THERMAL ENERGY SERVICES AGREEMENT
Between
MARINA ENERGY, LLC
And
RESORTS INTERNATIONAL HOTEL, INC.
Dated as of June 16, 2002
TABLE OF CONTENTS
1. DEFINITIONS............................................................................................ -1-
1.1 "AAA"......................................................................................... -1-
1.2 "Act"......................................................................................... -1-
1.3 "Agreement"................................................................................... -1-
1.4 "Approved Plans".............................................................................. -1-
1.5 "Billing Month"............................................................................... -1-
1.6 "Change Order"................................................................................ -1-
1.7 "Construction Schedule"....................................................................... -1-
1.8 "Contractual Obligation"...................................................................... -2-
1.9 "Defect"...................................................................................... -2-
1.10 "Demand for Arbitration"...................................................................... -2-
1.11 "Design Documents"............................................................................ -2-
1.12 "Effective Date".............................................................................. -2-
1.13 "Energy Charges".............................................................................. -2-
1.14 "Excused Delay"............................................................................... -2-
1.15 "Expansion Option"............................................................................ -2-
1.16 "Final Completion"............................................................................ -2-
1.17 "Force Majeure"............................................................................... -2-
1.18 "Gaming Regulators"........................................................................... -2-
1.19 "Governmental Authority"...................................................................... -2-
1.20 "Hazardous Materials"......................................................................... -2-
1.21 "Improvement Completion Date"................................................................. -3-
1.22 "Initial Term"................................................................................ -3-
1.23 "Interruption"................................................................................ -3-
1.24 "Lender"...................................................................................... -3-
1.25 "Marina"...................................................................................... -3-
1.26 "Metering Equipment".......................................................................... -3-
1.27 "mmbtu"....................................................................................... -3-
1.28 "Performance Failure Day"..................................................................... -3-
1.29 "Phase II Improvements"....................................................................... -3-
1.30 "Points of Delivery".......................................................................... -3-
1.31 "Points of Return"............................................................................ -3-
1.32 "Production Facilities"....................................................................... -3-
1.33 "Renewal Term"................................................................................ -3-
1.34 "Resorts"..................................................................................... -3-
1.35 "Resorts' Act or Omission".................................................................... -3-
1.36 "Resorts Collateral Assignment". ............................................................. -3-
1.37 "Resorts' Lender"............................................................................. -3-
1.38 "Scope of Work"............................................................................... -3-
1.39 "Service Commencement Date".................................................................. -4-
1.40 "Services". .................................................................................. -4-
1.41 "Site". ...................................................................................... -4-
1.42 "Stipulated Value". .......................................................................... -4-
1.43 "Term". ...................................................................................... -4-
1.44 "Termination Payment". ....................................................................... -4-
1.45 "Temporary Loss Mitigation Plan". ............................................................ -4-
1.46 "Thermal Energy". ............................................................................ -4-
1.47 "Thermal Energy Production Facilities". ...................................................... -4-
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1.48 "Thermal Energy Production Facilities Improvements" or "Improvements". ....................... -4-
1.49 "Thermal Energy Requirements"................................................................. -4-
1.50 "Thermal Energy Standards". .................................................................. -4-
1.51 "Thermal Energy Usage Charges". .............................................................. -4-
1.52 "Third Arbitrator". .......................................................................... -4-
1.53 "Tools". ..................................................................................... -4-
1.54 "Ton Hour". .................................................................................. -4-
2. TERM AND TERMINATION OF AGREEMENT. .................................................................... -5-
2.1 Term. ........................................................................................ -5-
2.2 Renewal Terms. ............................................................................... -5-
2.3 Service Commencement Date. ................................................................... -5-
3. LICENSE AGREEMENT. .................................................................................... -5-
3.1 Grant of Licenses. ........................................................................... -5-
3.2 Consideration for Licenses. .................................................................. -5-
3.3 Rights of Resorts Before the Service Commencement Date. ...................................... -5-
3.4 Rights of Resorts After the Service Commencement Date. ....................................... -5-
3.5 Rights of Marina. ............................................................................ -6-
4. EASEMENTS. ............................................................................................ -6-
5. PRODUCTION FACILITIES, IMPROVEMENTS AND RELATED REQUIREMENTS. ......................................... -6-
5.1 Thermal Energy Production Facilities. ...................................................... -6-
5.2 Thermal Energy Production Facilities Improvements. ........................................ -6-
5.3 Production Facility Operation. ............................................................... -6-
5.4 Maintenance, Repair and Replacement. ......................................................... -7-
5.5 Communications. .............................................................................. -7-
5.6 Environmental Compliance. .................................................................... -7-
5.7 Facility Ownership. .......................................................................... -8-
5.8 Subordination. ............................................................................... -8-
5.9 Resorts' Gas and Fuel Oil Requirements. ...................................................... -8-
5.10 Resorts' Electric Requirements. ............................................................ -9-
5.11 Resorts' Water and Sewer Requirements. ....................................................... -9-
5.12 Materials and Equipment. ..................................................................... -9-
5.13 Documents. ................................................................................... -9-
5.14 Review by Resorts. ........................................................................... -9-
5.15 Cooperation. ................................................................................. -10-
6. PURCHASE AND SALE OF THERMAL ENERGY. .................................................................. -10-
6.1 Purchase and Sale of Thermal Energy. ......................................................... -10-
6.2 Points of Delivery and Return. ............................................................... -10-
6.3 Point of Transfer, Risk of Loss. ............................................................. -10-
6.4 Delivery Specifications. ..................................................................... -10-
6.5 Treatment of Condensate and Chilled Water. ................................................... -10-
7. OUTAGES; TERMINATION RIGHT FOR NON-PERFORMANCE; AND LIQUIDATED DAMAGES. ............................... -10-
7.1 Scheduled Outages. ........................................................................... -10-
7.2 Mitigation for Temporary Outages. ............................................................ -11-
7.3 Resorts' Right to Secure an Alternate Source of Thermal Energy During an Interruption in
Service. ..................................................................................... -11-
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7.4 Thermal Energy Production Facilities Non-Performance. ........................................ -11-
7.5 Resorts' Non-Performance Termination Rights. ................................................. -11-
7.6 Liquidated Performance Damages. .............................................................. -12-
7.7 Alternative Supply of Thermal Energy. ........................................................ -12-
8. CHARGES AND PAYMENTS. ................................................................................. -12-
8.1 Charges for Heating and Cooling Service. ..................................................... -12-
8.2 Adjustment in Thermal Energy Monthly Charges. ................................................ -12-
8.3 Payments; No Set-Off. ........................................................................ -13-
8.4 Invoice and Payments. ...................................................................... -13-
8.5 Statement Detail. ............................................................................ -13-
8.6 Delinquent Payments. ......................................................................... -13-
9. METERING. ............................................................................................. -13-
9.1 Metering Equipment. .......................................................................... -13-
9.2 Verification. ................................................................................ -13-
9.3 Meter Failure. ............................................................................... -14-
10. REPRESENTATIONS AND WARRANTIES. ....................................................................... -14-
10.1 Marina Representations. ...................................................................... -14-
(a.) Limited Liability Company Status. ................................................... -14-
(b.) Limited Liability Company Consents. ................................................. -14-
(c.) Binding Obligation. ................................................................. -14-
(d.) Governmental Approvals. ............................................................. -14-
(e.) No Conflicts. ....................................................................... -14-
10.2 Resorts Representations. ..................................................................... -14-
(a.) Corporate Status. ................................................................... -15-
(b.) Corporate Consents. ................................................................. -15-
(c.) Binding Obligation. ................................................................. -15-
(d.) Governmental Approvals. ............................................................. -15-
(e.) No Conflicts. ....................................................................... -15-
11. INDEMNIFICATION, INSURANCE AND MARINA PARENT GUARANTY. ................................................ -15-
