EQUIPMENT PURCHASE AGREEMENT
between
MMC Chula Vista II LLC
and
Energy Parts Solutions LLC
August 7, 2009
EQUIPMENT PURCHASE AGREEMENT
THIS EQUIPMENT PURCHASE AGREEMENT (the “Agreement”) is made effective this 7th day of August, 2009 (the “Effective Date”) between ENERGY PARTS SOLUTIONS LLC, a Missouri limited liability company (“Buyer”), and MMC CHULA VISTA II LLC, a Delaware limited liability company (“Seller”).
RECITALS
| 1. | Seller previously purchased from GE Packaged Power, Inc. (“GE”) two new LM6000 industrial gas turbine generator packages and associated equipment, parts, structures and services (collectively, the “Equipment”) as more fully described in that certain Contract for U.S. Based Sale of Equipment and Services between Seller and GE dated January 25, 2008, and any subsequent amendments or change orders thereto (the “GE Contract”); |
| 2. | Buyer desires to purchase the Equipment located at GE’s storage facilities in or near Houston, Texas. The Equipment shall include only those items described in the GE Contract, a copy of which is attached hereto as Exhibit A. |
| 3. | Seller has fully paid for and owns the Equipment and is ready, willing and able to sell the Equipment to Buyer, and Buyer is ready, willing and able to buy the Equipment from Seller, pursuant to the terms and subject to the conditions set forth in this Agreement. |
AGREEMENT
FOR AND IN CONSIDERATION of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, the parties agree as follows:
1. PURCHASE AND SALE OF EQUIPMENT
(a) Upon the terms and subject to the conditions contained herein, on the Closing Date (defined below), Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, any and all of Seller’s interest in and rights to the Equipment. As the term is used in this Agreement and the exhibits hereto “Equipment” shall also mean and include copies of all of Seller’s records and files which relate to any of the Equipment, including, but not limited to, the following: (i) engineering records; (ii) any and all contracts, purchase orders or other agreements with third parties including those with GE or any other vendors, suppliers or OEM’s pertaining to the Equipment; and (iii) any other records or files in the possession of Seller relating to the Equipment, save and except for records the disclosure of which would jeopardize any privilege available to Seller relating to such records, would cause Seller to breach a confidentiality obligation to which it is bound, or would cause Seller to violate any applicable law; provided, however, that Seller’s corporate minute books, charter documents, corporate stock record books and such other books and records as pertain to the organization, existence or share capitalization of Seller and such other books and records that do not relate to the Equipment shall not be included.
| 2. | PURCHASE PRICE AND PAYMENT TERMS |
In accordance with Section 2.2 below, Buyer shall pay Seller for the Equipment the sum of Twenty Six Million Six Hundred and Fifty Thousand and No/100 Dollars ($26,650,000) (the “Purchase Price”), as allocated by the parties to the Equipment.
| (a) | Not later than one (1) business day after the Effective Date, Buyer shall deposit with Seller the sum of Three Million Dollars as a deposit towards the Purchase Price (the “Deposit”), which Deposit shall be applied towards the payment of the Purchase Price at Closing. The Deposit shall be (i) held by Seller in an account designated by Seller in its sole discretion, without interest accrual thereon for the benefit of Buyer, and (ii) non-refundable to Buyer except as expressly set forth in this Agreement. |
| (b) | At the Closing (as defined below), Buyer shall transfer and pay to Seller the balance of the Purchase Price (i.e., the Purchase Price less the Deposit) by wire transfer of immediately available funds into an account designated in writing by Seller. |
| 3. | ASSUMPTION OF LIABLITIES; POSSESSION AND REMOVAL OF EQUIPMENT; TITLE AND RISK OF LOSS |
| 3.1 | Assumption of Liabilities |
At the Closing, Buyer shall assume and agree to pay, perform and discharge when due all liabilities arising out of, in connection with or related to the ownership, removal, operation, use or maintenance of the Equipment relating to periods on or after the Closing Date (as defined below).
| 3.2 | Possession and Removal of Equipment |
At and after Closing, Seller agrees to permit Buyer and its representatives free and unencumbered access to the site where the Equipment is located so that Buyer can remove the Equipment. Seller shall use commercially reasonable efforts to provide all authorizations, obtain all third party consents, and furnish all reasonable assistance to ensure that Buyer can remove the Equipment from its present location without any added costs, delays or interference.
| 3.3 | Title and Risk of Loss |
Title to and risk of loss, damage and destruction of the Equipment shall transfer from Seller to Buyer upon the Closing Date.
| 4. | REPRESENTATIONS AND WARRANTIES |
| 4.1 | Seller Representations and Warranties. Seller hereby represents and warrants to Buyer that: |
| (a) | At the Closing Date, Seller shall have full legal and beneficial title to the Equipment, free and clear of any and all security interests, liens, claims, charges or encumbrances of any nature whatsoever, together with full power and lawful authority to deliver the Equipment to Buyer; and upon delivery of the Assignment and Bill of Sale to Buyer in accordance with Section 8.4(b), Seller shall have transferred marketable title to the Equipment to Buyer. |
| (b) | Seller is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed and has the requisite power and authority to own, lease and operate its properties and to carry on its business as now conducted. Seller is duly qualified to transact business and is in good standing in each jurisdiction in which its ownership of the Equipment and commitments made hereunder makes such qualification necessary. |
| (c) | Seller has the requisite power and authority to execute this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Seller and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of Seller. |
| (d) | The execution and delivery by Seller of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate any provision of the constituent documents of Seller, (ii) violate any order of any governmental authority to which Seller is bound or subject, (iii) violate any applicable law, or (iv) result in the imposition or creation of any lien upon the Equipment. This Agreement has been duly executed and delivered by Seller and, assuming due execution and delivery by Buyer, constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. |
| (e) | To Seller’s knowledge, no order or permit issued by, or declaration or filing with, or notification to, or waiver from any governmental authority is required on the part of Seller in connection with the execution and delivery of this Agreement, or the compliance or performance by Seller with any provision contained in this Agreement. |
| (f) | As of the Closing Date all payments under the GE Contract have been made by Seller to GE with respect to the purchase price and storage of the Equipment. All taxes due and payable by Seller with respect to the ownership of the Equipment have been paid or are being contested in good faith through the appropriate proceedings. |
| (g) | There is no legal action or order pending or, to Seller’s knowledge, overtly threatened against Seller that seeks to restrain or prohibit or otherwise challenge the consummation, legality or validity of the transactions contemplated hereby. |
| (h) | Except for such notices as have been disclosed to Buyer in writing, Seller, to Seller’s knowledge, has not received any written notice that the Equipment is in violation of any applicable laws. |
| (i) | No rights of first offer or other preferential rights to purchase any of the Equipment are held by third parties. |
4.2 Knowledge Defined
References to the “knowledge” of Seller shall refer only to the actual knowledge of the Designated Employee (as hereinafter defined) of Seller, and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller, or any affiliate of Seller, or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof or to impose upon such Designated Employee any duty to investigate the matter to which such actual knowledge, or the absence thereof, pertains. As used herein, the term “Designated Employee” shall refer to the following person: Denis Gagnon.
4.3 Survival of Seller’s Representations and Warranties
The representations and warranties of Seller set forth in Section 4.1 shall survive Closing for a period of one hundred twenty (120) days; provided, however, nowithstanding the foregoing to the contrary, Section 4.1(a) shall survive for a period of one (1) year (the “Seller Survival Period”). No claim for a breach of any representation or warranty of Seller shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was specifically disclosed by Seller to and accepted by Buyer in writing prior to Closing.
4.4 AS-IS.
EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT (i) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, AND (ii) SELLER EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING) TO BUYER OR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN PROVIDED TO BUYER BY ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, CONSULTANT, REPRESENTATIVE OR ADVISOR OF SELLER OR ANY OF ITS AFFILIATES). IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO (w) THE MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF THE EQUIPMENT, (x) THE CONTENT, CHARACTER OR NATURE OF ANY INFORMATION MEMORANDUM, REPORTS, BROCHURES, CHARTS OR STATEMENTS PREPARED BY SELLER OR THIRD PARTIES WITH RESPECT TO THE EQUIPMENT, (y) ANY OTHER MATERIALS OR INFORMATION THAT MAY HAVE BEEN MADE AVAILABLE TO BUYER OR ITS AFFILIATES, OR ITS OR THEIR EMPLOYEES, AGENTS, CONSULTANTS, REPRESENTATIVES OR ADVISORS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE ASSIGNMENT AND BILL OF SALE OR ANY DISCUSSION OR PRESENTATION RELATING THERETO AND (z) ANY IMPLIED OR EXPRESS WARRANTY OF FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, OF MERCHANTABILITY, FREEDOM FROM LATENT VICES OR DEFECTS, FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OF ANY ASSETS, RIGHTS OF A PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION OR RETURN OF THE PURCHASE PRICE, IT BEING EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT BUYER SHALL BE DEEMED TO BE OBTAINING THE EQUIPMENT IN ITS PRESENT STATUS, CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS” WITH ALL FAULTS OR DEFECTS (KNOWN OR UNKNOWN, LATENT, DISCOVERABLE OR UNDISCOVERABLE), AND THAT BUYER HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS BUYER DEEMS APPROPRIATE. AS PART OF THE PROVISIONS OF THIS SECTION 4.4, BUT NOT AS A LIMITATION THEREON, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED, AND BUYER HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS, OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL LAW, RULES OR REGULATIONS.
Seller and Buyer acknowledge that the compensation to be paid to Seller for the Equipment has been decreased to take into account that the Equipment is being sold subject to the provisions of this Section 4.4. Seller and Buyer agree that the provisions of this Section 4.4 shall survive the Closing Date.
| 4.5 | Buyer’s Representations and Warranties. Buyer hereby represents and warrants to Seller that: |
| (a) | Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed and has the requisite power and authority to own, lease and operate its properties and to carry on its business as now conducted. Buyer is duly qualified to transact business and is in good standing in each jurisdiction in which its commitments hereunder makes such qualification necessary. |
| (b) | Buyer has the requisite power and authority to execute this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Buyer and the consummation by Buyer of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer and, assuming due execution and delivery by Seller, constitutes a valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms. |
| (c) | The execution and delivery by Buyer of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate any provision of the constituent documents of Buyer, (ii) violate any order of any governmental authority to which Buyer is bound or subject, or (iii) violate any applicable law. |
| (d) | To Buyer’s knowledge, no order or permit issued by, or declaration or filing with, or notification to, or waiver from any governmental authority is required on the part of Buyer in connection with the execution and delivery of this Agreement, or the compliance or performance by Buyer with any provision contained in this Agreement. |
| (e) | There is no legal action or order pending or, to Buyer’s knowledge, overtly threatened against Buyer that seeks to restrain or prohibit or otherwise challenge the consummation, legality or validity of the transactions contemplated hereby. |
| (f) | No person has acted, directly or indirectly, as a broker, finder or financial advisor for Buyer in connection with the transactions contemplated by this Agreement, and Seller is not or will not become obligated to pay any fee or commission or like payment to any broker, finder or financial advisor, as a result of the consummation of the transactions contemplated by this Agreement based upon any arrangement made by or on behalf of Buyer. |
4.6 Knowledge Defined
References to the “knowledge” of Buyer shall refer only to the actual knowledge of the Designated Employee (as hereinafter defined) of Buyer, and shall not be construed, by imputation or otherwise, to refer to the knowledge of Buyer, or any affiliate of Buyer, or to any other officer, agent, manager, representative or employee of Buyer or any affiliate thereof or to impose upon such Designated Employee any duty to investigate the matter to which such actual knowledge, or the absence thereof, pertains. As used herein, the term “Designated Employee” shall refer to the following person: Jeff Canon.
4.7 Survival of Buyer’s Representations and Warranties
The representations and warranties of Buyer set forth in Section 4.5 shall survive Closing for a period of one hundred twenty (120) days (the “Buyer Survival Period”). No claim for a breach of any representation or warranty of Buyer shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was specifically disclosed by Buyer to and accepted by Seller in writing prior to Closing.
| 5. | INSPECTION, PRESERVING AND OPERATING THE EQUIPMENT |
| 5.1 | Inspection and Access |
Immediately following the Effective Date Buyer and its representatives shall, upon prior written notice to Seller, have access to the site where the Equipment is located so that Buyer and its representatives can inspect the Equipment and review the books, records and information relating thereto, and to speak to the personnel of Seller that may have information relating to the history of the Equipment, provided, however, that Seller shall have the right to have a representative present at any such access to the site. Such activities shall include the Buyer’s right to such inspections deemed appropriate by Buyer in order to assess the integrity and condition of the Equipment, provided that any and all such inspections shall be made only upon prior written notice to Seller, Seller shall have the right to have a representative present for any such inspections, all inspections shall be performed in compliance with all applicable laws, and Buyer shall deliver to Seller a copy of any data, results or reports prepared in connection with such inspections. Buyer will at all times while on the site abide by GE’s safety rules and regulations. Seller agrees to cooperate with Buyer and provide all reasonable assistance in relation to Buyer performing its inspection activities. Buyer shall, upon prior written notice to Seller, also be permitted to speak directly with vendors and suppliers associated with the Equipment, including GE and any other OEMs, and if required, Seller shall promptly provide all necessary authorization and assistance in order that Buyer can freely engage said vendors and suppliers in obtaining information from them as part of Buyer’s inspection activities, provided that Seller shall have the right to have a representative participate in any such engagement. Following any inspection of the Equipment, Buyer shall restore the Equipment to its original condition as existed prior to any such inspections. Upon request by Seller, Buyer shall provide Seller with evidence that Buyer has a policy of general liability insurance, from an insurer and in an amount reasonably acceptable to Seller, which insurance shall (i) name Seller as an additional insured party and (ii) provide coverage against any claim for personal liability or property damage caused by Buyer or its agents, employees or contractors in connection with such inspections.
