
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(e)
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shall
be deemed given (i) if delivered in person, on the date delivered, (ii) if
sent by telecopier and received before or during the normal business hours
of the recipient, on the date transmitted or, if sent after normal
business hours, on the next business day, or (iii) if sent by nationally
recognized next business day delivery service (with costs prepaid), on the
first business day after so sent;
and
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(f)
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shall
be deemed received (i) if delivered in person, on the date of personal
delivery, (ii) if telecopied and received before or during the normal
business hours of the recipient, on the day transmitted or, if received
after normal business hours, on the next business day, or (iii) if sent by
nationally recognized next business day delivery service, on the day
received.
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The
addresses and requirements for copies are set forth in Schedule
8.2.
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8.3
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Assignment; Successors
in Interest.
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(a)
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No Assignment.
Except with the prior written consent of the other Party, neither Party
shall make any assignment, by operation of law or otherwise, of its rights
and obligations under this Agreement, provided
that:
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(i)
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any
Party may assign its rights under this Agreement to another legal entity
that, directly or indirectly, controls, is controlled by or is under
common control with that Party, provided that the assigning Party shall
not be released from any of its obligations under this Agreement,
and
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(ii)
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nothing
in this Section 8.3(a)
shall be deemed to restrict any merger of any Party with or into any other
Person.
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(b)
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Binding
Nature. This Agreement is binding upon the parties and
their respective successors or assigns (whether or not permitted) and
inures to the benefit of the Parties and their permitted successors and
assigns.
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8.4
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No Third Party
Beneficiaries. The Parties do not intend to confer any
benefit under this Agreement on anyone other than the Parties, and nothing
contained in this Agreement shall be deemed to confer any such benefit on
any other Person.
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8.5
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Severability. Any
determination by any court of competent jurisdiction of the invalidity of
any provision of this Agreement that is not essential to accomplishing the
purposes of this Agreement, shall not affect the validity of any other
provision of this Agreement, which shall remain in full force and effect
and which shall be construed as to be valid under Applicable
Law.
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8.6
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Remedies. Except
as set forth in Article 6,
the rights and remedies specified in any provision of this Agreement are
in addition to all other rights and remedies a Party may have, including
any right to equitable relief and any right to ▇▇▇ for damages as a result
of a breach of this Agreement (whether or not it elects to terminate this
Agreement), and all such rights and remedies are
cumulative. Without limiting the foregoing, no exercise of a
remedy shall be deemed an election excluding any other remedy (any such
claim by any other Party being hereby
waived).
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8.7
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Controlling
Law. This Agreement is governed by, and shall be
construed and enforced in accordance with, the laws of the State of
Florida, except its laws that would render such choice of laws
ineffective.
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8.8
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Integration. This
Agreement and the other contracts, documents and instruments to be
delivered pursuant to this Agreement supersede all prior negotiations,
agreements and understandings between the parties with respect to their
subject matter (other than the provisions of the existing Confidentiality
Agreement which will remain in full force and effect), constitute the
entire agreement of the parties with respect to their subject matter, and
may not be altered or amended except in writing signed by both
parties.
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8.9
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Amendment;
Waiver. The failure of any Party at any time or times to
require performance of any provision of this Agreement shall in no manner
affect the right to enforce such provision; and no waiver by any Party of
any provision (or of a breach of any provision) of this Agreement, whether
by conduct or otherwise, in any one or more instances shall be deemed or
construed either as a further or continuing waiver of any such provision
or breach or as a waiver of any other provision (or of a breach of any
other provision) of this Agreement.
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8.10
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Counterparts. This
Agreement may be executed in one or more counterparts (one counterpart
reflecting the signatures of all parties), each of which shall be deemed
to be an original, and it shall not be necessary in making proof of this
Agreement or its terms to account for more than one of such
counterparts. This Agreement may be executed by each Party upon
a separate copy, and one or more execution pages may be detached from one
copy of this Agreement and attached to another copy in order to form one
or more counterparts.
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[signatures
on following page]
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IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be executed as of the day and year
first above written.
GES-PORT
CHARLOTTE, LLC
as
Assignee
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By
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Title:
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Exec. Vice President, CFO &
COO
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NORTH
AMERICAN NATURAL RESOURCES-SOUTHEAST, LLC,
as
Assignor
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By
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
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Member-Manager
|
FOR
PURPOSES OF ARTICLE 6:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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