11.1 Marina's Indemnity. .......................................................................... -15-
11.2 Resorts' Indemnity. .......................................................................... -16-
11.3 Marina's Insurance. .......................................................................... -16-
11.4 Resorts' Insurance. .......................................................................... -16-
11.5 Evidence of Insurance. ..................................................................... -16-
11.6 Marina Parent Guaranty. ...................................................................... -16-
12. RESORTS' PURCHASE OPTION. ............................................................................. -17-
13. RESORTS' FINANCING. ................................................................................... -17-
13.1 Resorts Financing. ........................................................................... -17-
13.2 Marina to Execute Documents. ................................................................. -18-
14. GAMING REGULATORY MATTERS. ............................................................................ -18-
14.1 General. ..................................................................................... -18-
14.2 Early Termination by Gaming Regulator. ....................................................... -18-
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14.3 New Jersey Casino Control Commission. ........................................................ -18-
14.4 Vendor Registration; Non-Discrimination. ..................................................... -18-
15. DEFAULT. .............................................................................................. -19-
15.1 Marina Default. .............................................................................. -19-
15.2 Resorts Default. ............................................................................. -19-
16. REMEDIES. ............................................................................................. -20-
16.1 Marina's Remedies. ........................................................................... -20-
16.2 Resorts' Remedies. ........................................................................... -20-
16.3 Limitations on Marina's Damages. ............................................................. -21-
16.4 Limitation on Consequential Damages. ......................................................... -21-
17. FORCE MAJEURE. ........................................................................................ -21-
17.1 Suspension of Performance. ................................................................... -21-
17.2 Termination by Reason of Force Majeure. ............................................ -21-
18. TERMINATION. .......................................................................................... -21-
18.1 Termination Events. .......................................................................... -21-
18.2 Payment by Resorts of Stipulated Value or Termination Payment. ............................... -22-
(a.) If the Improvements are Completed. .................................................. -22-
(b.) If the Improvements are not Competed. ............................................... -22-
18.3 Surrender of Production Facilities Upon Termination. ......................................... -22-
19. MISCELLANEOUS. ........................................................................................ -23-
19.1 Resolution of Certain Disputes. .............................................................. -23-
(a.) Agreement to Arbitrate. ............................................................. -23-
(b.) Rules of Arbitration. ............................................................... -23-
(c.) Location. ........................................................................... -23-
(d.) Number of Arbitrators. .............................................................. -23-
(e.) Successor Arbitrator. ............................................................... -23-
(f.) Applicable Law. ..................................................................... -24-
(g.) Notice. ............................................................................. -24-
(h.) Evidence; Record. ................................................................... -24-
(i.) Costs. .............................................................................. -24-
(j.) Agreement Controlling. .............................................................. -24-
(k.) Continued Performance. .............................................................. -24-
19.2 Assignments Generally. ....................................................................... -24-
19.3 Notice. ...................................................................................... -25-
19.4 Estoppel Certificates. ....................................................................... -25-
19.5 Confidentiality. ............................................................................. -25-
19.6 Counterparts. ................................................................................ -25-
19.7 Severability. ................................................................................ -25-
19.8 Independent Contractor Status. ............................................................... -26-
19.9 Governing Law. ............................................................................... -26-
19.10 Entire Agreement. ........................................................................... -26-
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LIST OF SCHEDULES
Schedule 1 - Technical Specifications and Points of Delivery
Schedule 2 - Thermal Energy Monthly Charges and Thermal Energy
Usage Charges
Schedule 2A - Phase II Improvements
Schedule 3 - Scope of Work
Schedule 4 - Marina's Insurance
Schedule 5 - Stipulated Value Payments Schedule
Schedule 6 - Construction Schedule
Schedule 7 - Design and Construction of Thermal Energy Production
Facilities Improvements
Schedule 8 - Marina Estoppel
Schedule 9 - Resorts' Estoppel
Schedule 10 - Termination for Convenience Payments Schedule
Schedule 11A - Thermal Energy Production Facilities Equipment List
Schedule 11B - Equipment That Is Excluded from the Production
Facilities
Schedule 12 - Operations Guaranty Agreement
Schedule 13 - Sub-Meters
Schedule 14 - Tools
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THERMAL ENERGY SERVICES AGREEMENT
THIS THERMAL ENERGY SERVICES AGREEMENT ("Agreement") is entered into as of
the __ day of April 2002 (the "Effective Date"), by and between Marina Energy,
LLC, a New Jersey limited liability company ("Marina"), and Resorts
International Hotel, Inc. a New Jersey corporation ("Resorts").
RECITALS:
Marina is engaged in the business of producing and selling energy in the
form of steam and chilled water; and
Resorts operates the Resorts International Hotel located at Boardwalk &
North Carolina Avenue, Atlantic City, New Jersey, (as the same may be expanded
or improved from time to time, the "Site"); and
Marina desires to obtain the exclusive right to use Resorts' existing steam
and chilled water production facilities located at the Site and to install
additional chilled water facilities at the Site, in order to produce and sell to
Resorts all of Resorts' heating and cooling energy requirements for the Site;
and
Marina proposes to provide an essential energy service by providing thermal
energy in support of maintaining the Site's climate control systems, life safety
systems and customer comfort; and
Resorts is willing to allow Marina to operate the steam and chilled water
production facilities located at the Site on an exclusive basis for the
aforestated purposes on the terms and conditions set forth in this Agreement.
AGREEMENT:
In consideration of the premises and mutual covenants, conditions and
agreements hereinabove and hereinafter set forth and such other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, Resorts and Marina, each intending to be legally bound, do hereby
agree as follows:
1. DEFINITIONS. Except as otherwise expressly provided herein, all
capitalized terms used in this Agreement shall have the respective meanings as
set forth below:
1.1 "AAA" has the meaning set forth in Section 19.1 of this Agreement.
1.2 "Act" has the meaning set forth in Section 14.3 of this Agreement.
1.3 "Agreement" has the meaning set forth in opening paragraph of this
Thermal Energy Services Agreement.
1.4 "Approved Plans" has the meaning set forth in Schedule 7 of this
Agreement.
1.5 "Billing Month" means any calendar month, or any portion thereof,
during which Resorts receives and Marina delivers Thermal Energy to the Site in
accordance with the terms and conditions of this Agreement.
1.6 "Change Order" has the meaning set forth in Schedule 7 of this
Agreement.
1.7 "Construction Schedule" means Schedule 6 attached hereto detailing
the construction milestone schedule for completion of the Improvements.
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1.8 "Contractual Obligation" means as to either party to this Agreement,
any contract, agreement, indenture, instrument or undertaking to which such
party is a party or by which any of its properties is bound or affected.
1.9 "Defect" means without limitation, any design, engineering,
materials, equipment, tool, supply, construction or installation relating to the
Improvements which:
(a.) does not conform to the Approved Plans; or
(b.) is of improper or inferior workmanship or materials; or
(c.) is inconsistent with the customary standards in the United
States for the design and construction of facilities similar
to the Improvements and could:
(i.) adversely affect the mechanical, electrical, thermal,
or structural integrity or life expectancy of the
Improvements; or
(ii.) adversely affect the continuous efficient, effective or
safe operation of the Improvements during the
Improvements' design life.
1.10 "Demand for Arbitration" has the meaning set forth in Section 19.1
of this Agreement.
1.11 "Design Documents" has the meaning set forth in Schedule 7 of this
Agreement.
1.12 "Effective Date" has the meaning set forth in opening paragraph of
this Agreement.
1.13 "Energy Charges" has the meaning set forth in Section 8.1 of this
Agreement.
1.14 "Excused Delay" means any delay in the performance of Marina's work
pertaining to the Improvements, but only to the extent that such delay adversely
impacts any critical path items on the Construction Schedule and is caused by
(i) any event of Force Majeure, (ii) a Resorts' Act or Omission, or (iii) a
Change Order requested by Resorts.
1.15 "Expansion Option" has the meaning set forth in Section 5.2 of this
Agreement.
1.16 "Final Completion" has the meaning set forth in Schedule 7 of this
Agreement.
1.17 "Force Majeure" means (i) acts of God, including but not limited to,
fire, lightening, earthquakes, hurricanes, storms, and any other natural
disaster; (ii) civil disturbance, (iii) acts of terrorism, (iv) changes in law
and orders of governmental authorities, and (v) provided it is beyond the
parties' control, the failure of any supplier of natural gas, fuel oil or other
fuels, electricity, and water to furnish such supplies, in a reasonably timely
manner.
1.18 "Gaming Regulators" has the meaning set forth in Section 14.1 of
this Agreement.
1.19 "Governmental Authority" means the federal government and state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any other governmental entity with authority over any aspect
of this Agreement or the performance of any of the obligations hereunder.
1.20 "Hazardous Materials" means all pesticides, pollutants,
contaminants, chemicals, gasoline, petroleum products, asbestos, radioactive
materials (including by-product, source and/or special nuclear materials),
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urea-formaldehyde, flammable explosives, or other hazardous wastes or toxic
materials, including, but not limited to, materials now or hereunder subject to
regulation as Hazardous Material under any applicable statute, law, regulation,
ordinance, rule, judgment, order, decree, legally binding directive or
requirement, or any similar form of decision of or determination by, or any
interpretation or administration of any of the foregoing by any Governmental
Authority, relating to the environment, health or safety as affected by the
environment or any Hazardous Material as now or hereinafter in effect.
1.21 "Improvement Completion Date" means the date that Marina achieves
Final Completion.
1.22 "Initial Term" has the meaning set forth in Section 2.1 of this
Agreement.
1.23 "Interruption" has the meaning set forth in Section 7.5 of this
Agreement.
1.24 "Lender" has the meaning set forth in Section 18.3 of this
Agreement.