5.2 Preserving the Equipment
During the period from the Effective Date to and through the Closing Date, Seller shall use commercially reasonable efforts to conduct its business (as it pertains to the Equipment) in all material respects in the ordinary course of business and to maintain and preserve the Equipment consistent with Seller’s past practices and GE and any other OEM’s recommendations. No later than (5) business days from the Effective Date Buyer will obtain and maintain through the Closing Date insurance for the physical loss or damage to the Equipment with a policy limit of not less than the Purchase Price and with a maximum deductible of $50,000. Seller shall be named as an additional insured on such policy and shall be provided with a certificate of coverage. Seller shall maintain its current coverage on the Equipment until Buyer’s insurance becomes effective. In the event (i) Buyer fails to provide such coverage or (ii) the Parties determine that Seller’s insurance coverage is more cost-effective than Buyer’s insurance, then Seller will keep its coverage in place and Buyer will be obligated to reimburse Seller for the cost thereof through the Closing Date.
6.1 Buyer Indemnity
During the Buyer Survival Period, Buyer assumes liability for, and hereby agrees to indemnify, protect, save and keep harmless Seller and its directors, officers, and employees from and against any and all liabilities, obligations, losses, damages, penalties, claims (including, without limitation, claims involving strict or absolute liability in tort), actions, suits, costs, expenses and disbursements, including, without limitation, reasonable attorneys’ fees and expenses, of any kind or nature, which may be imposed on, incurred by or asserted against Seller arising out of and in connection with (i) a breach by Buyer of its obligations under this Agreement or (ii) the negligence of Buyer, its employees, representative, contractors and agents; provided, however, that Buyer shall not be required to indemnify Seller or its assigns for any claim resulting from acts which would constitute Seller’s misconduct or negligence or a breach by the Seller of the terms of this Agreement.
6.2 Seller Indemnity
During the Seller Survival Period, Seller assumes liability for, and hereby agrees to indemnify, protect, save and keep harmless Buyer and its directors, officers, and employees from and against any and all liabilities, obligations, losses, damages, penalties, claims (including, without limitation, claims involving strict or absolute liability in tort), actions, suits, costs, expenses and disbursements, including, without limitation, reasonable attorney’s fees and expenses, of any kind or nature, which may be imposed on, incurred by or asserted against Buyer arising out of and in connection with (i) a breach by Seller of its obligations under this Agreement or (ii) the negligence of Seller, its employees, representative, contractors and agents; provided, however, that Seller shall not be required to indemnify Buyer or its assigns for any claim resulting from acts which would constitute Buyer’s misconduct or negligence or a breach by the Buyer of the terms of this Agreement or any other agreement between Seller and Buyer.
All ad valorem taxes, real property taxes and personal property taxes relating to the Equipment for the year in which the Closing Date occurs shall be apportioned as of the Closing Date between Seller and Buyer. Seller shall be liable for the portion of such taxes based upon the number of days in the year occurring prior to the Closing Date, and Buyer shall be liable for the portion of such taxes based upon the number of days in the year occurring on and after the Closing Date. For any year in which an apportionment is required, Buyer shall file all required reports and returns incident to these taxes assessed for the year in which the Closing Date occurs that are not filed by Seller as of the Closing Date. Seller shall pay to Buyer, at the time of Buyer’s remittance, Seller’s share of such taxes. If Seller has paid any portion of such taxes apportioned to Buyer under this Section 7, Buyer shall pay to Seller, promptly upon notice from Seller of the portion of such taxes apportioned to Buyer, Buyer’s share of such taxes. Buyer shall pay all sales taxes, if any, arising in connection with the sale of the Equipment.
8.1 Conditions Precedent to Obligations of Each Party
The respective obligations of Seller and Buyer to consummate the transactions contemplated by this Agreement are subject to no order issued by any court of competent jurisdiction preventing the consummation of the transactions contemplated hereby shall be in effect, nor shall any material proceeding initiated by any governmental authority of competent jurisdiction having valid enforcement authority seeking such an order be pending, nor shall there be any action taken, or any law or order enacted, entered or enforced that has not been subsequently overturned or otherwise made inapplicable to this Agreement, that makes the consummation of the transactions contemplated hereby illegal.
8.2 Conditions Precedent to Obligations of Buyer
The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Buyer, in whole or in part, subject to applicable law):
(a) All of the representations and warranties of Seller contained herein shall be true and correct in all material respects on and as of the Closing Date, except those representations and warranties of Seller that speak of a certain date, which representations and warranties shall have been true and correct in all material respects as of such date;
(b) Seller shall have performed and complied with in all material respects its obligations and covenants required by this Agreement to be performed or complied with by Seller on or prior to the Closing Date; and
(c) Buyer shall have been furnished with the documents referred to in Section 8.4.
8.3 Conditions Precedent to Obligations of Seller
The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior to or on the Closing Date, of each of the following conditions (any or all of which may be waived by Seller, in whole or in part, subject to applicable law):
(a) All of the representations and warranties of Buyer contained herein shall be true and correct in all material respects on and as of the Closing Date, except those representations and warranties of Buyer that speak of a certain date, which representations and warranties shall have been true and correct in all material respects as of such date;
(b) Buyer shall have performed and complied with in all material respects all obligations and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date; and
(c) Seller shall have been furnished with the documents referred to in Section 8.5.
8.4 Documents to Be Delivered by Seller
At the Closing, Seller shall deliver to Buyer the following:
(a) a certificate of an officer of Seller certifying that the closing conditions set forth in Sections 8.2 (a) have been satisfied;
(b) the Assignment and Bill of Sale substantially in the form of Exhibit B and such other instruments of conveyance necessary for the transfer of the Equipment, duly executed by Seller; and
(c) a Non-Foreign Affidavit in compliance with the provisions of Treasury Regulation § 1.1445-2(b)(2) certifying that Seller is not a foreign person within the meaning of the Code.
8.5 Documents to Be Delivered by Buyer
At the Closing, Buyer shall deliver to Seller the following:
(a) evidence of the wire transfer referred to in Section 2.2(b) hereof;
(b) a certificate of an officer of Buyer certifying that the closing conditions set forth in Section 8.3(a) have been satisfied; and
(c) the Assignment and Bill of Sale substantially in the form of Exhibit B and such other instruments of conveyance necessary for the transfer of the Equipment, duly executed by Buyer.
8.6 Time and Place of Closing
The “Closing” of the purchase and sale of the Equipment shall take place on or before 2:00 p.m., local time, no later than sixty (60) days from the Effective Date, and after the conditions to Closing set forth in Sections 8.1, 8.2 and 8.3 (excluding conditions that, by their terms, cannot be satisfied until the Closing) have been satisfied (or waived by the party entitled to waive such condition) (as the same may be extended pursuant to the provisions of Section 8.1(b), the “Closing Date) or at such other location or time as may be agreed by the parties.
8.7 Failure of Condition.
In the event of the failure of any condition to Closing set forth in Section 8.1 or Section 8.2, then this Agreement shall terminate and the Deposit shall be returned to Buyer and Seller shall pay Buyer any amounts owed pursuant to Section 8.1(b). In the event of the failure of any condition to Closing set forth in Section 8.3, then this Agreement shall terminate and the Deposit shall be retained by Seller.
9. DEFAULT AND REMEDIES
It shall be an event of default if all or any of the following shall have occurred (herein “Event of Default”):
(a) If either party shall default in the performance of any of the material provisions contained in the Agreement, which default shall continue for ten (10) business days after written notice of default to the defaulting party; or
(b) If any representation or warranty made by either party herein or made in any statement or certificate furnished or required hereunder, or in connection with the execution and delivery of this Agreement, proves untrue in any material respect as of the date of issuance or making thereof.
(a) Upon the occurrence of an Event of Default by Seller, Buyer shall be entitled, as its sole remedy, either (a) to receive any amounts Seller owes to Buyer under Section 8.1(b) and the return of the Deposit and any other moneys paid by Buyer to Seller as of the date of the Event of Default, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller’s obligation to execute the documents required to convey the Equipment to Buyer, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Buyer expressly waives its rights to seek damages upon the occurrence of an Event of Default by Seller hereunder. Buyer shall be deemed to have elected to terminate this Agreement and receive the Deposit and any other moneys paid by Buyer to Seller as of the date of the Event of Default if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in New York, New York, on or before forty five (45) days following the date upon which Closing was to have occurred.
(b) Upon the occurrence of an Event of Default by Buyer, Seller shall be entitled to retain the Deposit as liquidated damages (the “Liquidated Damages”), which shall be the sole and exclusive remedy and measure of damages as a result of the occurrence of an Event of Default by Buyer. Seller expressly waives its rights to seek damages upon the occurrence of an Event of Default by Buyer hereunder. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT HEREUNDER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE LIQUIDATED DAMAGES IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER’S INDEMNITY OBLIGATIONS UNDER OTHER SECTIONS HEREOF.
Any and all notices given, or required to be given hereunder shall be in writing and shall be deemed to have been adequately given when received by the party to whom such notice is being given. Notices shall be addressed if to Buyer to: ENERGY PARTS SOLUTIONS LLC, Attn: Jeff Canon, 2001 Adams Road, Sedalia, Missouri 65301; and if to Seller to: MMC CHULA VISTA II LLC., 26 Broadway, Suite 960, New York, New York 10004, Attn: Denis Gagnon, or such other address as the respective parties hereto shall from time to time designate in writing to the other party.
All Exhibits described in this Agreement shall be deemed to be incorporated and made a part of this Agreement, except that if there is any inconsistency between this Agreement and the provisions of any Exhibit, the provisions of the Exhibit shall control. The parties shall, from time to time prior to or at the Closing by written agreement, supplement or amend the description of the Equipment in this Agreement and the Exhibits to accurately and more fully reflect the list of Equipment that is being conveyed hereunder.
Caption and section headings set forth are for convenience of reference only and shall not in any manner be deemed to limit or restrict the context of the section to which they relate.
This Agreement is entered into and shall be governed by and interpreted in accordance with the laws of the State of New York notwithstanding its conflict of law provisions.
This Agreement supersedes all prior understandings, representations, negotiations, and correspondence between the parties and constitutes the entire Agreement between the parties with respect to the transaction contemplated and shall not in any manner be supplemented, amended or modified by any course of dealing, course of performance or usage of trade or by any other means except by a written instrument executed on behalf of the parties by their duly authorized officers.
Seller and Buyer agree to treat this Agreement and the terms hereof as confidential and not to, without the prior written consent of the other party hereto, disclose the terms hereof to any other person except (i) to its counsel and accountants or other agents or professional advisors in connection with or relating to the transactions contemplated by this Agreement, (ii) to any court, governmental agency or instrumentality or other supervising body requesting such disclosure, (iii) to any person as may be required by any government regulation or order (including any regulation, request or order of a bank regulatory agency or authority or under any disclosure requirements affecting public companies, including, without limitation, regulations of the Securities and Exchange Commission), law, statute, regulations, decrees, subpoenas or court orders, (iv) its directors, officers, employees, affiliates, successors and assigns, (v) to any banks or other financial institutions in any debt financing by or for the benefit of Buyer or (vi) in connection with any enforcement of the terms of this Agreement. Seller and Buyer shall cause its officers, directors, agents, and employees to comply with the foregoing paragraph. Notwithstanding the foregoing to the contrary, Seller shall, upon reasonable prior written notice to Buyer, have the right to issue press releases regarding this transaction.
Seller and Buyer agree that from and after the Closing Date, each of them will, and will cause their respective representatives and affiliates to execute and deliver such further instruments of conveyance and transfer and take such other action as may reasonably be requested by any party hereto to carry out the purposes and intents hereof.
If, subsequent to the date of this Agreement and prior to the Closing, a portion of the Equipment in excess of $10,000 is damaged or destroyed by fire or other casualty, is taken in condemnation or under the right of eminent domain, or proceedings for such purposes are pending or threatened (collectively, “Casualty Loss”), Buyer shall have the option to either (a) purchase the Equipment notwithstanding any such Casualty Loss, without reduction of the Purchase Price or (b) terminate this Agreement without further obligation of either party except that Buyer shall be entitled to receive the return of the Deposit and all other monies paid to Seller towards the Purchase Price. In the event of subpart (a) above Seller shall (x) at the Closing, pay to Buyer all sums paid to Seller by insurance companies and other third parties by reason of the Casualty Loss of such Equipment, (y) assign, transfer and set over unto Buyer all of the right, title and interest of Seller in and to any unpaid awards or other payments from third parties arising therefrom, and (z) not voluntarily compromise, settle or adjust any material amounts payable by reason of any Casualty Loss of any portion of the Equipment without first obtaining the written consent of Buyer.
Except as otherwise set forth in this Agreement, Seller and Buyer shall each bear its own expenses (including, without limitation, attorney’s fees) incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby.
| 10.10 | Submission to Jurisdiction |
The parties agree to unconditionally and irrevocably submit to the exclusive jurisdiction of the federal or state courts sitting in New York, and any appellate court from any thereof, for the resolution of claim or dispute relating to or arising under this Agreement.
Neither Seller nor Buyer shall be responsible to the other for any delay (“Excusable Delay”) in the performance of its duties under this Agreement due to any cause beyond its reasonable control and not occasioned by its intentional act, fault or negligence including, but not limited to acts of God, strikes, lockout or other industrial disturbances, acts of public enemies, orders of any kind of the government of the United States or any state or local government or any of their departments, agencies or officials, or any civil or military authority, insurrections, riots, earthquake, fire, storm, adverse weather conditions, restraint of government and people, civil disturbances, or explosions. Either Seller or Buyer shall promptly notify the other when an Excusable Delay has occurred or is likely to be incurred and in each case specify to the extent practicable the estimated extent of such delay. Either party may terminate this Agreement in the event the Excusable Delay lasts more than thirty (30) days.
