FAIRBANKS PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into on this 30th
day of June, 1994 between O'Brien Environmental Energy, Inc., a
Delaware Corporation, with its principal offices at 225 S. Eighth
Street, Philadelphia, Pennsylvania (hereinafter "Purchaser") and
SmithKline Beecham Corporation, a Pennsylvania corporation, with
offices 709 Swedeland Road, King of Prussia, PA 19406-0930
(hereinafter "Seller").
BACKGROUND
WHEREAS, the Purchaser wishes to purchase, subject to the
terms and conditions set out below, two (2) diesel powered
electric generator sets manufactured by Fairbanks Morse with a
combine net electric output rating of approximately four (4)
megawatts and related equipment and further described in Exhibit
A (the "Gensets"); and
WHEREAS, the Seller is the owner of said Gensets and is
willing to sell to the Purchaser said Gensets on the terms and
conditions set out below;
NOW THEREFORE, in consideration of the mutual covenants
contained herein, the sufficiency of which is acknowledged by
both parties, the parties do hereby agree as follows:
1. Purchase of Gensets: Purchaser hereby agrees to
purchase, and Seller agrees to sell, subject to the terms and
conditions set out below, the Gensets plus all auxiliary
equipment, as more fully described in the specifications set out
in Exhibit A to this Agreement (hereinafter the "Equipment").
2. Price: The purchase price for the Equipment shall be
$250,000. Such price is firm, and is not subject to escalation.
3. Shipping and Delivery Terms: Purchaser shall be
responsible for the cost of removing and shipping the Equipment
from its present location at the power house facility located on
Seller's property in King of Prussia, PA. Purchaser agrees that
it will not remove the Equipment until 4.8 megawatts of the
Emergency Generators have been installed and are operating in
accordance with and the Seller has acknowledged in writing that
the Purchaser has complied with the terms of the Energy Service
Agreement dated February 28, 1994 between the Seller and O'Brien
Standby Power Energy, Inc., as amended by an Amendment to Energy
Service Agreement dated June 30, 1994 (the "Amended Energy
Agreement"). Seller agrees to allow Purchaser to store the
Equipment at such facility at no cost to Purchaser from the date
of this Agreement until the Removal Date.
4. Acceptance of Purchase Order: Purchaser expressly
limits Seller's acceptance of this Agreement to the terms and
conditions of purchase stated herein, except as may be modified
by Seller and accepted by Purchaser in writing.
5. Payment Schedule: Payment for the Equipment shall be
due as follows: (a) $25,000 within six (6) months of the
execution of this Agreement and (b) $25,000 every twelve (12)
months thereafter until the sum of $250,000 is fully paid.
6. Passage of Title: Title to all Equipment shall pass to
Purchaser upon the execution of this Agreement. Purchaser
warrants that title shall be free of all encumbrances and liens,
and Seller shall indemnify Purchaser against any expenses
incurred in removing any such encumbrances or liens, including
reasonable legal fees.
7. Condition of Equipment: Seller represents that the
Equipment is used and is being sold in its "as is, where is"
condition. Seller shall provide to Purchaser all drawings,
operation and maintenance manuals, and technical specifications
which it has available.
8. Responsibility for Taxes and Duties: Seller represents
that all duties or other taxes which may be owing on the
Equipment have been paid in full.
9. Dispute Resolution: In the event a dispute arises
between Seller and Purchaser regarding the application or
interpretation of any provision of this Agreement, the aggrieved
party shall promptly notify the other party to this Agreement of
the dispute within ten (10) business days after such dispute
arises. If the parties shall have failed to resolve the dispute
within ten (10) business days after delivery of such notice, each
party shall, within five (5) business days thereafter, nominate a
senior officer of its management to meet at a mutually agreeable
location to resolve the dispute. Should the parties be unable to
resolve the dispute to their mutual satisfaction within ten (10)
business days after such nomination, each Party shall have the
right to pursue any and all remedies available at law or in
equity. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania, and any such action brought to
enforce this Agreement shall be limited to the courts of
Pennsylvania. Seller agrees to submit to the jurisdiction of
such courts, and agrees that any judgment shall be binding and
enforceable as to Seller.
10. No Waiver: Any failure of any party to enforce any of
the provisions of this Agreement or to require compliance with
any of its terms at any time during the pendency of this
Agreement shall in no way affect the validity of this Agreement,
or any part thereof, and shall not be deemed a waiver of the
right of such party thereafter to enforce any and each such
provisions.
11. Complete Agreement: This Agreement with the terms and
conditions of purchase stated herein and its attached
specifications, drawings, Exhibits, special instructions, if
applicable, which by this reference are made a part hereof, sets
forth the entire Agreement between the parties, and all prior and
contemporaneous negotiations and writings are superseded and
replaced hereby. No other terms or conditions, including those
contained in any quotation or acknowledgement issued by Seller,
shall be binding upon Purchase unless accepted in writing by
Purchaser.
12. Counterparts; Facsimile Signature: This Agreement may
be executed in two or more counterparts, all of which when taken
together shall constitute one and the same agreement. Any
Facsimile signature of either party hereto shall constitute a
legal, valid and binding execution hereof by such party.
13. Set-off Regarding Payment: In the event that the
Purchaser or the Seller is not paid in full for any undisputed
amount then due and owing pursuant to this Agreement or the
Amended Energy Agreement, the affected party shall have the
right, notwithstanding any other rights such party may have
against any other person, firm or corporation, to set-off such
unpaid amount against any amounts owned by it or to it pursuant
to this Agreement or to the Amended Energy Agreement.
IN WITNESS WHEREOF, the Purchaser and the Seller have
executed this Agreement on the date first above stated.
SMITHKLINE BEECHAM O'BRIEN ENVIRONMENTAL
CORPORATION ENERGY, INC.
By: By:
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Title: Title:
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