1.25 "Marina" has the meaning set forth in opening paragraph of this
Agreement.
1.26 "Metering Equipment" has the meaning set forth in Section 9.1 of
this Agreement.
1.27 "mmbtu" means a unit of measure of energy equal to 1 million British
Thermal Units.
1.28 "Performance Failure Day" has the meaning set forth in Section 7.5
of this Agreement.
1.29 "Phase II Improvements" has the meaning set forth in Section 5.2 of
this Ageement.
1.30 "Points of Delivery" means the physical point where Thermal Energy
is delivered to Resorts, as more specifically described on Schedule 1 attached
hereto.
1.31 "Points of Return" means the physical point where Marina is
anticipated to receive the condensate from Resorts, as more specifically
described on Schedule 1 attached hereto.
1.32 "Production Facilities" means the Thermal Energy Production
Facilities and the Thermal Energy Production Facilities Improvements.
1.33 "Renewal Term" has the meaning set forth in Section 2.2 of this
Agreement.
1.34 "Resorts" has the meaning set forth in opening paragraph of this
Agreement.
1.35 "Resorts' Act or Omission" means an act by Resorts (or its
employees, contractors or agents) with respect to the Site, including the
Production Facilities, or an omission by Resorts (or its employees, contractors
or agents) with respect to the Site other than the Production Facilities, which
(a) is not within the scope of responsibility of Marina pursuant to this
Agreement and (b) would reasonably be expected to adversely affect the ability
of the Production Facilities to deliver Thermal Energy in conformance with the
Thermal Energy Requirements and the Thermal Energy Standards.
1.36 "Resorts Collateral Assignment" has the meaning set forth in
Section 13.1 of this Agreement.
1.37 "Resorts' Lender" has the meaning set forth in Section 13.1 of this
Agreement.
1.38 "Scope of Work" means those obligations of Marina as listed on
Schedule 3 attached hereto.
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1.39 "Service Commencement Date" has the meaning set forth in Section 2.3
of this Agreement.
1.40 "Services" means the operation and maintenance of the Production
Facilities and installation of the Improvements by Marina, together with such
other energy related services that Marina has agreed to provide to Resorts in
accordance with this Agreement.
1.41 "Site" has the meaning set forth in the Recitals of this Agreement.
1.42 "Stipulated Value" means, at any point in time during the Initial
Term of this Agreement, the amount listed on the Schedule 5 attached hereto.
1.43 "Term" has the meaning set forth in Section 2.2 of this Agreement.
1.44 "Termination Payment" has the meaning set forth in Section 12 of
this Agreement.
1.45 "Temporary Loss Mitigation Plan" has the meaning set forth in
Section 7.2 of this Agreement.
1.46 "Thermal Energy" means, as the context requires, quantities of
heating and cooling energy as measured in mmbtu and ton hours, respectively,
extracted from the circulating flows of the steam/condensate and chilled water
provided to Resorts at the Site in accordance with the delivery specifications
set forth on Schedule 1 attached hereto.
1.47 "Thermal Energy Production Facilities" means the existing chillers,
boilers, cooling towers, pumps and all appurtenant equipment thereto, together
with any and all parts, supplies and equipment installed at the Site and owned
by Resorts, including the equipment specifically identified on Schedule 11A,
but excluding the equipment specifically identified on Schedule 11B, attached
hereto.
1.48 "Thermal Energy Production Facilities Improvements" or
"Improvements" means (i) the equipment and components installed at the Site by
Marina as contemplated in Section 5.2 in order for Marina to provide steam and
chilled water to the Resorts under the terms of this Agreement, all as more
specifically identified on Schedule 3 attached hereto, (ii) two York 685 Ton
Chillers, Model # YKFCFBH5-CUES, Serial Nos. SEKM- 428290 AND SEKM-428170
together with all valves, piping, fittings, gauges, connectors, electrical and
other equipment installed in connection therewith, and (iii) the Phase II
Improvements installed at the Site by Marina as more specifically identified on
Schedule 2A attached hereto.
1.49 "Thermal Energy Requirements" means Resorts' peak demand
requirements for Thermal Energy at various times during the calender year as
more fully set forth on Schedule 1 attached hereto.
1.50 "Thermal Energy Standards" means the minimum delivery specifications
for Thermal Energy as set forth on Schedule 1 attached hereto
1.51 "Thermal Energy Usage Charges" means the usage charges for Thermal
Energy for each Billing Month after the Metering Equipment has been installed
and is operational determined in accordance with the usage charges set forth on
Schedule 2 attached hereto.
1.52 "Third Arbitrator" has the meaning set forth in Section 19.1 of this
Agreement.
1.53 "Tools" has the meaning set forth in Section 5.12 of this Agreement.
1.54 "Ton Hour" means a measure of the rate of energy transfer in the
amount of 12,000 British
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Thermal Units per hour.
2. TERM AND TERMINATION OF AGREEMENT.
2.1 Term. This Agreement shall be in full force and effect and be
legally binding upon the parties and their permitted successors and assigns as
of the date hereof and shall remain in effect for a term of 20 years following
the Service Commencement Date (the "Initial Term"), unless otherwise terminated
as provided herein.
2.2 Renewal Terms. Resorts shall have the option to extend the Initial
Term (the "Renewal Option") for two additional five-year terms (each a "Renewal
Term"), which Renewal Option shall be exercisable by written notice delivered by
Resorts to Marina not less than six (6) months prior to the expiration of the
then Initial Term or Renewal Term, as the case may be. The Initial Term and the
Renewal Terms shall be collectively referred to as the "Term."
2.3 Service Commencement Date. Marina shall commence delivering Thermal
Energy to the Site on June 16, 2002 (the "Service Commencement Date").
3. LICENSE AGREEMENT.
3.1 Grant of Licenses. Resorts hereby grants to Marina:
(a.) a non-exclusive license throughout the Term to enter upon the
Site in order to inspect and gain access to the Production
Facilities;
(b.) an exclusive license commencing on the Service Commencement
Date and continuing thereafter throughout the Term to use,
operate, and maintain the Thermal Energy Production Facilities
to the extent and for the purposes set forth herein; and
(c.) a non-exclusive license to use, without interruption, the
electrical service, makeup water lines, sewer, ventilation,
and fire control system which support the Production
Facilities to the extent necessary in the use, operation and
maintenance of the Production Facilities.
The licenses granted in (a.), (b.), and (c.) above will be irrevocable for
so long as this Agreement remains in effect and Marina is not in default of any
of its obligations hereunder. In exercising the rights granted to it hereunder,
Marina shall at no time interfere with the business operations of Resorts at the
Site including, without limitation the operation of the casino-hotel located at
the Site.
3.2 Consideration for Licenses. In consideration for the licenses
granted to Marina by Resorts under Section 3.1 above, Marina will pay Resorts
$10.00 on or before the Service Commencement Date.
3.3 Rights of Resorts Before the Service Commencement Date.
Notwithstanding anything herein contained to the contrary, until the Service
Commencement Date, Resorts shall retain the exclusive right to use, operate, and
maintain the Thermal Energy Production Facilities and Marina may not act in any
way whatsoever so as to interfere with the use, operation and maintenance by
Resorts of the Thermal Energy Production Facilities, provided that Resorts shall
cooperate with Marina to permit the transition to Marina of the operating
responsibilities for the Thermal Energy Production Facilities by the Service
Commencement Date.
3.4 Rights of Resorts After the Service Commencement Date. After the
Service Commencement Date, Resorts, its agents, employees and representatives,
shall have the right to enter the Production Facilities to inspect the same, to
deal with emergencies affecting the Site, to post such notices as may be
permitted or required by
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law, to prevent the perfection of liens against Resorts' interest in the
Production Facilities, to grant easements or rights-of-way which do not
unreasonably interfere with the provision of the Services by Marina or for any
other purpose as Resorts may require in connection with the operation,
maintenance or ownership of the Site; provided, however, as a result thereof
Resorts shall use reasonable efforts not to interfere with Marina's provision of
the Services. Resorts and its agents and representatives shall also have
reasonable access at all times to all Production Facilities operations and any
documents, materials and records and accounts reasonably relating to the
operation and maintenance of the Production Facilities for purposes of
inspection and review. Upon the request of Resorts, and its agents and
representatives, Marina shall make available to Resorts and provide them with
reasonable access to any operating data and all operating logs, including
without limitation, all operational records within three business days following
each such request.
3.5 Rights of Marina. From and after the Service Commencement Date,
Marina shall retain the exclusive right (subject only to Resorts' access and
inspection rights reserved by this Agreement) to use, operate and maintain the
Production Facilities and Resorts may not act in any way whatsoever so as to
interfere with the use, operation and maintenance by Marina of the Production
Facilities. Additionally, Marina shall retain in all cases including Events of
Default, the property rights to the Improvements, subject to the provisions of
Section 18.3.