If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect.
| 10.13 | Limitation of Liability |
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, NO PARTY HERETO (OR ITS SUBSIDIARIES, AFFILIATES OR ASSIGNS) SHALL, UNDER ANY CIRCUMSTANCE, BE LIABLE TO ANY OTHER PARTY (OR ITS SUBSIDIARIES, AFFILIATES OR ASSIGNS) FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES CLAIMED BY SUCH OTHER PARTY UNDER THE TERMS OF OR DUE TO ANY BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR INCOME, COST OF CAPITAL, OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY.
| 10.14 | Binding Effect; Assignment |
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No assignment of this Agreement or of any rights or obligations hereunder may be made by Seller or Buyer (by operation of law or otherwise) without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void. Notwithstanding the foregoing, Buyer may be entitled to assign its rights in and to this Agreement to an affiliate or subsidiary entity without the consent of Seller, provided, that (a) the assignee shall expressly assume all of Buyer’s obligations under this Agreement pursuant to a written agreement in form and substance reasonably acceptable to Seller, (b) Seller receives a copy of such assignment and assumption agreement on or before two (2) business days prior to the Closing, and (c) the assignee shall be deemed to have reaffirmed all of the representations and warranties of Buyer herein.
This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
| 10.16 | Brokerage, Finder, Financial Advisor Fees. |
Each party agrees that should any claim be made for brokerage commissions or finder’s fees by any broker, finder or financial advisor by, through or on account of any acts of said party or its representatives, said party will indemnify and hold the other party free and harmless from and against any and all loss, liability, cost, damage and expense in connection therewith. The provisions of this Section 10.16 shall survive Closing or earlier termination of this Agreement.
| 10.17 | Buyer’s Acknowledgment. |
Buyer has received and reviewed a copy of the GE Contract and Buyer acknowledges and accepts the limitations and restriction set forth in Section 24.3 therein and under the GE Contract for the benefit of GE and its subcontractors and suppliers. Buyer further disclaims any rights of Seller under the GE Contract.
| 11. | AFFIRMATION BY THE PARTIES |
11.1 In performance of its duties under this Agreement, each Party shall be expressly prohibited from engaging directly or indirectly in any illegal, immoral or unethical conduct. Illegal conduct shall be that defined under the Laws of the United States.
11.2 Each Party shall comply, and require that its affiliates, agents, and employees comply, in all respects with the United States Foreign Corrupt Practices Act, any comparable law or regulation in any applicable jurisdiction and any multilateral international conventions dealing with bribery and corrupt practices, as they may be amended from time to time, regardless of whether they are by their terms otherwise applicable to them. Without limiting the generality of the foregoing, no Party hereunder will use, and will require that its respective agents, adviser, and affiliates will not use, any payment or other benefit derived in connection with this Agreement to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement or any of the transactions contemplated hereunder in connection with the services, while knowing or having reason to know that any portion of this money, gift or thing will, directly or indirectly, be given, offered or promised to: (i) an employee, officer or other person acting in an official capacity for any government or its instrumentality; or (ii) any political party, party official or candidate for political office.
11.3 The Parties will not, and will require that their respective employees, agents, and adviser will not, conduct business with or assist an entity or person owned or controlled by, a “suspected terrorist” as defined by U.S. Executive Order 13224.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective as of the day and year first above written by their duly authorized officers or representatives.
| Seller: | | Buyer: | |
| | | | | |
| MMC CHULA VISTA II LLC | | ENERGY PARTS SOLUTIONS LLC | |
| | | | | |
| By: | /s/ Denis Gagnon | | By: /s/ Scott Dieball | |
| | | | | |
| Title: | CFO | | Title: VP Of Business Operations | |
| | | | | |
| Date: | August 7, 2009 | | Date: | August 7, 2009 | |
EXHIBIT A
DESCRIPTION OF EQUIPMENT
EXHIBIT B
ASSIGNMENT AND BILL OF SALE
THIS ASSIGNMENT AND BILL OF SALE (“Assignment”), is made and entered this __ day of __________, 2009, from MMC CHULA VISTA II LLC, a Delaware limited liability company (“Assignor”), whose address is c/o MMC Energy, Inc., 26 Broadway #960 New York, NY 10004, to ENERGY PARTS SOLUTIONS LLC, a Missouri limited liability company (“Assignee”), whose address is 2001 Adams Road, Sedalia, Missouri 65301.
WITNESSETH:
That Assignor, for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby sell, transfer, assign, and convey to Assignee, all of Assignor’s right, title and interest in and to the equipment, machinery, and personal property listed on Exhibit A (collectively, the “Equipment”):
TO HAVE AND TO HOLD to Assignee, its successors and assigns, forever, subject to the terms and conditions set forth below.
1. Disclaimers.
| (a) | EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN SECTION 2 (i) ASSIGNOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, AND (ii) ASSIGNOR EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING) TO ASSIGNEE OR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN PROVIDED TO ASSIGNEE BY ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, CONSULTANT, REPRESENTATIVE OR ADVISOR OF ASSIGNOR OR ANY OF ITS AFFILIATES). IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASSIGNOR EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO (i) THE MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF THE EQUIPMENT, (ii) THE CONTENT, CHARACTER OR NATURE OF ANY INFORMATION MEMORANDUM, REPORTS, BROCHURES, CHARTS OR STATEMENTS PREPARED BY ASSIGNOR OR THIRD PARTIES WITH RESPECT TO THE EQUIPMENT, (iii) ANY OTHER MATERIALS OR INFORMATION THAT MAY HAVE BEEN MADE AVAILABLE TO ASSIGNEE OR ITS AFFILIATES, OR ITS OR THEIR EMPLOYEES, AGENTS, CONSULTANTS, REPRESENTATIVES OR ADVISORS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS ASSIGNMENT AND BILL OF SALE OR ANY DISCUSSION OR PRESENTATION RELATING THERETO, AND (iv) ANY IMPLIED OR EXPRESS WARRANTY OF FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2, ASSIGNOR FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, OF MERCHANTABILITY, FREEDOM FROM LATENT VICES OR DEFECTS, FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OF ANY ASSETS, RIGHTS OF A PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION OR RETURN OF THE PURCHASE PRICE, IT BEING EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT ASSIGNEE SHALL BE DEEMED TO BE OBTAINING THE EQUIPMENT IN ITS PRESENT STATUS, CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS” WITH ALL FAULTS OR DEFECTS (KNOWN OR UNKNOWN, LATENT, DISCOVERABLE OR UNDISCOVERABLE), AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE. AS PART OF THE PROVISIONS OF THIS SECTION 1(a), BUT NOT AS A LIMITATION THEREON, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED, AND BUYER HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS, OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL LAW, RULES OR REGULATIONS. |
Seller and Buyer acknowledge that the compensation to be paid to Seller for the Equipment has been decreased to take into account that the Equipment is being sold subject to the provisions of this Section 1(a).
(b) Assignor and Assignee agree that, to the extent required by applicable law to be effective, the disclaimers of certain representations and warranties contained in this Section 1 are “conspicuous” disclaimers for the purpose of any applicable law.
2. Further Agreements. Assignor and Assignee agree that the transfer and assignment of the Equipment is conditioned upon the following agreements between the parties:
(a) The Equipment shall be removed from its present location by Assignee at Assignee’s sole risk and cost. Seller shall provide all authorizations, obtain all third party consents, and furnish all reasonable assistance to ensure that Buyer can remove the Equipment from its present location without any added costs, delays or interference.
(b) Assignor shall ensure that Assignee and/or its designated contractors shall have access to the site for purposes of allowing Assignee to fulfill its obligations under this Section 2. Assignee agrees to indemnify and hold harmless Assignor, its working interest partners, contractors or subcontractors and the employees, officers, directors of any of them for all claims, damages (including reasonable attorney’s fees) and causes of action arising out of the negligence of Assignee’s (or its contractors’ or subcontractors’) while on the site for any purpose contemplated by this Assignment, including but not limited to inspection, removal and transportation of the Equipment. Assignee agrees to provide proof of Assignee’s insurance to support its indemnity obligations under this Section 2(b). Assignor agrees to indemnify and hold harmless Assignee, its contractors or subcontractors and the employees, officers, directors of any of them for all claims, damages (including reasonable attorney’s fees) and causes of action arising out of the negligence of Assignor (or its contractors’ or subcontractors’) while Assignee is on the site for any purpose contemplated by this Assignment, including but not limited to inspection, removal and transportation of the Equipment.
(c) Seller hereby represents and warrants to Buyer that as of the date hereof Seller has and hereby conveys to Buyer full legal, marketable and beneficial title to the Equipment, free and clear of any and all security interests, liens, claims, charges or encumbrances of any nature whatsoever and that it has made all payments under the GE Contract to GE with respect to the purchase price and storage of the Equipment.
3. Miscellaneous.
(a) This Assignment shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to any conflicts of law rule that would direct application of the laws of another jurisdiction. The parties agree to unconditionally and irrevocably submit to the exclusive jurisdiction of the federal or state courts sitting in New York, and any appellate court from any thereof, for the resolution of claim or dispute relating to or arising under this Assignment.
(b) Assignor and Assignee agree that from and after the date hereof, each of them will, and will cause their respective representatives and affiliates to execute and deliver such further instruments of conveyance and transfer and take such other action as may reasonably be requested by any party hereto to carry out the purposes and intents hereof.
(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ASSIGNMENT OR OTHERWISE, NO PARTY HERETO (OR ITS SUBSIDIARIES, AFFILIATES OR ASSIGNS) SHALL, UNDER ANY CIRCUMSTANCE, BE LIABLE TO ANY OTHER PARTY (OR ITS SUBSIDIARIES, AFFILIATES OR ASSIGNS) FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES CLAIMED BY SUCH OTHER PARTY UNDER THE TERMS OF OR DUE TO ANY BREACH OF THIS ASSIGNMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR INCOME, COST OF CAPITAL, OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY.
IN WITNESS WHEREOF, the parties have caused this Assignment to be executed effective as of the day and year first above written by their duly authorized officers or representatives.
| Assignor: | Assignee: |
| | |
| MMC CHULA VISTA II LLC | ENERGY PARTS SOLUTIONS LLC |
| | |
| By: /s/ Denis Gagnon | By: /s/ Scott Dieball |
| | |
| Title: CFO | Title: VP of Business Operations |
| | |
| Date: August 7, 2009 | Date: August 7, 2009 |
EXHIBIT A
TO
ASSIGNMENT AND BILL OF SALE
DESCRIPTION OF EQUIPMENT
GE PACKAGED POWER, INC.