4. EASEMENTS. Resorts shall grant, or cause to be granted, to Marina all
rights-of-way, access rights, easements, licenses, and other rights with respect
to the Site as may be reasonably necessary for Marina to perform its obligations
and exercise its rights hereunder. Resorts shall use commercially reasonable
efforts to obtain, or cause to be obtained (in form and substance reasonably
satisfactory to Marina) non-disturbance agreements or, if applicable, waivers
and consents from each of its mortgagees or landlords with respect to all rights
of way, access rights, easements, licenses and other property rights which
Marina is obligated to provide or cause to be provided to Marina pursuant to
this Article 4.
5. PRODUCTION FACILITIES, IMPROVEMENTS AND RELATED REQUIREMENTS.
5.1 Thermal Energy Production Facilities. From and after the Service
Commencement Date, Marina will operate and maintain the Thermal Energy
Production Facilities in accordance with the Scope of Work so as to produce and
deliver Thermal Energy to Resorts at the agreed upon Points of Delivery in
accordance with the Thermal Energy Requirements and the Thermal Energy
Standards.
5.2 Thermal Energy Production Facilities Improvements. In accordance
with Schedules 1, 3 and 6 attached hereto, Marina will engineer, permit,
construct, finance, operate and maintain the Improvements so as to produce and
deliver Thermal Energy to Resorts at the agreed upon Points of Delivery in
accordance with the Thermal Energy Requirements and the Thermal Energy
Standards. At Resorts' option (the "Expansion Option"), Marina will increase the
capacity of Thermal Energy being delivered to the Site by installing the
equipment and components listed on the attached Schedule 2A (the "Phase II
Improvements"). The Phase II Improvements will be deemed part of the
"Improvements." If and when Resorts exercises the Expansion Option, the Scope of
Work will be automatically amended to reflect the Phase II Improvements work.
Marina's obligation to install the Phase II Improvements is conditioned upon
Resorts providing Marina with such additional physical space at the Site as is
necessary for Marina to complete any required additions to the Production
Facilities as a result of such additional Thermal Energy requirements of
Resorts.
5.3 Production Facility Operation. Marina, at its sole cost and
expense, will use, operate and maintain the Production Facilities in a manner
which meets or exceeds good industry practice, and secure and maintain all
permits necessary for the use, operation, maintenance and repair of the
Production Facilities. Not later than six months prior to the projected
Improvement Completion Date, Resorts and Marina shall develop mutually agreeable
written operating procedures to serve as guidelines for such operating aspects
of mutual interest as the parties may agree upon. Such procedures (i) shall not
override any other provisions of this Agreement, (ii) shall not require Marina
to change the design
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or construction of the Production Facilities, and (iii) may be revised by the
parties by further written agreement at any time. The procedures shall establish
a means of continuous communication between Resorts and Marina. The procedures
may include planning arrangements, information sharing, joint short-term and
long range planning arrangements for performing concurrent maintenance and
improvements, emergency notification and response procedures for Production
Facilities forced outages and upsets, and designation of decisional authority
levels for responding to emergencies.
5.4 Maintenance, Repair and Replacement.
(a.) Marina shall, at its sole cost and expense, maintain, repair,
overhaul and replace the Production Facilities, including
repairs or replacements necessitated by such equipment
exceeding its useful life or by casualty (regardless of
whether such casualty is caused by a Force Majeure event);
provided, however, Marina shall not be obligated to (i) repair
damage to the Thermal Energy Production Facilities as a result
of casualty that is not covered by the insurance policies
Marina is required to maintain under this Agreement or (ii)
repair, overhaul or replace any of the six boilers, cooling
towers, or underground storage tanks identified on Schedule
11A when such repair, overhaul or replacement is necessitated
by any such boiler, cooling tower or underground tank
exceeding its useful life.
(i.) A boiler shall be deemed to have exceeded its useful
life when (A) it fails to consistently achieve its
performance requirements (except if such failure is
caused by Marina's failure to properly maintain the
boiler as required by this Agreement), (B) the
applicable insurance carrier requires replacement for
continuing coverage, (C) it suffers a major shell
failure or tube sheet failure, or (D) over 50% of the
heating tubes fail. If a boiler exceeds it useful life,
Marina shall, at the direction and expense of Resorts,
either (X) decommission the boiler in place; (Y)
replace the boiler; or (Z) continue to maintain and
repair the boiler.
(ii.) A cooling tower shall be deemed to have exceeded its
useful life when it suffers a major failure of the
housing, the pan, or of the structural support steel.
If a cooling tower identified on Schedule 11A exceeds
its useful life, Marina shall, at the direction and
expense of Resorts, replace the cooling tower or
continue to maintain and repair the cooling tower.
(b.) In the event Marina is required to replace any of the three
heat exchangers located in the boiler room, Resorts shall
reimburse Marina for one-half of the cost of the new heat
exchangers.
5.5 Communications. Resorts and Marina shall maintain open daily
communications to share information regarding operation of the Production
Facilities so that Resorts and Marina can better coordinate provision of the
Services. Among the items to be addressed by such communications are matters
relating to the scheduling of maintenance and Resorts' expected Thermal Energy
Requirements levels. In addition, at least on a quarterly basis, Resorts and
Marina shall attend consultation meetings to review the preceding quarter's
activities, discuss any anticipated problems, and provide a forecast of steam,
hot water and chilled water needed by Resorts for the next four quarters. Such
forecasts will be provided for planning purposes only.
5.6 Environmental Compliance. Marina shall not treat, store or dispose
of any Hazardous Materials at or on the Site; with the exception that Marina may
accumulate such Hazardous Materials as allowed under applicable laws and
regulations for off-site treatment, storage or disposal and Marina may store
commercial products purchased for use in connection with the Production
Facilities which contain Hazardous Materials so long as such storage complies
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with all applicable environmental laws. Unless caused by an act or omission of
Marina, its employees, officers, contractors or agents, Marina will not be
liable for pollution caused by the existing underground storage tanks listed on
Schedule 11A.
5.7 Facility Ownership.
(a.) Title to the Thermal Energy Production Facilities shall remain
with Resorts and Marina shall not remove, alter (except as
otherwise required or permitted under this Agreement), or
permit any lien to exist on such Thermal Energy Production
Facilities.
(b.) Title to the Thermal Energy Production Facilities Improvements
shall remain with Marina, subject to the terms of this
Agreement.
(c.) Marina will maintain the Production Facilities free from any
bonds, liens, or encumbrances, including liens or encumbrances
arising out of the work performed, materials furnished, or
obligations incurred by or at the direction of Marina, and
shall protect, defend, indemnify, and hold Resorts harmless
from and against any claims, liabilities, judgments or costs
(including, without limitation, reasonable attorneys' fees and
costs) arising out of the same or in connection therewith as
more particularly set forth in Section 11.1 below.
(d.) Marina shall give Resorts notice at least five business days
prior to the commencement of any construction or installation
work within the Production Facilities (or such additional time
as may be necessary under applicable laws) to afford Resorts
the opportunity of posting and recording appropriate notices
of non-responsibility. Marina shall remove any such lien or
encumbrance by bond or otherwise within 20 days after notice
by Resorts and if Marina fails to do so, Resorts may pay the
amount necessary to remove such lien or encumbrance, without
being responsible for investigating the validity thereof. The
amount so paid by Resorts shall be due by Marina to Resorts
within 30 days after written notice, without limitation as to
the other remedies available to Resorts under this Agreement.
5.8 Subordination. This Agreement, including the licenses granted in
Section 3 above shall be subject and subordinate to all present and future:
(a.) ground or underlying leases of the Site, or portions thereof;
(b.) mortgages, trust deeds or other encumbrances granted by
Resorts with respect to the Site or its interest in the
Thermal Energy Production Facilities, or any part thereof;
(c.) any covenants, conditions and restrictions, reciprocal
easement agreements, and other easements related to the Site,
granted by Resorts; and
(d.) renewals, extensions, modifications, consolidations and
replacements of any of the foregoing.
5.9 Resorts' Gas and Fuel Oil Requirements. Commencing on the
Improvements Completion Date and continuing throughout the Term, Marina shall be
responsible for establishing and coordinating the sub-metering of natural gas
and fuel oil service to the Production Facilities and Marina shall grant a
credit to Resorts on a monthly basis equal to the total cost of such natural gas
and fuel oil delivered to the Production Facilities, including but not limited
to commodity costs, transportation charges, balancing charges, surcharges, and
taxes. Resorts shall provide Marina with timely copies of its natural gas and
fuel oil bills. The parties intend that Resorts shall remain the customer of
record for
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all natural gas and fuel oil service to the Site and be responsible for paying
all of the costs of natural gas and fuel oil delivered to the Site. Marina
covenants to install the meters as listed on the attached Schedule 13 prior to
the Improvement Completion Date.
5.10 Resorts' Electric Requirements. Commencing on the Improvements
Completion Date and continuing throughout the Term of this Agreement, Marina
shall be responsible for establishing and coordinating the electric sub-metering
of electric service to the Production Facilities and Marina shall grant a credit
to Resorts on a monthly basis equal to the total cost of such electricity
delivered to the Production Facilities, including but not limited to the costs
of generation, transmission, distribution, surcharges, and taxes. Resorts shall
provide Marina with timely copies of its electric bills. The parties intend that
Resorts shall remain the customer of record for all electric service to the Site
and be responsible for paying all of the costs of delivering electricity to the
Site.
5.11 Resorts' Water and Sewer Requirements. Resorts will, at its costs,
be responsible for providing the make-up water associated with the water
requirements and effluent sewerage discharge of the Production Facilities. For
the first 12 months after the Service Commencement Date, Marina will provide the
labor associated with testing, licensing, and permitting of the potable water
system servicing the Site at no cost to Resorts. Any other cost associated with
licensing, operations, and maintenance of the potable water system shall be at
Resorts cost. All licenses and permits related to the potable water system will
be issued in Resorts' name.
5.12 Materials and Equipment. Marina acknowledges that Resorts owns the
tools and equipment listed on the attached Schedule 14 (collectively, the
"Tools"). Resorts agrees to allow Marina to use the Tools to service the
Production Facilities until the expiration or sooner termination of this
Agreement, and Marina acknowledges receipt of the Tools. At the expiration or
sooner termination of this Agreement, Marina will return the Tools to Resorts
in their current condition, reasonable wear and tear excepted. Prior to
returning the Tools to Resorts, Marina will repair any damaged Tools and will
replace any Tools that are lost or damaged beyond repair.
Other than title to the Improvements, title to all materials, equipment,
supplies, consumables, spare parts and other items purchased or obtained by
Marina in accordance with this Agreement in connection with the construction,
operation or maintenance of the Production Facilities shall pass immediately to
and vest in Marina upon the passage of title from the vendor or supplier
thereof, provided, however, that upon the earlier of the expiration of the Term
or earlier termination of this Agreement, subject only to the payment in full of
the Energy Charges, title to all such materials, equipment, supplies,
consumables, spare parts and other items purchased or obtained by Marina in
connection with the construction, operation or maintenance of the Production
Facilities shall immediately and automatically and without the need for any
further documentation, vest in Resorts. At Resorts' request, Marina shall
promptly execute any and all documents requested by Resorts to effectuate such
transfer of title. If Marina fails to execute any such documents, Marina hereby
appoints Resorts as Marina' attorney-in-fact coupled with an interest to execute
any such documents as may be necessary or desired by Resorts to effectuate the
transfer of title from Marina to Resorts. Marina shall retain, in all cases
including Events of Default, the property rights to the Improvements, subject to
the provision of Section 18.3.
5.13 Documents. All materials and documents prepared or developed by
Marina or its employees, representatives or contractors in connection with the
Production Facilities or the performance of Services under this Agreement,
including all manuals, data, designs, drawings, plans, specifications, reports
and accounts, together with any materials and documents furnished to Marina or
to its contractors by Resorts, shall be delivered to and become the property of
Resorts upon expiration or termination of this Agreement; provided that Marina
may retain and use copies of all such materials and documents prepared by
Marina.
5.14 Review by Resorts. All materials and documents prepared or developed
by Marina or its employees, representatives or contractors in connection with
the Production Facilities or the performance of the Services, including all
manuals, data, designs, drawings, plans, specifications, reports and accounts,
shall be available for review by Resorts at all reasonable times during
development and promptly upon completion of the Improvements and any
modifications
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thereto and throughout the Term. However, Resorts' approval of materials and
documents, submitted by Marina shall not relieve Marina of its responsibility to
perform its obligations under this Agreement.
5.15 Cooperation. During any inspection or review of the Production
Facilities, Resorts and its agents and representatives shall comply with all of
Marina' safety and security procedures, and Resorts and its agents and
representatives shall conduct such inspection and reviews in such a manner as to
cause minimum interference with Marina' activities. Marina also shall cooperate
with Resorts in allowing other visitors access to the Production Facilities
under conditions mutually agreeable to the parties.
6. PURCHASE AND SALE OF THERMAL ENERGY.
6.1 Purchase and Sale of Thermal Energy. Commencing on the Service
Commencement Date and continuing thereafter throughout the Term, Marina will
produce and deliver for sale to Resorts, and Resorts will purchase and receive
from Marina, all of Resorts' Thermal Energy Requirements for the Site that meets
the Thermal Energy Standards as defined in Schedule 1. Marina will not deliver
any Thermal Energy produced at the Production Facilities to any person or entity
other than Resorts unless approved by Resorts in writing, which approval may be
withheld in Resorts' sole discretion.
6.2 Points of Delivery and Return. Resorts will obtain its Thermal
Energy, in the case of heating, by extracting heat from and, in the case of
cooling, by transferring heat to, the circulating flows of steam and chilled
water that Marina will make available to Resorts at the agreed upon Points of
Delivery. Resorts agrees to take and accept the flows of steam and chilled water
at such Points of Delivery and return the condensate and chilled water to Marina
at the agreed upon Points of Return.
6.3 Point of Transfer, Risk of Loss. The sale of Thermal Energy shall
be deemed to occur at the Points of Delivery and the risk of loss of the
circulating medium shall transfer to Resorts at such points and shall transfer
back to Marina at the Points of Return.
6.4 Delivery Specifications. Marina will ensure that the Thermal Energy
delivered by Marina at the Points of Delivery satisfies the conditions of
temperature and pressure specified in Schedule 1 attached hereto.
6.5 Treatment of Condensate and Chilled Water. Resorts shall not
interfere with, or restrict (other than to extract its Thermal Energy
Requirements), or contaminate in any way the flows of steam, condensate or
chilled water supplied to or collected from Resorts hereunder. Resorts agrees to
compensate Marina for the reasonable costs of treating or replacing any
condensate or chilled water that is either contaminated or not returned, after
making allowance for reasonable losses occurring within normal operating
conditions by Resorts, as reasonably demonstrated by Marina to Resorts. Further,
it is agreed that Marina may suspend service if Resorts fails to cure any
contamination of steam, condensate or chilled water caused by Resorts, as
reasonably demonstrated by Marina to Resorts, within 30 days after being advised
in writing by Marina of such contamination, provided, however, that if the
nature of such contamination is such that the same cannot reasonably be cured
within such 30 day period, Resorts shall not be deemed to be in default if it
shall have commenced such cure within such 30 day period and thereafter
diligently and continuously prosecutes such cure to completion, and Marina may
not suspend service to Resorts during such period of cure.
7. OUTAGES; TERMINATION RIGHT FOR NON-PERFORMANCE; AND LIQUIDATED DAMAGES.
7.1 Scheduled Outages. Whenever it shall become necessary for Marina to
schedule an outage so that Marina may make repairs, replacements, or changes in
the Production Facilities, both parties shall exercise reasonable efforts to
coordinate the timing of the scheduled outage, and, in any event, Marina shall
give Resorts not less than ten days prior written notice of such outage. Marina
shall use reasonable efforts to limit the duration of the outage and to schedule
chilled water outages during winter months and steam outages during summer
months. Both parties agree to
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act reasonably and in good faith, recognizing that such outages will, from time
to time, be required. Notwithstanding anything herein contained to the contrary,
Marina agrees that outages shall not and may not result in the reduction of
Thermal Energy services required to continue to maintain and meet Resorts'
Thermal Energy Requirements within reasonable levels hereunder.
7.2 Mitigation for Temporary Outages. Resorts acknowledges that there
may be limited periods during the Term when, for various reasons, Marina is
unable to deliver Thermal Energy in accordance with the Thermal Energy
Standards. Accordingly, for the purpose of mitigating the damages to both
Resorts and Marina that might arise by reason of such temporary periods of
interruption of service, Resorts and Marina agree that at least 15 days prior to
the Service Commencement Date, designated representatives of Resorts and Marina
shall adopt, memorialize, and, thereafter, maintain, modify, and revise, as
mutually agreed, a definitive written plan (the "Temporary Loss Mitigation
Plan"). The Temporary Loss Mitigation Plan will provide that if Marina becomes
aware of or has reason to believe that there exist or are likely to exist such
conditions and circumstances as will result in an interruption of service,
procedures will be followed whereby Marina shall, at its earliest opportunity,
notify Resorts of such conditions or circumstances and the potential impact on
Marina's ability to satisfy the Thermal Energy Requirements. As soon as
practicable upon the receipt of such notification, Marina and Resorts shall take
such actions as specified in the Temporary Loss Mitigation Plan, provided, that
such actions do not adversely impact Resorts' operations. Consistent with the
Temporary Loss Mitigation Plan, such actions may include, but shall not be
limited to: (i) reductions in the quantities of outside make-up air (with
corresponding reductions in the quantities of exhaust air) in accordance with
applicable codes and standards; (ii) the raising or lowering as applicable of
temperature set-points by plus or minus two degrees Fahrenheit in occupied
common areas and retail spaces; (iii) the raising or lowering as applicable of
temperature set-points by plus or minus five degrees Fahrenheit in occupied
common areas and retail spaces, and (iv) the shutdown of all unused indoor
lighting. This Section does not affect Resorts' rights with respect to
Interruptions and Performance Failure Days as set forth in this Agreement.