CONTRACT
FOR U.S. BASED SALE OF
EQUIPMENT & SERVICES
MMC Energy Inc
Chula Vista
Energy Upgrade Project
25 January 2008
GE AEP Contract Form Rev. 1 (February 10 2003); JEA Rev Dec. 5, 2005
| 1.0 | | Table of Contents | | i |
Article 1 | | Definitions | | 1 |
Article 2 | | Scope of Supply | | 1 |
| | | | | |
| Article 3 | | Price | | 1 |
Article 4 | | Options | | 2 |
Article 5 | | Payments | | 3 |
| 5.1 | | Payment Schedule | | 3 |
| 5.2 | | Effect of Changes in Contract Price | | 3 |
| 5.3 | | No Offset | | 3 |
| 5.4 | | Further Assurances | | 4 |
| | | | | |
| Article 6 | | Termination by Purchaser for Convenience | | 4 |
Article 7 | | Title Transfer, Delivery, Risk of Loss, Shipment to Storage | | 4 |
| 7.1 | | Passage of Title | | 4 |
| 7.2 | | Lien Waiver | | 4 |
| 7.3 | | Delivery and Delivery Point | | 5 |
| 7.4 | | Passage of Risk of Loss | | 5 |
| 7.5 | | Shipment to Storage | | 5 |
| 7.6 | | Seller’s Transportation Service | | 6 |
Article 8 | | Schedule | | 7 |
Article 9 | | Performance Guarantees | | 8 |
Article 10 | | Aggregate Limitation on Liquidated Damages | | 10 |
Article 11 | | Performance Guarantee Testing | | 10 |
| 11.1 | | Performance Tests | | 10 |
| 11.2 | | Performance Testing | | 10 |
| 11.3 | | Emissions Testing | | 10 |
| 11.4 | | Cure Period | | 11 |
| 11.5 | | Cost of Tests and Re-Tests | | 11 |
| 11.6 | | Degradation | | 12 |
Article 12 | | Inspection and Factory Tests | | 12 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page i
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| 12.1 | | Inspections and Tests at Seller’s Facilities | | 12 |
| 12.2 | | Inspections and Tests at Suppliers’ Facilities | | 12 |
| 12.3 | | Inspection Not Acceptance | | 12 |
Article 13 | | Warranty Period | | 12 |
Article 14 | | Warranty | | 13 |
| 14.1 | | Warranty | | 13 |
| 14.2 | | Remedy | | 13 |
| 14.3 | | Warranty on Remedial Work | | 14 |
| 14.4 | | Exclusions | | 14 |
| 14.5 | | Exclusive Remedies and Warranties | | 14 |
Article 15 | | Taxes | | 15 |
| 15.1 | | Seller Taxes | | 15 |
| 15.2 | | Purchaser Taxes | | 15 |
| Article 16 | | EEO and Compliance with Laws | | 15 |
| Article 17 | | Pricing and Scope Assumptions | | 16 |
| 17.1 | | Original Equipment Definition | | 16 |
| 17.2 | | Pricing Assumptions | | 16 |
| 17.3 | | Changes to Codes and Standards or to Federal Laws | | 16 |
| 17.4 | | Other Changes to Equipment Scope or Configuration, State or Local Laws, Ambient Site Conditions and Site Requirements | | 16 |
| 17.5 | | Order Definition Meeting | | 17 |
| 17.6 | | Project Manager | | 17 |
| 17.7 | | Automatic Release | | 17 |
| 17.8 | | Permitting Support | | 17 |
| 17.9 | | Global Sourcing. | | 17 |
| 17.10 | | Electronic Communication | | 18 |
Article 18 | | Changes | | 18 |
| 18.1 | | Purchaser-Initiated Changes | | 18 |
| 18.2 | | Seller-Initiated Changes | | 18 |
| 18.3 | | Contents of Draft Change Order | | 18 |
| 18.4 | | Process for Concluding Change Order | | 19 |
| 18.5 | | Agreement Required | | 19 |
| 18.6 | | Changes to Equipment Not Practicable | | 19 |
Article 19 | | Excusable Delays | | 19 |
Article 20 | | Patents | | 20 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page ii
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| 20.1 | | Patent Indemnity | | 20 |
| 20.2 | | Exclusions | | 21 |
Article 21 | | General Indemnity | | 21 |
| 21.1 | | Seller’s Indemnity | | 21 |
| 21.2 | | Purchaser’s Indemnity | | 21 |
Article 22 | | Insurance | | 22 |
| 22.1 | | Comprehensive General Liability | | 22 |
| 22.2 | | Automobile Liability | | 22 |
| 22.3 | | Worker’s Compensation | | 22 |
| 22.4 | | Certificates of Insurance | | 22 |
| 22.5 | | Purchaser’s Insurance | | 23 |
Article 23 | | Termination for Cause; Suspension | | 23 |
| 23.1 | | Grounds for Termination by Purchaser | | 23 |
| 23.2 | | Remedy in the Event of Termination by Purchaser | | 23 |
| 23.3 | | Suspension by Purchaser | | 24 |
| 23.4 | | Grounds for Termination by Seller | | 24 |
| 23.5 | | Remedy in the Event of Termination by Seller | | 25 |
| 23.6 | | Suspension by Seller | | 25 |
Article 24 | | Limitation of Liability | | 25 |
| 24.1 | | Limitation | | 25 |
| 24.2 | | Exclusion of Consequential Damages | | 25 |
| 24.3 | | Subsequent Purchasers | | 25 |
| 24.4 | | Gratuitous Advice | | 26 |
| 24.5 | | “Seller” Defined | | 26 |
| 24.6 | | Limitations to Prevail | | 26 |
Article 25 | | Proprietary Information | | 26 |
| 25.1 | | Confidentiality | | 26 |
| 25.2 | | Exclusions | | 27 |
Article 26 | | Assignment and Change in Control | | 28 |
| 26.1 | | Eligible Assignees | | 28 |
| 26.2 | | Purchaser’s Right to Assign to Eligible Assignees | | 28 |
| 26.3 | | Collateral Assignment | | 29 |
| 26.4 | | All Other Assignments and Transfers by Purchaser | | 29 |
| 26.5 | | Seller’s Right to Assign | | 29 |
| 26.6 | | Conditions | | 29 |
| 26.7 | | Change in Control of Purchaser | | 29 |
Article 27 | | Dispute Resolution | | 29 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page iii
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| 27.1 | | Referral to Senior Management | | 29 |
| 27.2 | | Arbitration | | 30 |
Article 28 | | Governing Law | | 31 |
Article 29 | | Software License | | 31 |
| 29.1 | | Grant of License | | 31 |
| 29.2 | | Distribution and Derivative Works | | 32 |
| 29.3 | | Upgrades | | 32 |
Article 30 | | Contract Documents | | 32 |
Article 31 | | Effective Date | | 32 |
Article 32 | | Entire Agreement | | 33 |
Article 33 | | Miscellaneous Provisions | | 33 |
| 33.1 | | Third-Party Beneficiaries | | 33 |
| 33.2 | | Export Control | | 33 |
| 33.3 | | Survival | | 33 |
| 33.4 | | Non-Waiver | | 33 |
| 33.5 | | Invalidity | | 33 |
| 33.6 | | No Nuclear Use | | 34 |
| 33.7 | | Changes and Improvements Beyond Scope | | 34 |
| 33.8 | | Counterparts | | 34 |
Attachment 1 | Defined Terms | | 36 |
Attachment 2 | Scope of Supply | | 40 |
| 1.1 | | Basic Scope Description | | 40 |
| 1.1.1 | | Gas Turbine | | 40 |
| 1.1.2 | | Generator | | 40 |
| 1.1.3 | | Unit Enclosure | | 40 |
| 1.1.4 | | Gas Turbine / Generator Baseplate | | 40 |
| 1.1.5 | | Air Inlet System | | 41 |
| 1.1.6 | | Turbine Exhaust | | 41 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page iv
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| 1.1.7 | | Fuel System | | 41 |
| 1.1.8 | | Lube Oil Systems | | 41 |
| 1.1.9 | | Electro-Hydraulic Start System | | 42 |
| 1.1.10 | | Fire Protection System | | 42 |
| 1.1.11 | | Digital Control System | | 42 |
| 1.1.12 | | Generator Protective Relays | | 42 |
| 1.1.13 | | Soak Wash System | | 43 |
| 1.1.14 | | Component Testing and Package Full Load Test | | 43 |
| 1.1.15 | | Drawings, Data and Manuals | | 43 |
| 1.1.16 | | Training | | 44 |
| 1.1.17 | | Improvements and Changes | | 44 |
| 1.2 | | Optional Equipment and Services Checklist and Descriptions | | 45 |
| 1.2.1 | | Factory Options | | 45 |
| 1.2.2 | | Extended Scope Equipment Options | | 45 |
| 1.2.3 | | Service Options | | 45 |
| 1.2.4 | | Factory Options Descriptions | | 46 |
| 1.2.5 | | Extended Scope Equipment Options Descriptions | | 48 |
| 1.2.6 | | Extended Scope Equipment and Service Options Descriptions | | 48 |
| 1.3 | | Limits of Seller Scope & Exclusions | | 50 |
| 1.3.1 | | Limits of Seller Scope | | 50 |
| 1.3.2 | | Exclusions | | 51 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page v
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| 1.3.3 | | Codes and Standards | | 52 |
| 1.4 | | Design Criteria | | 55 |
Attachment 3 | Payment Schedule | | 56 |
Attachment 4 | Schedule of Options | | 57 |
Attachment 5 | Termination Schedule | | 58 |
Attachment 6 | Lien Waiver Form | | 59 |
Attachment 7 | Scheduled RTS Date(s) | | 60 |
Attachment 8 | Test Procedures and Protocol | | 61 |
Attachment 9 | Stamped Guarantee Sheet | | 62 |
Attachment 10 | Seller Equal Employment Opportunity Certificate | | 63 |
Attachment 11 | Typical Document List and Schedule | | 64 |
Attachment 12 | Special Conditions for On-site Services | | 68 |
Attachment 13 | Special Conditions for Training Services | | 72 |
Attachment 14 | GE Parent Company Guarantee Template | | 75 |
Attachment 15 | TYPICAL Spare Parts Lists | | 78 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page vi
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
Attachment 16 | GE Specifications | | 79 |
Attachment 17 | GE 2008 Field Service Rates | | 80 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page vii
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
THIS AGREEMENT (“Contract”) is entered into as of the Effective Date by and between:
GE PACKAGED POWER, INC., a Delaware corporation, having a principal place of business at 1333 West Loop South, Houston, Texas 77027 USA (the “Seller”); and MMC Energy, Inc., a New York corporation, having a principal place of business at 26 Broadway, Suite 960, NY, NY, 10004 (the “Purchaser”).
The Purchaser and the Seller are referred to herein individually as a “Party” and collectively as the “Parties”.
Recitals
WHEREAS, the Seller is engaged in the business of manufacturing and delivering various kinds of power plant equipment and of providing services and training in support of the installation and use thereof; and
WHEREAS, the Purchaser desires to purchase, and the Seller desires to sell the Equipment, together with certain installation support and training Services in connection with Purchaser’s Project located at 3497 Main St, Chula Vista, CA, all subject to the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual promises stated herein, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Defined terms are set forth in Attachment 1 to this Contract.
The Seller shall manufacture and deliver the Equipment and perform the associated Services as more fully described in Attachment 2, subject to the terms and conditions as set forth in this Contract. The Equipment includes two (2) LM6000PC classic Units and associated skids and auxiliary equipment as listed in Article 3 below.
The Purchaser shall pay to the Seller the following “Contract Price” in consideration of the Equipment and Services (except Technical Advisory Services which shall be priced accordingly to Attachment 12, and transportation which shall be priced according to Article 7.6 below):
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
Page 1
GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
Description | | Price EACH (USD) | | QTY | | EXT Price (USD) | |
| | | | | | | | |
| Gas Turbine Generator Set with: | | $ | 14,910,000. | | | 2 | | $ | 29,820,000. | |
| | | | | | | | | | | |
Option A SPRINT® Power Augmentation | | | | | | | | | | |
| | | | | | | | | | | |
Option B NOx Control - Water Injection System | | | | | | | | | | |
| | | | | | | | | | | |
| Option C Inlet Air Cooling - Evaporative Cooling | | $ | 402,580. | | | 2 | | $ | 805,160. | |
| | | | | | | | | | | |
Option D Lube Oil Cooler - Fin/FanNOTE 1 | | $ | 44,920. | | | 2 | | $ | 89,840. | |
| | | | | | | | | | | |
| Option H DC Backup Lighting | | $ | 18,770. | | | 2 | | $ | 37,540. | |
| | | | | | | | | | | |
| Auxiliary Skid Enclosure | | $ | 125,000. | | | 2 | | $ | 250,000. | |
NOTE 1: Pricing shown is the ADDER to substitute the fin/fan lube oil cooler in place of the standard shell and tube cooler.
The above Contract Price includes all options known and exercised at the Contract Effective Date. The Contract Price shall be adjusted as necessary to take into account:
| (i.) | Change Orders, including those related to the exercise of Options (as defined in Article 4) that may be exercised after the Contract Effective Date, and |
| (ii.) | Other adjustments specifically provided for in this Contract. Payment shall be made in accordance with the Payment Schedule set forth in Attachment 3 and in accordance with the payment terms and conditions set forth in Article 5 of this Contract. |
Estimated Prices shown below for Technical Supervision are INDICATIVE ONLY and provided for reference based on scope described in Attachment 2 under Option AAA and on current effective rates (see Attachment 17). Actual costs to be billed based on rates in effect at time of service.
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
Description | INDICATIVE Estimated Price |
Option AAA Technical Supervision (2-Unit Site) | $745,700. |
The Purchaser shall have the right to exercise options to purchase the additional Equipment or Services which have been previously and specifically quoted to Purchaser and which are described in the Attachment 4, within the times and at the prices therein stated. If any Option is exercised in writing prior to the option exercise deadline(s) set forth in Attachment 4, the Contract Price will be automatically adjusted as set forth in the Attachment 4 and the associated Payment Schedule and RTS Schedule shall be set forth in a mutually executed Change Order.
Payments shall be made in accordance with the Payment Schedule set forth in Attachment 3 hereto. Payments shall be remitted via wire transfer in compliance with the wire transfer instructions provided on each invoice. Late payments shall be subject to an interest charge equal to two percent in excess of the prime rate as published in the Wall Street Journal, calculated from the payment due date to the date upon which the payment is actually received by the Seller.
| | 5.2 | Effect of Changes in Contract Price |
If any adjustment results in an increase to the Contract Price, Purchaser shall pay for the increase in accordance with the corresponding invoice submitted by Seller. If any adjustment results in a decrease in the Contract Price, payments previously made shall be retained by the Seller and will be applied to subsequent payments as they become due.
Seller shall not be responsible for backcharges or field modifications performed by Purchaser unless Seller authorizes such charges in writing prior to the incurrence thereof and Purchaser specifically waives any right of set-off relating to such charges. Upon written notification from Purchaser, Seller shall respond within five (5) business days with approval of the proposed modifications or with a plan for the review of the proposed modifications. Seller shall not unnecessarily withhold approval of said field modifications or unnecessarily delay the review process. Any claim or set-off for backcharges shall be accompanied by a copy of such written authorization.
In no event shall Purchaser offset any amounts due under this Contract by amounts that may be due Purchaser from Seller or any of its Affiliates under any other agreement, judgment or order.
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
If requested by Seller at any time, Purchaser will demonstrate its financial capability to continue to carry out its obligations under this Contract. This demonstration may require that Purchaser furnish adequate payment security (which may include a letter of credit, parent guaranty or surety bond in a form and amount reasonably acceptable to Seller).
| Article 6 | Termination by Purchaser for Convenience |
The Purchaser shall have the right to terminate this Contract, at any time for its convenience, and this termination for convenience shall be effective upon:
| (i.) | Receipt by the Seller of written notice of termination |
| (ii.) | Receipt by the Seller of termination charges in accordance with the Termination Schedule attached to this Contract as Attachment 5. If Purchaser’s payment of the termination charges occurs after Seller receives Purchaser’s termination notice, Seller shall have the right to suspend performance upon receipt of the termination notice and await the payment of termination charges without penalty to Seller. Termination for Cause is addressed in Article 23 of this Contract. |
| Article 7 | Title Transfer, Delivery, Risk of Loss, Shipment to Storage |
Title to each item of Equipment or materials to be shipped from within the United States to a Site within the United States shall pass to the Purchaser when the Seller issues its Notice of RTS indicating that the Equipment is available for shipment from the relevant warehouse or factory. Title to the Equipment or materials to be shipped from a country other than the United States to a Site within the United States shall pass to the Purchaser at the port of export immediately after the Equipment or materials have been cleared for export. Title to Services shall pass to the Purchaser as performed. This Contract assumes that the Site will be located in the United States. In the event that, for any reason, the Buyer proposes to use the Equipment at a Site located outside of the United States, Seller may request that the Parties enter into a written amendment of this Contract allowing for high seas title transfer.
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
Prior to remittance of Purchaser’s final payment for the Equipment or Services, Purchaser will request that Seller issue a final (one-time) lien waiver in the form of Attachment 6 to this Contract.
| | 7.3 | Delivery and Delivery Point |
If Purchaser does not elect to use transportation service described in Article 7.6 below, Seller shall accomplish Delivery of the Equipment to Purchaser at the relevant manufacturing facility or warehouse upon Notice of RTS (the “Delivery Point”). Terms of Delivery of the Seller Supplied equipment will be EX-Works, relevant warehouse or manufacturer’s facility (EXW as per Incoterms 2000).