7.3 Resorts' Right to Secure an Alternate Source of Thermal Energy
During an Interruption in Service. In addition to Resorts' termination and
liquidated damage rights as set forth in this Agreement, if at any time during
this Agreement, Marina shall fail to deliver the Thermal Energy Requirements or
fail to satisfy the Thermal Energy Standards and such failure is, in Resorts'
reasonable judgment, attributable to Marina's failure to diligently pursue and
implement appropriate corrective actions consistent with the facts and
circumstances of the interruption, Resorts may at its option elect to cure
Marina's non performance, without being in default of Resorts' obligations under
this Agreement, by producing its own Thermal Energy (with or without use of the
Production Facilities) or purchasing and accepting deliveries of Thermal Energy
from any other source. In such event, Marina shall reimburse Resorts for the
excess of any costs if incurred by Resorts to cover over and above Marina's
rates and charges hereunder.
7.4 Thermal Energy Production Facilities Non-Performance. Commencing on
the Service Commencement Date and during the Term, upon discovery by either
party of the unavailability of the Production Facilities or failure of the
Production Facilities to satisfy the Thermal Energy Requirements or the Thermal
Energy Standards at any time, such party shall, regardless of the cause thereof,
immediately notify the other party, and thereafter Marina shall use diligent
efforts, subject to reasonable Production Facilities' operating restrictions, to
remedy such Production Facilities unavailability and resume the production and
delivery of Thermal Energy which satisfies the Thermal Energy Requirements and
the Thermal Energy Standards. Notification pursuant to this Section 7.4 shall be
made in person or by telephone call and confirmed in writing.
7.5 Resorts' Non-Performance Termination Rights. Resorts may terminate
this Agreement upon at least 10 business days notice to Marina if either of the
following occurs after three months after the Service Commencement Date:
(a.) There are more than four "Interruptions" in the delivery of
Thermal Energy to Resorts in any calender quarter. An
"Interruption" means the failure of the Production Facilities
to satisfy the Thermal Energy Requirements or the Thermal
Energy Standards for at least two hours
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during any calender day, except if such failure is the direct
result of Force Majeure or a Resorts' Act or Omission.
(b.) There are two or more "Performance Failure Days" in any
calender year. A "Performance Failure Day" means any 24-hour
period during which the Production Facilities fail to satisfy
the Thermal Energy Requirements or the Thermal Energy
Standards for more than 8 hours, except if such failure is the
direct result of Force Majeure or a Resorts' Act or Omission.
7.6 Liquidated Performance Damages. Marina acknowledges and understands
that Resorts shall incur substantial losses and damages if the Production
Facilities fail to satisfy the Thermal Energy Requirements or the Thermal Energy
Standards. Accordingly, commencing on the later of the 91st day after the
Service Commencement Date or the achievement of milestone #13 on the
Construction Schedule ("Install new controls and meters") and continuing through
the Term, Marina will pay Resorts liquidated performance damages for
Interruptions or Performance Failure Days, as follows:
(a.) one-thirtieth (1/30th) of the then Operation and Maintenance
Monthly Fee for each Interruption; and
(b.) $100,000 for each Performance Failure Day.
The liquidated performance damages required to be paid by Marina in this Section
are limited to $200,000 per calender year. Since the exact amount of Resorts'
losses and damages due to the failure of the Production Facilities to satisfy
the Thermal Energy Requirements or Thermal Energy Standards are not readily
ascertainable, the amounts set forth in this Section constitute agreed damages
and are not a penalty.
7.7 Alternative Supply of Thermal Energy. In addition to the other
requirements of this Article, if Marina or Resorts reasonably anticipates that
any interruption in Marina's ability to consistently satisfy the Thermal Energy
Requirements or the Thermal Energy Standards will continue for more than two
days, then such party shall deliver written notice to the other party, and
promptly thereafter, Marina shall provide temporary cooling or heating, as
applicable, for the Production Facilities that is capable of consistently
satisfying the Thermal Energy Requirements and the Thermal Energy Standards, for
the expected duration of such interruption. Unless the interruption was caused
by a Resorts' Act or Omission, Marina shall be responsible for the costs related
to providing the alternative supply of Thermal Energy.
8. CHARGES AND PAYMENTS.
8.1 Charges for Heating and Cooling Service. For each Billing Month
during the Term, Resorts shall pay Marina the applicable Operation and
Maintenance Monthly Fee set forth in Schedule 2 attached hereto. For each
Billing Month during the Term after the Metering Equipment is installed and
operating, Resorts shall pay Marina the applicable and Thermal Energy Usage
Charges for Thermal Energy set forth in Schedule 2 attached hereto. If the
calculation of the Thermal Energy Usage Charges for any Billing Month results in
a negative amount, Resorts will be entitled to a credit, in an equal amount,
against the "Energy Charges" (as defined below). The credit will be reflected in
the invoice for the Billing Month in which the credit was earned.
For each Billing Month during the Initial Term, Resorts will pay to Marina
the Capacity Charges set forth on Schedule 2 attached hereto. The Operation and
Maintenance Monthly Fee, the Thermal Energy Usage Charges and the Capacity
Charges are collectively referred to as the "Energy Charges."
8.2 Adjustment in Thermal Energy Monthly Charges. If Resorts exercises
the Expansion Option,
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Marina shall provide such additional Thermal Energy requirements to Resorts to
serve the expansion under the rates, terms, and conditions set forth in Schedule
2. The increase to the Capacity Charges and the Operation and Maintenance
Monthly Fee as a result of the Phase II Improvements will be reflected in the
invoice for the first Billing Month after the Phase II Improvements are
installed and operating.
8.3 Payments; No Set-Off. Payment of the Energy Charges are conditioned
on Marina's ability to deliver to Resorts at the Points of Delivery the full
Thermal Energy Requirements of Resorts under this Agreement, but, subject to the
provisions of this Agreement, shall not otherwise be subject to any set-off,
counterclaim, abatement, or diminution. If Marina is unable to deliver to
Resorts when required any quantity of Thermal Energy, then the applicable Energy
Charges shall be adjusted to pro rate for such deficiency.
8.4 Invoice and Payments. Within 15 days after the end of each Billing
Month, Marina shall send Resorts a detailed invoice setting forth the applicable
Thermal Energy Usage Charges for the previous Billing Month. Payment of the
applicable Thermal Energy Usage Charges, less any credits or rebates due to
Resorts pursuant to this Agreement, will be due and payable within 30 days of
receipt by Resorts of the invoice from Marina, or the first business day
following such day if such day is not a business day. The Capacity Charges shall
be payable monthly in advance on the first day of each month during the Initial
Term. The Operation and Maintenance Monthly Fee shall be payable monthly in
advance on the first day of each month during the Term. Resorts shall have the
right, at reasonable hours, to examine the testing records and meter reading
charts of Marina to the extent reasonably necessary to verify the accuracy of
any invoice. If any such examination reveals any error or inaccuracy in Marina's
invoice, then proper adjustment and correction thereof shall be made as promptly
as practicable thereafter.
8.5 Statement Detail. Each statement issued by Marina to Resorts shall
itemize:
(a.) The Capacity Charges, the Operation and Maintenance Monthly
Fee, the Capacity Charges for Expansion of Chilled and Steam
Facilities Fee (if any), and the Thermal Energy Usage Charges
for the preceding month;
(b.) the quantity, cost, and credit due Resorts for natural gas,
electricity, fuel oil, make-up water and waste water used at
the Production Facilities for the Billing Month.
Any portion of the fees not invoiced because Marina does not have the
requisite billing information available at the time of Marina's statement, may
be included in the invoice for the next month.
8.6 Delinquent Payments. Any invoice tendered for service rendered
hereunder shall be deemed delinquent if not paid within 30 days after it is due.
The outstanding balance of any delinquent invoice shall accrue interest from the
date due until paid at the prime rate then in effect as published in the Wall
Street Journal or comparable publication, plus one percent (1%) per annum.