If Purchaser elects to use the transportation service described in Article 7.6 below, the Delivery Point instead shall be defined to be the Purchaser’s Site, and Delivery shall be deemed to have been accomplished by Seller upon arrival of the transport carrier at the Site but prior to unloading (which shall be the responsibility of Purchaser). If this Option is selected, terms of Delivery of the Seller Supplied equipment will be Cost and Insurance Paid to Owner’s jobsite (CIP as per Incoterms 2000). The Parties recognize that, in either case, Delivery may be deemed to have occurred in the event of a storage situation as set forth in Article 7.5 below.
| | 7.4 | Passage of Risk of Loss |
Seller shall remain responsible for risk of loss or damage to the Equipment and materials incorporated therein until delivered to the Delivery Point (as defined above, depending upon whether Purchaser elects to use the transportation service described in Article 7.6 below or make its own transportation arrangements). If, however, Purchaser is unable to accept the Equipment upon Seller’s Notice of RTS and a storage situation is triggered in accordance with Article 7.5 below, Seller shall retain risk of loss for the Equipment during the storage period only if Seller is directly responsible for storage.
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
If any part of the Equipment cannot be shipped to the Purchaser when ready due to any cause not attributable to the Seller, the Seller may ship such Equipment to storage. If the Equipment is placed in storage, including storage at the facility where it is manufactured, the following conditions shall apply:
| | (i.) | Title and risk of loss (including responsibility for insurance coverage) shall thereupon pass to the Purchaser if it had not already passed; |
| | (ii.) | Any amounts otherwise payable to the Seller upon Delivery or title transfer shall be payable upon presentation of the Seller’s invoice(s) and certification of cause for storage; |
| | (iii.) | All expenses incurred by the Seller, such as for preparation for and placement into storage, handling, inspection, preservation, insurance, storage, removal charges and any taxes shall be payable on a monthly basis by the Purchaser upon submission of the Seller’s invoice(s); |
| | (iv.) | The Services provided herein shall be subsequently changed to the rate prevailing at the time of actual use and the Purchaser shall pay the net increase; |
| | (v.) | Seller shall be deemed to have accomplished Delivery of the Equipment per Article 7.3 above |
| | (vi.) | If Purchaser has elected to use the transportation services described in Article 7.6 below, upon Purchaser’s notice of its ability to accept Delivery of the Equipment and payment of all amounts due hereunder, the Seller shall resume transportation of the Equipment to the Delivery Point. |
| | 7.6 | Seller’s Transportation Service |
As of the Effective Date of this Contract, Purchaser has elected this Option. Purchaser shall pay Seller for:
| | (i.) | All fees and expenses including, but not limited to, those covering preparation of consular documents, freight, storage and warehouse-to-warehouse insurance (collectively, “Transport Costs”) plus |
| | (ii.) | A shipping management fee in the amount of either: |
| | a.) | 10% of all Transport Costs actually incurred (if Seller receives Purchaser’s election of this Option at least ninety (90) days’ prior to the first Scheduled RTS Date) or |
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| | b.) | 15% of all Transport Costs actually incurred (if Seller receives Purchaser’s election of this Option less than ninety (90) days prior to the first Scheduled RTS Date). |
These costs shall be invoiced separately. In performing such service, Seller will comply with any reasonable instructions of Purchaser or, in the absence thereof, shall act according to its best judgment. In acting on Purchaser’s behalf hereunder, Seller shall retain risk of loss for the Equipment during transportation, subject to Article 24 of this Contract, but shall not be liable or otherwise held responsible under this Article or this Contract for any delay in performance of the transportation service or arrival of the Equipment. Seller’s sole and exclusive schedule obligations are set forth in Article 8. Claims against Seller for shortages or errors in shipment must be made within 30 days after receipt of the Equipment by Purchaser and be accompanied by necessary documentation to substantiate the claim. Purchaser may not return Equipment without first receiving written permission from Seller and agreeing with Seller on the terms to cover such return.
The Seller shall provide the Notice of RTS for each Major Component by the date(s) set forth in the Scheduled RTS Date(s) schedule attached to this Contract as Attachment 7 (each, a "Scheduled RTS Date"). Partial shipments will be allowed.
If any Major Component is not ready to ship on or before the relevant Scheduled RTS Date(s) for reasons attributable to the Seller and not excused elsewhere in this Contract, the Seller shall pay as liquidated damages, and not as a penalty, a sum calculated in accordance with the table below, until actual Notice of RTS for such Major Component:
Delay Liquidated Damage Period | Amount of Delay Liquidated Damages |
Delay periods below, expiring on the earlier of the date upon which (a) the delay liquidated damages cap is reached or (b) Seller delivers Notice of RTS | Rate per day per delayed Major Component (not including separately shipped components) during the Delay Liquidated Damage Period |
Days 1-15 | $5,000 |
Days 16-30 | $10,000 |
Days 31+ | $20,000 |
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
No grace period will apply to Liquidated Damages for equipment that is not delivered in accordance with the Scheduled RTS Dates in Attachment 7 unless mutually agreed by Buyer and Seller. Liquidated damage computations shall disregard any accessory to the Major Component that is shipped separately. For purposes of computation of Liquidated Damages, Major Components shall be defined as follows:
Combustion Turbine
Combustion Turbine Enclosure
Turbine Control Panel
Generator
Generator Enclosure
Sprint Skid
Auxiliary Skid
Water Injection Skid
Fin-Fan Cooler Skid
Inlet Air Housing and associated components
Minor Components that make up the remainder of the material shipped direct, less small minor items, shall be delivered within 30 days after the Major Components ship date. Minor Component ship dates and deliveries are not subject to Delay Liquidated Damages, as part of this Agreement. Minor Component Equipment shall be defined as follows:
Skid Interconnection piping and tubing
CO2 bottle fire protection skid
Equipment that is not considered integral to the operation of the Unit, such as miscellaneous components that are typically shipped via box (fasteners, filters, etc.)
The Seller's liability hereunder for delay liquidated damages shall not exceed seven and one half percent (7.5%) of the Unit Price for the Unit giving rise to such claim. The liquidated damages for delay in Notice of RTS shall be the Purchaser’s exclusive remedy for and the Seller’s sole obligation arising out of delayed Equipment.
Notwithstanding the foregoing, the Seller shall have no liability to the Purchaser for liquidated damages for delay with respect to any Unit unless, in the reasonable discretion of Purchaser, the delay in providing Notice of RTS for such Unit is the direct cause of an actual delay in the initial commercial operation of the Project.
If any drawing set to which drawing delay liquidated damages apply, excluding as-built drawings, is not submitted on or before the relevant submittal date indicated in Attachment 11 for reasons attributable to the Seller and not excused elsewhere in this Contract, the Seller shall pay as liquidated damages, and not as a penalty, $500 per day of delay per drawing set, until actual submittal of such drawing set. The Seller's liability hereunder for drawing delay liquidated damages shall not exceed $150,000. The liquidated damages for delay in delivery of drawings shall be the Purchaser's exclusive remedy for and the Seller's sole obligation arising out of delayed delivery of the drawings or data, excluding as-built drawings.
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| Article 9 | Performance Guarantees |
When tested in accordance with Attachment 8 and subject to the conditions specified in Attachment 8 and Attachment 9, the Seller guarantees that the Equipment will achieve the output, heat rate and NOx emissions level set forth in the Stamped Guarantee Sheet attached hereto as Attachment 9. If the average performance of all Unit(s) fails to achieve the output or heat rate Performance Guarantees after the final performance test provided for in Article 11 below, the Seller shall pay to the Purchaser as liquidated damages, and not as a penalty, a sum calculated in accordance with the table below for each Unit that fails to achieve the output or heat rate Performance Guarantees:
Criterion | Test Measurement Point | Liquidated Damages |
Output | At Generator Terminals | $1,000 for each kW below the applicable Performance Guarantee |
Heat Rate | At Turbine Fuel Meter | $5,000 for each btu/kWh (LHV) above the applicable Performance Guarantee |
NOx, CO, VOC Emissions | At Turbine Exhaust Flange | Liquidated damages not applicable. In lieu of any damages, Seller has a one-time duty to adjust and repair the Unit until the Performance Guarantee for NOx, CO, and VOC is met. (Must Meet Remedy). |
The Seller's aggregate liability hereunder for liquidated damages for failure to achieve the output Performance Guarantee shall not exceed seven and one half percent (7.5%) of the Unit Price of the Unit(s) giving rise to such claim. The Seller’s aggregate liability hereunder for liquidated damages for failure to achieve the heat rate Performance Guarantee shall not exceed seven and one half percent (7.5%) of the Unit Price of the Unit(s) giving rise to such claim. The liquidated damages for failure to achieve the Performance Guarantees and the corrective action to be taken by the Seller for deficiencies in performance shall be the Purchaser’s exclusive remedies for and the Seller’s sole obligations arising out of such deficiencies.
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
In addition to the Performance Guarantees for output and heat rate, when tested in accordance with Attachment 8 and subject to the conditions set forth in Attachment 8 and Attachment 9, the Seller guarantees that each Unit will meet the Minimum Performance Criteria. If when first so tested, the Unit fails to meet the Minimum Performance Criteria, in lieu of liquidated damages, the Seller shall have a one-time duty to adjust and repair the Unit until the Minimum Performance Criteria is met (Must Meet Remedy).
Notwithstanding the foregoing, the Seller shall have no liability to the Purchaser for liquidated damages for failure to achieve the Performance Guarantees with respect to any Unit unless the Purchaser suffers economic harm as a result of the failure of such Unit to achieve the Performance Guarantees.
If the average performance of all Unit(s) exceeds the Performance Guarantees for either output or heat rate, then the Purchaser shall pay to the Seller as a bonus an amount calculated in accordance with the table below:
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
Criterion | Bonus |
Output | 50% of the Liquidated Damage rate for output for each kW below the applicable Performance Guarantee for output |
Heat Rate | 50% of the Liquidated Damage rate for heat rate for each btu/kWh (LHV) above the applicable Performance Guarantee for heat rate |
For avoidance of doubt, liquidated damages and/or bonus for output and heat rate shall be calculated on an individual Unit basis at each respective Site only, and not in the aggregate.
| Article 10 | Aggregate Limitation on Liquidated Damages |
The Seller's overall aggregate liability hereunder for all forms of liquidated damages provided for in this Contract shall not exceed fifteen percent (15%) of the Unit Price of the Unit(s) giving rise to such claims. The Parties agree that the amount of liquidated damages set forth above are reasonable in light of the anticipated harm caused by the breach of duty related thereto and the difficulties of proof of loss and inconvenience or non-feasibility of obtaining any adequate remedy and the Parties are stopped from contesting the validity or enforceability of such liquidated damages.
| Article 11 | Performance Guarantee Testing |
The performance tests shall be arranged and conducted by the Purchaser or its designee unless specifically stated below.
The tests for output and heat rate shall be performed using the testing procedures and protocol set forth in Attachment 8 and subject to conditions set forth in Attachment 8 and Attachment 9, and shall be conducted immediately following the start-up period after the Seller has conducted final check-out of the Unit. If the output and heat rate tests are not conducted within the first 200 fired hours, degradation shall be applied in accordance with Article 11.6.
MMC Energy/ Chula Vista / Revision 6 / 25 January 2008
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
If required, Purchaser or its designee shall conduct the emissions tests at the engine exhaust. Purchaser shall provide Seller a copy of the initial compliance test report, as submitted to the relevant air quality management agency.
If when first tested, the Unit(s) does (do) not meet the heat rate or output Performance Guarantees or the NOx and CO emissions guarantees, the Seller shall be afforded sixty (60) calendar days, plus Delay Days if any, of access to the Unit(s) to undertake corrective action. During this period, Seller’s access to the Equipment will not impact dispatch or revenue opportunities and all Seller activities shall be coordinated with the Purchaser. If the Seller requests access to the machine to correct the non-compliance and the Purchaser does not provide access to the machine due to revenue opportunities or any other reason as may be required by the Purchaser, the Seller shall be afforded, on a day per day basis, the number of days equal to the delay which shall be defined as a Delay Day. The Unit(s) will be re-tested when the Seller so requests, but in any event at the end of this cure period. The degradation correction provided in section 11.6 below will be in effect during the hours of Purchaser operation.
For the purpose of the cure period for VOC emissions, if when first tested, the Unit(s) does (do) not meet the VOC emissions guarantee, the Seller shall be afforded sixty (60) calendar days, plus Delay Days if any, of access to the Unit(s) to undertake corrective action. During this period, Seller’s access to the Equipment will not impact dispatch or revenue opportunities and all Seller activities shall be coordinated with the Purchaser. If the Seller requests access to the machine to correct the non-compliance and the Purchaser does not provide access to the machine due to revenue opportunities or any other reason as may be required by the Purchaser, the Seller shall be afforded, on a day per day basis, the number of days equal to the delay which shall be defined as a Delay Day. The Unit(s) will be re-tested when the Seller so requests, but in any event at the end of this cure period.
| | 11.5 | Cost of Tests and Re-Tests |
The Purchaser shall perform the initial performance tests at its cost. The Seller shall be notified of, and shall be represented at all such tests. If a re-test is required and to the extent the Seller was the cause of such re-test, the actual cost of the retest will be borne by the Seller. The actual cost of the re-test shall mean:
| | (i.) | Cost of special test personnel or special operating personnel provided by the Purchaser |
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| | (ii.) | Cost of special instrumentation and equipment (including rental cost) and including required calibration of the instrumentation |
| | (iii.) | The Seller’s personnel cost, but in no event whatsoever will the Seller be responsible for the cost of fuel or other consumables, normal operating personnel, or any other such cost typically borne by the Purchaser. |
In conducting the initial performance test or re-tests, the performance of the Unit shall not be adjusted for degradation until such Unit has operated in excess of two hundred (200) hours. The Seller’s degradation curve shall be used to determine the adjustment for Unit output and Unit heat rate.
| Article 12 | Inspection and Factory Tests |
| | 12.1 | Inspections and Tests at Seller’s Facilities |
Upon the Purchaser’s request and with the Seller’s prior written consent, the Purchaser’s inspector shall be provided access to the Seller’s facilities to obtain information on production progress and make inspections. Such access will be limited to areas concerned with the Equipment and shall not include restricted areas where work of a proprietary nature is being conducted. The Seller shall, in its sole discretion, determine the extent of the Purchaser’s access to the Seller’s facilities and the extent of factory testing to be conducted on the Equipment during normal business hours.
| | 12.2 | Inspections and Tests at Suppliers’ Facilities |
Subject to the conditions set forth in the foregoing paragraph, the Seller will make reasonable efforts to obtain for the Purchaser’s access to its Suppliers’ facilities for the purposes described in the paragraph above.
| | 12.3 | Inspection Not Acceptance |
The Purchaser’s inspection of the Equipment or its failure to inspect does not relieve the Seller of its obligation to fulfill the requirements of this Contract, nor is it to be construed as acceptance by the Purchaser.