9. METERING.
9.1 Metering Equipment. On or before December 1, 2002, Marina will
furnish, install, and maintain for the Term of this Agreement, without charge to
Resorts, all of those sub-meters listed on Schedule 13, attached hereto plus all
other required meters, instruments, recording devices, and other related data
logging equipment required to measure and record all Thermal Energy delivered to
Resorts and natural gas, fuel oil, an electricity used by the Production
Facilities other than meters owned by public utility companies (collectively,
the "Metering Equipment").
9.2 Verification. Marina shall verify Metering Equipment accuracy at
least once each calendar year using commercial reasonable testing protocols
approved in writing by Resorts. Resorts will be given prior written notice of
the date on which Marina will conduct the metering equipment accuracy testing.
If there is an error in the metering
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equipment greater than +/- 1% of full scale, then an adjustment shall be made to
the billings, which were rendered for all months since the date of the last
accuracy verification. The adjustment to the billings shall be computed based on
the assumption that the metering equipment had uniformly progressed from the
allowable +/- 1% error at the time of the last accuracy test to the then
existing percentage error. Resorts' account balance on the next bill will be
adjusted to reflect this calculation.
9.3 Meter Failure. Should any Metering Equipment fail to register during
any period of time, the amount of Thermal Energy or electricity delivered or
consumed, as the case may be during such period, will be estimated based on the
amounts previously delivered or consumed, as the case may be, during similar
periods under substantial similar conditions, unless meter readings are
available from other meters at the Site.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Marina Representations. Marina hereby represents and warrants that:
(a.) Limited Liability Company Status. It is a limited liability
company duly formed, validly existing and in good standing
under the laws of the state of its formation and has all
requisite limited liability company power and authority to
enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated
hereby;
(b.) Limited Liability Company Consents. Marina has or will obtain
all necessary limited liability company approvals for the
execution and delivery of this Agreement and the performance
of its obligations hereunder;
(c.) Binding Obligation. This Agreement is a legal, valid and
binding obligation of Marina enforceable against Marina in
accordance with its terms, subject to the qualification,
however, that the enforcement of the rights and remedies
herein is subject to:
(i.) bankruptcy and other similar laws of general
application affecting rights and remedies of creditors,
and
(ii.) the application of general principals of equity
(regardless of whether considered in a proceeding in
equity or at law);
(d.) Governmental Approvals. To the best knowledge of Marina, as of
the date of execution hereof, no governmental approval (other
than any governmental approvals which have been previously
obtained or disclosed, in writing, to Resorts), is required to
authorize, or is required in connection with the execution,
delivery and performance of this Agreement or the performance
of Marina's obligations hereunder which Marina has reason to
believe that it will be unable to obtain in due course; and
(e.) No Conflicts. Neither the execution nor delivery of this
Agreement by Marina nor compliance by Marina with any of the
terms and provisions hereof:
(i.) conflicts with, breaches or contravenes the provisions
of the certificate of formation or operating agreement
of Marina or any Contractual Obligation of Marina, or
(ii.) results in a condition or event that constitutes (or
that, upon notice or lapse of time or both, would
constitute) an event or default under any Contractual
Obligation of Marina.
10.2 Resorts Representations. Resorts hereby represents and warrants
that:
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(a.) Corporate Status. It is a corporation duly organized, validly
existing, and in good standing under the laws of the state of
its incorporation and has all requisite corporate power and
authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby;
(b.) Corporate Consents. Resorts has or will obtain all necessary
corporate approvals for the execution and delivery of this
Agreement and the performance of its obligations hereunder;
(c.) Binding Obligation. This Agreement is a legal, valid and
binding obligation of Resorts enforceable against Resorts in
accordance with its terms, subject to the qualification,
however, that the enforcement of the rights and remedies
herein is subject to:
(i.) bankruptcy and other similar laws of general
application affecting rights and remedies of creditors
and
(ii.) application of general principals of equity (regardless
of whether considered in a proceeding in equity or at
law);
(d.) Governmental Approvals. To the best knowledge of Resorts, as
of the date of execution hereof, no governmental approval
(other than any governmental approvals which have been
previously obtained or disclosed, in writing, to Marina) is
required to authorize, or is required in connection with the
execution, delivery and performance of this Agreement or the
performance of Resorts' obligations hereunder which Resorts
has reason to believe that it will be unable to obtain in due
course.
(e.) No Conflicts. Neither the execution and delivery of this
Agreement by Resorts nor compliance by Resorts with any of the
terms and provisions hereof:
(i.) conflicts with, breaches or contravenes the provisions
of the corporate charter of Resorts or any material
Contractual Obligation of Resorts; or
(ii.) results in a condition or event that constitutes (or
that, upon notice or lapse of time or both, would
constitute) an event of default under any Contractual
Obligation of the Resorts.
11. INDEMNIFICATION, INSURANCE AND MARINA PARENT GUARANTY.
11.1 Marina's Indemnity. Marina hereby agrees to defend, indemnify and
hold harmless Resorts, its employees, officers, shareholders, directors, and
agents from and against any and all claims, demands, suits, actions, recoveries,
judgments, and costs and expenses in connection therewith (including, without
limitation, reasonable attorneys' fees and expenses), made, brought or obtained
on account of the loss of life, property, or injury or damage to the person or
tangible property of any person or persons whomsoever, arising out of or in
connection with:
(a.) Marina providing Services and Thermal Energy under this
Agreement;
(b.) Marina's or its employees' subcontractors, use, operation, and
maintenance of the Production Facilities, or any act required
of or omission by Marina, or any agent or employee of Marina
under this Agreement or in connection therewith;
(c.) any and all claims and liability resulting from encumbrances,
liens, or claims placed on the Site or the Production
Facilities by Marina or its members and their respective
officers, directors, employees, agents, contractors,
subcontractors, or lenders;
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(d.) any and all claims of any nature and liability of any nature
arising from environmental, health, safety or land use
violations or hazards on, affecting or related to the
Production Facilities after the Service Commencement Date,
except to the extent Marina demonstrates that such violations,
hazards or conditions existed prior to the Service
Commencement Date or such violations, hazards or conditions
are due to the acts of Resorts, its respective officers,
directors, employees, agents, contractors, subcontractors, or
assignees or any third party not employed by or under contract
with Marina in connection with Marina's performance of its
obligations pursuant to this Agreement; and
(e.) any claim or liabilities resulting from a breach by Marina of
a covenant, representation, and warranty in this Agreement;
and
(f.) any act required of or omission by Marina, or any agent or
employee of Marina, under this Agreement or in connection
therewith.
11.2 Resorts' Indemnity. Resorts hereby agrees to defend, indemnify and
hold harmless Marina, its employees, officers, shareholders, directors and
agents from and against any and all claims, demands, suits, actions, recoveries,
judgments, and costs and expenses in connection therewith (including, without
limitation, reasonable attorneys' fees and expenses), made, brought or obtained
on account of the loss of life, property, or injury or damage to the person or
property of any person or persons whomsoever, arising out of or in connection
with;
(a.) a Resorts' Act or Omission;
(b.) encumbrances, liens, or claims placed on the Improvements by
Resorts or its members and their respective officers,
directors, employees, agents, contractors, subcontractors, or
lenders;
(c.) environmental, health, safety or land use violations or
hazards on, affecting or related to the Thermal Energy
Production Facilities except to the extent that the hazards or
conditions are due to the acts or omissions of Marina, its
respective officers, directors, employees, agents,
contractors, subcontractors, or assignees; and
(d.) a breach by Resorts of a covenant, representation, and
warranty in this Agreement.
11.3 Marina's Insurance. Marina shall maintain or cause to be maintained
throughout the Term, at its sole cost and expense, the policies of insurance
meeting the terms and conditions set forth on Schedule 4 attached hereto.
11.4 Resorts' Insurance. Commencing on the date of this Agreement and
at all times thereafter throughout the Term of this Agreement, Resorts shall
maintain, at is sole cost and expense, comprehensive general public liability
(including contractual) insurance, in an amount not less than $10 million, with
respect to any liability, losses, damages, expenses, claims, actions, judgments
and settlement for any personal injury, death or property or economic loss
occurring in the Site (exclusive of the Production Facilities) or surrounding
premises and arising out of or incident to the operation, maintenance, repair,
construction, replacement, or modification of the Site (exclusive of the
Production Facilities).
11.5 Evidence of Insurance. Prior to commencing any construction or
delivering any Thermal Energy under this Agreement, Marina and Resorts shall
each furnish to the other one or more certificates of insurance evidencing the
existence of the coverages set forth in Sections 11.3 and 11.4, respectively and
naming the other an additional named insured. Each certificate shall state that
the insurance carrier will give Marina and Resorts at least 30 days written
notice of any cancellation or material change in the terms and conditions of
such policy during the periods of coverage.
11.6 Marina Parent Guaranty. Within ten days after the execution of this
Agreement, Marina will cause
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its sole member - South Jersey Industries, Inc. - to execute and deliver to
Resorts an Operations Guaranty Agreement in the form of Schedule 12, attached
hereto.