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| Article 13 | Warranty Period |
The Seller shall warrant the Equipment and the Services on the terms set forth in Article 14 below for twelve (12) months following the date fuel is first combusted in the Unit at the Site, 4,000 operating hours or eighteen (18) months following the date of Seller’s Notice of RTS, whichever period shall first expire (the “Warranty Period”), provided, however, that the warranty applicable to the Training Services shall be solely as set forth in Article 14 below.
The Seller warrants to the Purchaser that:
| | (i.) | The Equipment to be delivered hereunder: |
| | a.) | shall be fit for the purpose of generating electric power when operated in accordance with the Seller’s specific written operation instructions and, in the absence thereof, in accordance with generally accepted operation practices of the electric power producing industry and |
| | b.) | shall be free from defects in material, workmanship and title; |
| | (ii.) | The Services shall be performed in a competent, diligent manner. |
If the Equipment delivered or Services performed hereunder do not meet the above warranties during the Warranty Period set forth in Article 13 of this Contract, the Purchaser shall promptly notify the Seller in writing and make the Equipment available promptly for correction. The Seller shall thereupon correct any defect, at its option by:
| | (i.) | Reperforming the defective Services |
| | (ii.) | Repairing the defective part of the Equipment |
| | (iii.) | Providing necessary replacement parts, including shipment of parts to Owner’s site |
Purchaser shall, at Seller’s option, return any defective part that is replaced by Seller at Seller’s expense to Seller’s facility within thirty (30) days from the date of written instruction by Seller. The Seller shall provide technical advisory Services reasonably necessary for any such repair of the Equipment, but the Seller shall not be responsible for:
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| | (iv.) | Removal or replacement of structures or other parts of the facility and |
| | (v.) | Site labor for installation of parts or components. |
If a defect in the Equipment or part thereof identified during the warranty period cannot be corrected by the Seller’s reasonable efforts, upon mutual agreement by both Parties, the Parties will negotiate an equitable adjustment in price with respect to such Equipment or part thereof. The condition of any tests shall be mutually agreed upon and the Seller shall be notified of and may be represented at, all tests that may be made
| | 14.3 | Warranty on Remedial Work |
Any re-performed service or repaired or replacement part furnished under this warranty shall carry warranties on the same terms as set forth above in Article 13.
| | (i.) | The remainder of the original Warranty Period or |
| | (ii.) | Six (6) months from the date of such re-performance, repair or replacement. |
In any event the repair/replacement warranty period and the Seller’s responsibilities set forth herein for such repaired or replacement part shall end no later than six (6) months after expiration of the original Warranty Period.
The Seller does not warrant the Equipment or any repaired or replacement parts against normal wear and tear, including that due to environment or operation, including excessive operation at peak capability, frequent starting, type of fuel, detrimental air inlet conditions or erosion, corrosion or material deposits from fluids. The warranties and remedies set forth herein are further conditioned upon:
| | (i.) | The proper storage, installation, operation, and maintenance of the Equipment and conformance with the operation instruction manuals (including revisions thereto) provided by the Seller and/or its Subcontractors or Suppliers, as applicable (including any required warranty preservation services in the event of long term storage) and |
| | (ii.) | Repair or modification pursuant to the Seller’s instructions or approval. |
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
The Purchaser shall keep proper records of operation and maintenance during the Warranty Period. These records shall be kept in the form of logsheets and copies shall be submitted to the Seller upon its request.
| | 14.5 | Exclusive Remedies and Warranties |
Except for:
| | (i.) | The performance liquidated damages for output and heat rate and |
| | (ii.) | If applicable, any one-time Must Meet Remedy set forth in Article 9, the preceding paragraphs of this Article set forth the sole and exclusive remedies for all claims based on failure of or defect in the Equipment and Services provided under this Contract, whether the failure or defect arises before or during the Warranty Period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. |
The foregoing warranties are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
The Contract Price includes applicable corporate and individual taxes that are measured by net income or profit and are imposed by any governmental authority of any country on the Seller, its employees, Subcontractors or Suppliers due to the execution or performance of this Contract.
The Contract Price excludes any sales, use, excise, value added, gross receipts, consumption, franchise, property, or similar taxes imposed by any federal, state, or local government. All such taxes shall be for the account of and shall be paid directly by the Purchaser. If Purchaser is exempt from any such taxes, Purchaser will provide Seller adequate documentation of exemption in accordance with the taxing authority requirements prior to title transfer. If Purchaser is exempt from any Purchaser Taxes, Purchaser will provide Seller adequate documentation of exemption in accordance with the taxing authority regulations at least sixty (60) days prior to the Scheduled RTS Date of the Equipment.
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GE AEPU.S. Contract Form Rev. 1 (February 10, 2003) ; JEA Rev Dec. 5, 2005
Contract For U.S. Based Sale of Equipment and Services
| Article 16 | EEO and Compliance with Laws |
The Seller shall perform its obligations hereunder in compliance with the legal requirements set forth in the Equal Employment Opportunity Certificate attached hereto as Attachment 10.
| Article 17 | Pricing and Scope Assumptions |
| | 17.1 | Original Equipment Definition |
The original Equipment definition is established in Attachment 2.
The Contract Price is based on the engineering and manufacture of the Equipment in accordance with the Seller’s design criteria, manufacturing processes and procedures and quality assurance programs, so as to comply with:
| | (i.) | Those portions of the codes and standards identified in Attachment 2 which the Seller has deemed applicable to the Equipment (“Codes and Standards”) |
| | (ii.) | The applicable United States Federal Laws in effect as of the Notice to Proceed (“Federal Laws”) |
| | (iii.) | The ambient site conditions (including temperature, humidity, elevation and any seismic or wind-loading requirements) identified by Purchaser prior to Notice to Proceed and set forth in Attachment 2 (“Ambient Site Conditions”) |
| | (iv.) | Those site-specific environmental requirements (including those governing emissions and noise) identified by Purchaser prior to Notice to Proceed and set forth in Attachment 2 (“Site Requirements”) |
| | (v.) | Those State and Local Laws identified by Purchaser in Attachment 2. |
| | 17.3 | Changes to Codes and Standards or to Federal Laws |
If any change to the Codes and Standards or any change in Federal Law requires a change to the Equipment, the Seller shall be entitled to a Change Order that includes equitable adjustments to the Contract Price, Scheduled RTS Date(s) and other provisions of the Contract that are impacted. In addition, during the manufacturing process at its discretion, Seller may make minor changes to the Equipment without entering into a Change Order, provided that such minor changes do not alter the Contract Price or Scheduled RTS Date(s).
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| | 17.4 | Other Changes to Equipment Scope or Configuration, State or Local Laws, Ambient Site Conditions and Site Requirements |
Except as set forth in this Article, changes to the Equipment and Services can be made only as provided in Article 18.
| | 17.5 | Order Definition Meeting |
Unless otherwise agreed, the Seller will schedule an Order Definition Meeting within thirty (30) days of execution of this Contract. The Seller will advise the Purchaser of the final drawing delivery schedule during the Order Definition Meeting.
No later than the date of the Order Definition Meeting, the Purchaser will appoint an individual person as its Project Manager, will authorize that person to act on its behalf and will identify that person to the Seller. The Purchaser hereby represents to the Seller that the person so identified will be authorized to act on behalf of the Purchaser in matters connected with this Contract or the Project.
If the Purchaser fails to provide any information required by this Article within the times herein specified, or if the Parties are not able to reach agreement as to the substance of a Change Order to which the Seller is entitled pursuant to this Article by the conclusion of the Order Definition Meeting, the Seller will deliver the Equipment as originally described in Attachment 2.
Purchaser shall have sole responsibility for, and risk associated with, application for and maintenance of all permits, including but not limited to site-related, construction and environmental permits. The Seller shall provide reasonable assistance to the Purchaser in its endeavors relating to the permitting of the Site and cooperate by providing information for the purpose of obtaining the permits. In undertaking such assistance, the Seller shall not be obligated to incur out-of-pocket costs and expenses without reimbursement from the Purchaser.
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The Seller reserves the right in its discretion to obtain, source, subcontract, manufacture, fabricate and assemble the Equipment and any of its components and systems outside the United States or from non-domestic concerns, or both; it being understood that the quality standards and warranties of the Seller under the Contract shall be adhered to in all cases irrespective of source. Seller shall be responsible for those direct costs associated with its global sourcing and manufacturing activities that occur prior to title transfer to Purchaser.
| | 17.10 | Electronic Communication |
The Parties agree to use the Seller’s Customer Collaboration System as the primary medium for the storage and transmittal of drawings, specifications and project reports. The current Customer Collaboration System is Project Net. Selected individuals of the Purchaser and the Purchaser’s Engineer shall have access to Project Net such that drawings and documents can be accessed and downloaded at any time by either party. Registration instructions and link for access to Project Net by the Purchaser and the Purchaser’s Engineer shall be available within 10 working days following the conclusion of the Order Definition Meeting.
| | 18.1 | Purchaser-Initiated Changes |
The Purchaser shall have the right to request that the Seller consider changes to the Equipment or the Services, including modifications, alterations or additions. If the Purchaser wishes to request such a change, the Purchaser shall notify the Seller in writing. Within fifteen (15) days after receipt of such notice (unless otherwise extended by mutual agreement), the Seller shall advise the Purchaser of the feasibility of the requested change, and shall submit to the Purchaser a draft Change Order, unless the matter requires further investigation and research in which case Seller will provide an estimate of the time frame in which Seller will be able to submit a detailed response to Purchaser.
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| | 18.2 | Seller-Initiated Changes |
If the Seller wishes to propose a change, or if the Seller is entitled to a Change Order pursuant to the provisions of this Contract, the Seller shall submit to the Purchaser a draft Change Order.
| | 18.3 | Contents of Draft Change Order |
The draft Change Order shall include:
| | (i.) | A technical description of the proposed change in such detail as the Purchaser may reasonably require, |
| | (ii.) | A lump sum firm price adjustment (increase or decrease) in the Contract Price, if any, caused by the proposed change |
| | (iii.) | All potential effect(s), if any, on the Scheduled RTS Date(s), or any other schedule or date for performance by the Seller hereunder |
| | (iv.) | All potential effect(s), if any, on the Seller's ability to comply with any of its obligations hereunder, including the Seller's warranties and Performance Guarantees. |
| | 18.4 | Process for Concluding Change Order |
The Purchaser shall, within ten (10) days from the date of receipt of such information, either approve or disapprove the draft Change Order in writing or request additional time to consider the draft Change Order. If the Purchaser approves the Change Order, the Purchaser and the Seller shall then sign the Change Order that shall operate as an amendment to this Contract.
All changes under this contract shall be subject to mutual agreement, and no Change Order will be effective until signed by both Parties.
| | 18.6 | Changes to Equipment Not Practicable |
If the Seller determines that any change to the Equipment contemplated in the immediately preceding paragraphs is not practicable, the Seller will so notify the Purchaser and the Purchaser:
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| | (i.) | May terminate this Contract in accordance with Article 6 of this Contract. |
| | (ii.) | May direct completion without change. |
| Article 19 | Excusable Delays |
The Seller shall not have any liability or be considered to be in breach or default of its obligations under this Contract to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to:
| | (i) | Causes beyond its reasonable control; or |
| | (ii) | Acts of God, acts (or failures to act) of governmental authorities, fires, severe weather conditions, earthquakes, strikes or other labor disturbances, floods, war (declared or undeclared), epidemics, civil unrest, riots, delays or accidents in transportation and car or transporter shortages; or |
| | (iii) | Acts (or omissions) of the Purchaser including failure to promptly: |
| | (a.) | Provide the Seller with information and approvals necessary to permit the Seller to proceed with work immediately and without interruption, or |
| | (b.) | Comply with the terms of payment; or |
| | (iv) | Shipment to storage in accordance with Article 7.5 above. |
The Seller shall notify the Purchaser of any such delay and strive to mitigate the delay to the extent practicable. The Scheduled RTS Date(s) or other date of performance shall be extended for a period of time necessary to overcome the effect of such excusable delay. If the Seller is delayed by acts or omissions of the Purchaser, or by the prerequisite work of the Purchaser’s other contractors or suppliers, the Seller shall also be entitled to an equitable price adjustment.
The Seller agrees to indemnify and hold harmless the Purchaser from any rightful claim of any third party that any Equipment manufactured by the Seller and furnished hereunder infringes any United States registered patent. If the Purchaser notifies the Seller promptly of the receipt of any such claim, does not take any position adverse to the Seller regarding such claim and gives the Seller information, assistance and exclusive authority to settle and defend the claim, the Seller shall, at its own expense and option, either:
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| | (i.) | Settle or defend the claim or any suit or proceeding and pay all damages and costs awarded in it against the Purchaser, or |
| | (ii.) | Procure for the Purchaser the right to continue using the Equipment, or |
| | (iii.) | Modify the Equipment so that it becomes non-infringing, or |
| | (iv.) | Replace the Equipment with non-infringing Equipment; or |
| | (v.) | Remove the infringing product and refund the price. |
If, in any suit arising from such a claim, the continued use of the Equipment for the purpose intended is forbidden by any court of competent jurisdiction, the Seller shall at its option take one or more of the actions under (ii.), (iii.), (iv.), or (v.) above. The foregoing states the entire liability of the Seller for patent infringement of any Equipment.
The above paragraph shall not apply to:
| | (i.) | Any Equipment which is manufactured to the Purchaser’s design or |
| | (ii.) | The use of any equipment furnished under this Contract in conjunction with any other apparatus or material not furnished by Seller, the combined use of which in and of itself gives rise to a claim of infringement. |
As to any Equipment or use described in the preceding sentence, the Seller assumes no liability whosoever for patent infringement.
Article 21 | General Indemnity |
Subject to Article 24 the Seller agrees to indemnify and hold harmless the Purchaser from:
| | (i.) | Any physical damage to the property of third parties or |
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| | (ii.) | Injury to persons, including death, to the extent resulting directly from the negligence of the Seller or its officers, servants, agents, employees, and/or assigns while engaged in activities under this Contract. |
| | 21.2 | Purchaser’s Indemnity |
The Purchaser shall likewise indemnify and hold harmless the Seller from:
| | (i.) | Any physical damage to property of third parties or |
| | (ii.) | Injury to persons, including death, to the extent resulting directly from the negligence of the Purchaser, its officers, servants, agents, employees, and/or assigns while engaged in activities relating to this Contract. |
In the event such damage or injury is caused by the joint or concurrent negligence of the Seller and the Purchaser, the loss shall be borne by each Party in proportion to its negligence.
For purposes of this Article, “third parties” shall not include:
| | (i) | The Purchaser or the Owner; |
| | (ii) | The subsidiaries, parents, Affiliates, agents, successors or assigns of the Purchaser or the Owner, including any operation or maintenance contractor; or |
| | (a.) | With any equity interest in the foregoing entities, or |
| | (b.) | With a security interest of any nature in any such entity’s assets or property, or |
| | (c.) | Which claims or seeks to claim any of the rights, powers or privileges of the Purchaser or Owner under this Contract or claims or seeks to claim as a third party beneficiary of the Purchaser or Owner under this Contract. |
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| | 22.1 | Comprehensive General Liability |
The Seller shall furnish and maintain Comprehensive General Liability insurance with limits of not less than $1,000,000 per occurrence for bodily injury or death, and $1,000,000 per occurrence property damage plus Contractual Liability coverage.
The Seller shall furnish and maintain automobile liability insurance with limits of not less than $1,000,000 for each person, $1,000,000 for each occurrence and $1,000,000 for property damages.
| | 22.3 | Worker’s Compensation |
The Seller will comply with all federal and state workers compensation or similar laws that might impose any charge or liability on the Purchaser in connection with this Contract.
| | 22.4 | Certificates of Insurance |
Upon written request by the Purchaser, the Seller shall furnish the Purchaser with certificates of insurance evidencing that insurance has been provided to meet the above requirements. Such certificates shall state that no material change or cancellation can be effected without thirty (30) days prior written notice to the Purchaser.
| | 22.5 | Purchaser’s Insurance |
The Seller shall be included as an additional insured on the Purchaser’s or Owner’s All Risk/Builder's Risk Insurance Policy, which will include a waiver of rights of subrogation against the Seller. The deductible under this policy shall be for Purchaser’s account.
| Article 23 | Termination for Cause; Suspension |
| | 23.1 | Grounds for Termination by Purchaser |
The Purchaser shall have the right to terminate this Contract for cause in the event that the Seller:
| | (i) | Becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; or |
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| | (ii) | Substantially breaches and fails to comply or perform its material obligations hereunder (but only with respect to a material obligation for which this Contract does not provide exclusive remedies), provided that: |
| | (a.) | The Purchaser shall first have provided the Seller with written notice of the nature of such breach and of the Purchaser’s intention to terminate the Contract as a result of such breach, and |
| | (b.) | The Seller shall have failed within thirty (30) days after receipt of such notice (or such extended period as is considered reasonable by the Parties) either |
| | i. | To commence to cure such breach and diligently thereafter to pursue such cure, or |
| | ii. | To provide reasonable evidence that no such breach has occurred. |
| | 23.2 | Remedy in the Event of Termination by Purchaser |
If the Purchaser terminates this Contract as provided above, the Purchaser shall pay the Seller that portion of the Contract Price allocable to the Equipment title transferred or Services performed prior to the termination notice. If the payments received by the Seller as of the date of such termination are in excess of such portion of the Contract Price, the Seller shall return the excess of such payments to the Purchaser. To the extent that Purchaser has paid for Equipment that has not yet been title transferred to Purchaser as of the date of the termination notice, Purchaser may elect to either:
| | (i.) | Continue to receive delivery of the Equipment upon full and complete payment for the Equipment or |
| | (ii.) | Forego delivery and title transfer of the Equipment in exchange for a refund of the portion of the Contract Price allocable to the Equipment that has not been title transferred to Purchaser (in which case Seller shall retain title to such Equipment). |
| | 23.3 | Suspension by Purchaser |
It is expressly agreed that the Purchaser shall have no right to suspend manufacture of the Equipment except to the extent that Purchaser elects to exercise its rights hereunder to terminate this Contract for convenience or Seller default.
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| | 23.4 | Grounds for Termination by Seller |
The Seller shall have the right to terminate this Contract for cause in the event that the Purchaser:
| | (i) | Becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; or |
| | (ii) | Fails to make any payment when due or to fulfill any payment conditions as set forth in the Contract, provided that: |
| | (a.) | The Seller shall first have provided the Purchaser with written notice of the nature of such failure and of the Seller’s intention to terminate the Contract as a result of such failure, and |
| | (b.) | The Purchaser shall have failed within thirty days after receipt of such notice to correct such failure. |
| | 23.5 | Remedy in the Event of Termination by Seller |
If the Seller terminates this Contract as provided above, the Purchaser shall pay to the Seller the charges set forth in the Termination Schedule.
The Seller shall have the right to suspend all work on the Equipment or Services immediately upon the failure of the Purchaser to make any payment when due. The Seller shall further have the right to suspend any shipment of the Equipment if all payments due prior to the applicable Scheduled RTS Date have not been made. Any cost incurred by the Seller in accordance with any such suspension (including storage costs) shall be payable by the Purchaser upon submission of the Seller’s invoice(s). Performance of the Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of such suspension, except that Seller’s suspension shall not be deemed to extend the Warranty Period hereunder.
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| Article 24 | Limitation of Liability |
The total liability of the Seller, on all claims of any kind, whether in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, arising out of the performance or breach of the Contract or use of any Equipment shall not exceed the portion of the Contract Price allocable to the portion of the Equipment giving rise to the claim. All liability under this Contract shall terminate two (2) years after the Notice of RTS for the last Unit giving rise to the claim.
| | 24.2 | Exclusion of Consequential Damages |
In no event, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, shall the Seller or its Subcontractors or Suppliers be liable for loss of profit or revenues, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities, services or replacement power, downtime costs, fines or penalties charged to Purchaser for failure to meet permits, claims of the Purchaser’s and/or Owner’s customers for such damages, or for any special, consequential, incidental, indirect or exemplary damages and the Purchaser shall indemnify the Seller against such claims of the Purchaser’s and/or Owner’s customers.
| | 24.3 | Subsequent Purchasers |
The Purchaser covenants and agrees that, in the event it seeks to transfer or assign the Equipment and Services to any other third party, it shall, as a condition to such transfer or assignment, cause such third party to acknowledge and accept the restrictions and limitations afforded under this Contract for the benefit of the Seller and its Subcontractors and Suppliers, including the provisions of this Article. If the Purchaser fails to obtain acknowledgement from the subsequent purchasers, the Purchaser shall indemnify, defend and hold the Seller harmless from and against any and all claims in excess of these restrictions and limitations made by any subsequent purchasers of the Equipment or Services against the Seller for loss or damage arising out of the performance or non-performance of the Equipment or Services provided under this Contract.
If the Seller furnishes the Purchaser with advice or assistance concerning any products, systems or work which is not required pursuant to this Contract, the furnishing of such advice or assistance will not subject the Seller to any liability, whether in contract, warranty, indemnity, tort (including negligence), strict liability or otherwise.
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For the purposes of this Article, the term "Seller" shall mean the Seller, its Affiliates, Subcontractors and Suppliers of any tier, and their respective agents and employees, whether individually or collectively.
| | 24.6 | Limitations to Prevail |
The provisions of this Article shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising this Contract, except to the extent that such provisions further restrict the Seller's liability.
| Article 25 | Proprietary Information |
At the time of furnishing confidential or proprietary information, the Parties shall expressly designate by label, stamp, or other written communication that the information or documentation furnished is confidential. The receiving Party agrees:
| | (i.) | To treat such information as confidential, |
| | (ii.) | To restrict the use of such information to matters relating to performance of the Contract, and |
| | (iii.) | To restrict access to such information to its employees whose access is necessary in the implementation of the Contract. |
The receiving Party may release confidential Information to its agents, consultants and Affiliates (“Representatives”), provided that these Representatives:
| | (i.) | Are informed of the confidential and proprietary nature of the confidential information and agree to be bound by the same standard of care as the receiving Party, |
| | (ii.) | Have a need to know the confidential information, |
| | (iii.) | Limit their use of the confidential information solely to purposes related to the Project and |
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| | (iv.) | Are not competitors of Seller. |
Confidential information will not be reproduced without the other Party’s prior written consent, and all copies of written information will be returned upon request except to the extent that such information is to be retained by the receiving Party pursuant to the Contract.
The foregoing restrictions do not apply to information which is:
| | (i.) | Contained in a printed publication which was released to the public by the disclosing Party prior to the date of the Contract; |
| | (ii.) | Or becomes, publicly known otherwise than through a wrongful act of the receiving Party, its employees, or agents; |
| | (iii.) | In possession of the receiving Party, its employees, or agents prior to receipt from the disclosing Party, provided that the person or persons providing the same have not had access to the information; |
| | (iv.) | Furnished to others by the disclosing Party without restrictions similar to those herein on the right of the receiving party to use or disclose; |
| | (v.) | Approved in writing by the disclosing Party for disclosure by the receiving Party, its agents or employees to a third party or |
| | (vi.) | Provided to Purchaser’s financing party under notice and requirement of confidentiality. |
Upon receipt of a demand or request for the disclosure of confidential information, the receiving Party shall promptly notify the other Party and afford the Party an opportunity to seek a protective order or other appropriate form of security or remedy. In the event that the Parties fail to obtain a protective order or similar protection, the Party receiving the demand or request for disclosure of confidential information shall furnish only that portion of the confidential information that is legally required to be furnished and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be afforded the confidential information.
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| Article 26 | Assignment and Change in Control |
An Eligible Assignee is an:
| | (i.) | Affiliate of the Purchaser, or |
| | (ii.) | Engineering or construction contractor under contract with the Purchaser for the installation of the Equipment, provided that the Eligible Assignee offers Purchaser satisfactory evidence of its ability (both financial and otherwise) to fulfill the obligations of Purchaser hereunder. |
| | 26.2 | Purchaser’s Right to Assign to Eligible Assignees |
The Purchaser may once assign its rights and delegate its obligations under this Contract to an Eligible Assignee, provided that:
| | (i) | The Purchaser shall notify the Seller of its intent to assign no less than ten business days prior to the execution of any such assignment; |
| | (ii) | The Purchaser shall either: |
| | (a.) | Guarantee the obligations of the assignee by executing a guaranty in a form acceptable to Seller or |
| | (b.) | Retain its obligations under any payment, indemnity and bonus provisions of the Contract; |
| | (iii) | The first assignee may not further assign or delegate any rights or obligations hereunder except to the original Purchaser; and |
| | (iv) | The Purchaser shall in no event assign to its engineering or construction contractor the right to receive liquidated damages under this Contract. |
| | 26.3 | Collateral Assignment |
The Purchaser may also assign a collateral interest in the Contract to a lender who is not an Eligible Assignee as collateral security for a loan for the acquisition of the Equipment, provided however, that Purchaser and Lender agree that any future assignment to the Lender shall occur only as the result of the exercise by Lender of its remedies under the loan agreements relative to a bankruptcy or liquidation of Purchaser. Under no circumstances, however, shall a collateral assignment require Seller to deliver Equipment to Purchaser or an assignee if Seller has not been fully paid for such Equipment.
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| | 26.4 | All Other Assignments and Transfers by Purchaser |
All other assignments or transfers by Purchaser of any or all of its duties or rights under this Contract (by operation of law or otherwise) are subject to Seller’s prior written consent. Further, Purchaser agrees that, until Purchaser receives title to the Equipment as set forth herein, Purchaser shall not, directly or indirectly sell, offer to sell or otherwise broker the Equipment.
| | 26.5 | Seller’s Right to Assign |
The Seller may assign its rights and delegate its obligations under this Contract to any Affiliate or subsidiary company. Seller may assign its rights and obligations to other parties with the prior written consent of Purchaser.
Any assignment shall be subject to all limitations of liability contained in the Contract. The Purchaser may not assign this Contract except in accordance with this Article. Any purported assignment not in accordance with this Article shall be void and without effect.
| | 26.7 | Change in Control of Purchaser |
If the Seller believes that a change in the ownership or control of the Purchaser prejudices the Seller’s ability to enforce its rights under this Contract, the Purchaser shall furnish such additional security as the Seller shall reasonably require.
| Article 27 | Dispute Resolution |
| | 27.1 | Referral to Senior Management |
Any and all controversies, disputes or differences between the Parties to this Contract, if not amicably settled by the Parties with thirty (30) days following written notice of dispute, shall be referred to senior management of the Parties for resolution. In the event the dispute has not been resolved within forty-five (45) days following referral to senior management, or such longer period as the Parties may mutually agree, then either Party may, upon ten (10) days notice to the other party, institute arbitration in accordance with the following paragraphs.
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Any and all controversies, disputes or differences between the Parties to this Contract, if not resolved by referral to Senior Management, shall be resolved by arbitration pursuant to the Rules of the Center for Public Resources ("CPR") for Non-Administered Arbitration of Business Disputes as in effect at the time of the arbitration. The parties consent to a single, consolidated arbitration for all Disputes for which arbitration is permitted. The neutral organization for purposes of the CPR rules will be the CPR. The arbitral tribunal shall be composed of one arbitrator selected by agreement of the parties or, in the absence of such agreement within 60 days after either party first proposes an arbitrator, by the CPR. The arbitration shall be conducted in Houston. Both Parties shall have the right to present documentary evidence and witnesses and the right to cross-examine witnesses. On request of either Party, a transcript of the hearings shall be prepared and made available to the Parties. The arbitrators shall determine the Dispute in accordance with the Governing Law without giving effect to any conflict of law rules or other rules that might render such law inapplicable or unavailable, and shall apply this Agreement according to its terms. While recognizing that the Rules of the CPR govern any arbitration hereunder, the parties hereby specifically authorize the arbitrator to grant dispositive or partially dispositive motions where such relief would be warranted under the Federal Rules of Civil Procedure, and such relief should be granted where appropriate. The arbitrators shall not, however, have the power to:
| | (i.) | Impose obligations involving the limitations of liability or applicable remedies other than those set forth in and permitted by this Contract; |
| | (ii.) | Award any damages excluded by Article 24.2 of this Contract or |
| | (iii.) | Otherwise award damages inconsistent with the terms of the contract. |
The Arbitrators shall be instructed to provide a detailed written opinion, in the English language, setting forth the basis for each of their findings. Reasonable expenses of the arbitration shall be borne in accordance with the decision of the arbitration.
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The written decision of the arbitrators shall be final and binding upon both Parties. In the context of an attempt by either party to enforce an arbitral award or order, any defenses relating to the parties' capacity or the validity of this Agreement or any related agreement under any law are hereby waived; and judgment on any award or order resulting from an arbitration conducted under this paragraph may be entered and enforced in any court, in any country, having jurisdiction thereof or having jurisdiction over any of the parties or any of their assets. Except as expressly permitted by this Agreement, no party will commence or voluntarily participate in any court action or proceeding concerning a Dispute, except:
| | (i.) | For enforcement of an arbitral award, or |
| | (ii.) | To restrict or vacate an arbitral decision based on the grounds specified under applicable law and not waived above. |
Article 28 Governing Law
This Contract shall be construed and interpreted in accordance with the laws of the State of New York, excluding its conflict of law rules (the “Governing Law of the Contract”), provided that any provision of such law invalidating any provision of this Contract or modifying the intent of the Parties as expressed in the terms of this Contract shall not apply.
| Article 29 | Software License |
Purchaser is granted a limited license for any Software within the Scope of Supply. All Software is protected by the copyright laws of the United States and by applicable international treaties. No rights under copyrights are transferred to Purchaser, except as specifically provided herein. All Software provided by Seller remains Seller’s property. If Purchaser receives Software that renders Software that Purchaser then has redundant, Purchaser must return the redundant Software to Seller or certify in writing that Purchaser has erased all copies of it. This license allows Purchaser to:
| | (i.) | Use the Software only on the Equipment on which it is installed at the time of delivery or, if Software is supplied separately, in connection with Equipment supplied by Seller. Purchaser must obtain a supplementary license from Seller (which Seller may or may not grant in its sole discretion) before using the Software in connection with any other equipment or for any other purpose. |
| | (ii.) | Make one copy of the Software in machine-readable form solely for backup purposes. Purchaser must reproduce on each copy the copyright notice and any other proprietary legends that were on the original copy. |
| | (iii.) | Transfer the Software and all rights under this license to another party as part of the sale of the Equipment with which it is used, but only if the other Party agrees in writing to be bound by the terms of this Article and the other provisions of the Contract. |
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Contract For U.S. Based Sale of Equipment and Services
| | 29.2 | Distribution and Derivative Works |
Purchaser may not distribute copies of the Software to others or electronically transfer the Software from one computer to another over a network. The Software contains trade secrets. In order to protect them Purchaser may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. PURCHASER MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, DISTRIBUTE, NETWORK, OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PART THEREOF.
Nothing herein shall be deemed to create an obligation on the part of Seller to provide any upgrade or revision to any Software other than pursuant to a specific written obligation to do so.
| Article 30 | Contract Documents |
The following documents shall comprise the Contract, and shall together be referred to as the “Contract”:
| (ii.) | The enumerated Appendices hereto (all of which shall be incorporated herein by this reference) |
The Effective Date of this Contract shall be the last to occur of the:
| (i.) | Date when it has been signed by both Parties and |
| (ii.) | Last date when any other conditions to effectiveness set forth in Attachment 3 have been met. |
Notice to Proceed shall be deemed to have been given by Purchaser to Seller upon Seller’s receipt of the first payment listed on Attachment 3.
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Contract For U.S. Based Sale of Equipment and Services
| Article 32 | Entire Agreement |
This Contract represents the entire agreement between the Parties and no modification, amendment, rescission, waiver or other change shall be binding on either Party unless assented to in writing by the Party’s authorized representative. This Contract supersedes all previous written or verbal agreements regarding the Project, including any previous proposal, Agreement-in-Principle or Memorandum of Understanding. Any oral or written representation, warranty, course of dealing or trade usage not contained or referenced herein shall not be binding on either Party. Each Party agrees that it has not relied on, or been induced by, any representations of the other Party not contained in this Contract.
| Article 33 | Miscellaneous Provisions |
| | 33.1 | Third-Party Beneficiaries |
Except as provided in the Article 24, these provisions are for the benefit of the Parties hereto and not for any other third party.
All sales hereunder of U.S.-origin goods and related technical data (including software) shall at all times be subject to the export control laws and regulations of the U.S. Government and any amendments thereof. The Purchaser agrees that it shall not make any disposition by way of transshipment, export, diversion or otherwise, except as said laws and regulations may expressly permit, of U.S.-origin goods and related technical data (including software) supplied by the Seller.
The Articles with the following titles shall survive termination of this Contract: Taxes, Warranty, Patents, General Indemnity, Limitation of Liability, Proprietary Information and Miscellaneous Provisions.
Waiver by either Party of any right under this Contract shall not be deemed a waiver by such Party of any other right hereunder.
The invalidity in whole or in part of any part of this Contract shall not affect the validity of the remainder of the Contract.
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Contract For U.S. Based Sale of Equipment and Services
The Equipment and Services sold hereunder are not intended for application (and shall not be used) in connection with any nuclear installation or activity and Purchaser warrants that it shall not use the Equipment and Services for such purposes, or permit others to use or permit others to use the Equipment or Services for any such purposes. If, in breach of the foregoing, any such use occurs, Seller shall have no liability for any nuclear or other damage, injury or contamination, and Purchaser shall indemnify Seller, its Affiliates and suppliers of every type and tier against any such liability, whether arising as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability or otherwise.
| | 33.7 | Changes and Improvements Beyond Scope |
It is understood that Seller has the right to make changes in product design and add improvements to products or services at any time without incurring any obligations to install the same on or in connection with the Equipment and Services provided hereunder.
This Contract may be signed in any number of counterparts, each of which shall constitute one and the same instrument.
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Contract For U.S. Based Sale of Equipment and Services
IN WITNESS WHEREOF the Parties have caused this document to be executed by their authorized representatives as of the Effective Date.
Seller GE PACKAGED POWER, INC. | Purchaser MMC ENERGY, INC. |
By: | /S/Andrew Morton (Signature) Andrew Morton (Printed Name) Regional Sales Manager (Title) January 25, 2008 (Date) | By: | /s/ Denis Gagnon (Signature) Denis Gagnon (Printed Name) Chief Financial Officer (Title) January 25, 2008 (Date) |
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Contract For U.S. Based Sale of Equipment and Services
Attachment 1 Defined Terms
The following defined terms will be used throughout this Contract:
| a) | “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by or is under common control with a Party. For the purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the controlled entity, whether through the ownership of voting securities or partnership or other ownership interests or by contract or otherwise. |
| b) | “Ambient Site Conditions” shall have the meaning ascribed in Article 17.2. |
| c) | “Change in Laws” or shall mean a change to a Law, or a change in the interpretation or application of a Law by the cognizant executive or judicial authorities occurring after the date of Seller’s original proposal to Purchaser. |
| d) | “Change Order” shall mean a written agreement to change the Equipment or Services which describes the change, identifies the writing as a Change Order, sets out adjustments, if any, in the Contract Price or Unit Price(s) and any other provision of this Contract which is affected, and is signed by both Parties. |
| e) | “Codes and Standards” shall have the meaning ascribed in Article 17.2. |
| f) | “Contract Documents” shall have the meaning ascribed in Article 30. |
| g) | “Contract Price” shall mean the total firm price as consideration for the Equipment and the Services, as set forth in Article 3 and as may be adjusted from time to time in accordance with this Contract. |
| h) | “Customer Collaboration System” shall have the meaning ascribed in Article 17.10. |
| i) | “Delivery” of the Equipment shall occur upon the event described in Article 8. |
| j) | “Delivery Point” shall have the meaning ascribed in Article 7.3. |
| k) | “Effective Date” shall mean the date described in Article 31. |
| l) | “Equipment” shall mean all of the equipment described in the “Equipment” portion of Attachment 2. |
| m) | “Eligible Assignee” shall have the meaning ascribed in Article 26.1. |
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Contract For U.S. Based Sale of Equipment and Services
| n) | “Federal Laws” shall have the meaning ascribed in Article 17.2. |
| o) | “Governing Law of the Contract” shall have the meaning ascribed in Article 28. |
| p) | “Law” or “Laws” shall mean those laws, regulations, decrees or similar orders with mandatory effect issued by the legislative, judicial or executive branch of the relevant government, in effect as of the date of Seller’s original proposal to Purchaser, to the extent such laws, regulations, decrees or similar orders are applicable to the scope of this Contract. |
| q) | “Local Laws” shall be those local Laws that are (a) identified by Purchaser in Attachment 2, (b) in effect as of the Notice to Proceed and (c) agreed to be incorporated into the manufacturing of the Unit(s) by Seller. If no Local Laws are set forth in Attachment 2 and agreed to by Seller, the manufacturing process shall not incorporate any consideration of Local Laws. |
| r) | “Major Components” shall have the meaning set forth in Article 8. |
| s) | “Minimum Performance Criteria” shall mean 95% of the Performance Guarantee for output and 105% of the Performance Guarantee for heat rate. |
| t) | “Minor Components” shall have the meaning set forth in Article 8. |
| u) | “Must Meet Remedy” is a one-time rather than continuing obligation on the part of Seller to repair or replace the Equipment so that the Equipment meets a designated performance criteria (e.g., the Minimum Performance Criteria). A Must Meet Remedy is offered in lieu of other remedies such as liquidated damages or warranty. |
| v) | “Notice of RTS” shall mean Seller’s notice of readiness to ship the Equipment, or relevant portion thereof, from the relevant factory or warehouse. |
| w) | “Notice to Proceed” shall have the meaning ascribed in Article 31. |
| x) | “On-Site Services” are described in Attachment 12. |
| y) | “Order Definition Meeting” shall mean a project kick-off meeting between the Seller's project execution team and the Purchaser's project team. |
| z) | “Options” shall have the meaning ascribed in Article 4. |
| aa) | “Owner” shall mean that corporation, partnership, or individual which owns the facility in which the Equipment will be installed. |
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Contract For U.S. Based Sale of Equipment and Services
| bb) | “Party” and "Parties” shall have the meanings ascribed in the foreword to this Contract. |
| cc) | “Payment Schedule” shall mean the schedule of payments attached to this Contract as Attachment 3. |
| dd) | “Performance Guarantees” shall mean the guaranteed values identified in the Stamped Guarantee Sheet attached hereto as Attachment 9. |
| ee) | “Project” shall mean Purchaser’s power generation project. |
| ff) | “Purchaser” shall mean the entity so identified in the foreword to this Contract. |
| gg) | “Scheduled RTS Date(s)” shall mean the date(s) by which Seller will provide Notice of RTS for the relevant Unit(s), as set forth in Attachment 7 hereto. |
| hh) | “Scope of Supply” shall mean the Equipment plus the Services, as set forth in Attachment 2. |
| ii) | “Seller” shall mean the entity so identified in the foreword to this Contract. |
| jj) | “Services” shall mean all of the those services described in the “Services” portion of Attachment 2. |
| kk) | “Site” shall mean the location of the Project and place where the Equipment will be installed, as indicated in the Recitals to this Contract. |
| ll) | “Site Requirements” shall have the meaning ascribed in Article 17. |
| mm) | “Software” means a computer program or compilation of data that is fixed in any tangible medium of expression, or any storage medium from which the program may be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device, and shall include without limitation any of Seller’s proprietary operating Software, provided for the ordinary operation of the Equipment, any optional Software to enhance the operation of the Equipment, as well as any upgrades or revisions of this material the Seller provides in fulfillment of a specific written commitment or otherwise. |
| nn) | “State Laws” shall be those state Laws that are (a) identified by Purchaser in Attachment 2, (b) in effect as of the Notice to Proceed and (c) agreed to be incorporated into the manufacturing of the Unit(s) by Seller. If no State Laws are set forth in Attachment 2 and agreed to by Seller, the manufacturing process shall not incorporate any consideration of State Laws. |
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Contract For U.S. Based Sale of Equipment and Services
| oo) | “Subcontractor(s)” shall mean any corporation, partnership, or individual having a contract with the Seller to supply labor or other services to be performed at the Site in connection with this Contract. |
| pp) | “Supplier(s)” shall mean any corporation, partnership, or individual having a contract with the Seller to supply material, equipment, labor, goods, or services to the Seller in connection with its obligations under this Contract, other than contracts labor or other services to be performed at the Site. |
| qq) | “Termination Schedule” shall mean the schedule of termination charges attached to this Contract as Attachment 5. |
| rr) | “Training Services” are described in Attachment 13. |
| ss) | “Unit” shall mean a single gas turbine and its associated generator, together with those accessories associated only with that gas turbine. |
| tt) | “Unit Price” shall have the meaning ascribed in Article 3. |
| uu) | “Warranty Period” shall have the meaning ascribed in Article 13. |
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