12. RESORTS' PURCHASE OPTION. Resorts shall have the option, exercisable at any
time upon at least 180 days prior written notice to Marina, to terminate this
Agreement for convenience and purchase the Improvements and the rights of Marina
hereunder. On or before the date of such termination, Resorts shall pay to
Marina the appropriate termination payment (the "Termination Payment") set forth
in Schedule 10, attached hereto.
13. RESORTS' FINANCING.
13.1 Resorts Financing. Resorts or its affiliates may mortgage,
collaterally assign, grant a security interest in, pledge or otherwise encumber
the Thermal Energy Production Facilities and its interests in this Agreement
(each of the foregoing, a "Resorts Collateral Assignment") as security for any
loan or financing obtained by Resorts or its affiliates from any party (a
"Resorts' Lender"). Resorts acknowledges and agrees that any Resorts Collateral
Assignment shall not relieve Resorts of, its obligations to Marina under this
Agreement. In no case shall Resorts grant a security interest in the
Improvements which are owned by Marina. If Resorts consummates a Resorts
Collateral Assignment, then upon delivery of a written notice to Marina from
Resorts identifying such Resorts' Lender and its address, Marina shall be
automatically bound to Resorts' Lender as follows:
(a.) If any Resorts' Lender (or any purchaser at a judicial or
non-judicial foreclosure sale) shall become the owner of the
Production Facilities by reason of foreclosure or by a deed in
lieu of foreclosure, then this Agreement shall continue in
full force and effect, without necessity for executing a new
contract, upon all of the same terms, covenants and provisions
contained herein and Marina shall be bound to the new owner
and shall attorn to such new owner and recognize such new
owner as Resorts hereunder, all subject to the conditions
that:
(i.) the new owner agrees to be bound to Marina hereunder
and to assume and perform all of the obligations of
Resorts hereunder; and
(ii.) Resorts as a result thereof shall not be released from
any of its obligations hereunder.
(b.) Marina shall deliver a duplicate copy of any notices of
default hereunder to Resorts' Lender and Resorts' Lender shall
be entitled to exercise all rights and to cure any defaults of
Resorts hereunder.
(c.) Marina shall not terminate this Agreement on account of any
default or breach by Resorts unless Marina provides written
notice to Resorts' Lender and first provides Resorts' Lender:
(i.) 30 days to cure any monetary defaults, or
(ii.) a reasonable opportunity, but not fewer than 90 days,
to cure any non-monetary defaults so long as Resorts'
Lender shall have commenced to cure such non- monetary
default within 30 days after its receipt of the notice
of default and thereafter use diligent efforts to cure
such non-monetary default.
(d.) Within 20 business days after the receipt of a written request
of Resorts or any Resorts' Lender, Marina shall execute and
deliver to Resorts and such requesting party a written
statement (i) ratifying this Agreement, (ii) certifying that
this Agreement is in full force and effect and has not been
modified, assigned, supplemented or amended except by such
writings as shall be stated, and (iii) certifying that, to the
best of Marina's knowledge, no party is in default under this
Agreement and that there are no defenses, set-offs,
recoupments
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or counterclaims against the enforcement of this Agreement by
any party hereto except as stated therein.
13.2 Marina to Execute Documents. Marina shall execute all financial and
other information on a confidential basis, consents to assignment and/or
acknowledgments of any security as may be reasonably requested by Resorts or
Resorts' Lender to give effect to the foregoing.
14. GAMING REGULATORY MATTERS.
14.1 General. Marina acknowledges that Resorts and certain of its
affiliates are licensed by and otherwise subject to the authority of the New
Jersey Casino Control Commission and New Jersey Division of Gaming Enforcement
("Gaming Regulators").
14.2 Early Termination by Gaming Regulator. Notwithstanding anything to
the contrary in this Agreement, Resorts shall have the sole and exclusive right
to terminate this Agreement by written notice to Marina, upon the occurrence of
any of the following events:
(a.) Marina's failure to timely apply for, obtain or maintain any
and all licenses, permits, and approvals from any Gaming
Regulator necessary for Marina to perform under this Agreement
and comply with applicable laws;
(b.) an order or recommendation by any Gaming Regulator requiring
or recommending the termination of this Agreement; or
(c.) the commission by Marina of any act or anything that is or
shall be an offense involving moral turpitude under federal,
state, or local laws, or which brings into public disrepute,
contempt, scandal or ridicule; or which insults or offends the
community; or
14.3 New Jersey Casino Control Commission. Marina shall comply, and shall
ensure that all of its employees, principals and agents comply, with any and all
applicable requirements of the New Jersey Casino Control Act (the "Act"), as
well as the regulations promulgated thereunder, including, but not limited to,
any licensing, qualification, vendor registration, women's business enterprise,
minority business enterprise or equal employment opportunity requirements
imposed thereunder. In addition, it shall be the sole responsibility of Marina
to ensure that all of its sub-consultants, subcontractors, vendors and
suppliers, and all employees of each of them, comply with these requirements,
where applicable, including without limitation, ensuring that all
sub-consultants, subcontractors, vendors and suppliers of Marina comply with all
applicable vendor registration and licensure requirements, and that the
employees, agents and principals of any of them comply with all qualification
requirements.
14.4 Vendor Registration; Non-Discrimination. Each party shall perform
all of its respective obligations hereunder in compliance with all applicable
laws. Without limiting the foregoing, prior to or contemporaneously with the
execution of this Agreement, Marina agrees to complete the vendor registration
process and to file with the New Jersey Casino Control Commission any and all
reports and maintain all licenses required to be filed or maintained pursuant to
the Act or to any rules or regulations promulgated by the New Jersey Casino
Control Commission, as the same may be modified, amended or supplemented from
time to time. In addition, Marina agrees to provide Resorts with any information
which Resorts, in its sole and absolute discretion, deems necessary to (i)
enable Resorts to file any such reports, or (ii) maintain any licenses of
Resorts required to be filed or maintained pursuant to the Act or any such rules
or regulations, or (iii) comply with any regulatory compliance policy (as now in
effect or hereafter adopted any as amended from time to time) and with the
request of any Gaming Regulator. Marina agrees to comply with all laws, codes
and regulations, federal, state or local, the effect of which is to prevent
discrimination and foster that which is commonly referred to as affirmative
action programs, and will assist Resorts in complying with N.J.A.C. 19:53-1 et
seq.
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15. DEFAULT.
15.1 Marina Default. Anyone of the following events shall constitute an
"Event of Default" hereunder with respect to Marina:
(a.) In connection with itself or its assets, Marina shall:
(i.) apply for or consent to the appointment of or taking of
possession by a receiver or liquidator,
(ii.) make a general assignment for the benefit of creditors,
(iii.) file a petition for relief under the Federal Bankruptcy
Code or similar state law, or
(iv.) take similar action to commence a proceeding for relief
under any other law relating to the bankruptcy,
insolvency, reorganization, or winding up of itself or
the composition or adjustment of its debts;
(b.) An action or proceeding shall be commenced, without the
application or consent of Marina, in any court of competent
jurisdiction for:
(i.) the liquidation, reorganization, dissolution, or
winding up of Marina of the composition or adjustment
of its debts,
(ii.) the appointment of a trustee, receiver, liquidator or
custodian of Marina or substantially of all its assets,
or
(iii.) any similar relief under any law relating to Marina's
bankruptcy or insolvency, provided such proceeding
shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall
be entered and continues unstayed for 90 days;
(c.) Any representation or warranty made by Marina and contained in
this Agreement shall prove to have been incorrect in any
material respect when made; or
(d.) Marina shall fail to:
(i.) timely make any undisputed payment required hereunder,
or
(ii.) timely deliver the Operations Guaranty Agreement as
required by Section 11.6 of this Agreement, or
(iii.) comply with any non-payment obligation under this
Agreement and shall fail to cure or remedy such default
within 30 days following notice and written demand by
Resorts to cure the same, or if such failure is not
curable within such 30 day period, Marina fails to
immediately initiate the actions necessary to cure such
failure, and diligently prosecute such actions until
cure is effectuated.
15.2 Resorts Default. Any one of the following events shall constitute an
"Event of Default" hereunder with respect to Resorts.
(a.) In connection with itself or its assets, Resorts shall:
(i.) apply for or consent to the appointment of or taking of
possession by a receiver or liquidator,
(ii.) make a general assignment for the benefit of creditors,
(iii.) file a petition of relief under the Federal Bankruptcy
Code or similar state law, or
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(iv.) take similar action to commence a proceeding for relief
under any other law relating to the bankruptcy,
insolvency, reorganization, or winding up of itself or
the composition or adjustment of its debts;
(b.) An action or proceeding shall be commenced, without the
application or consent of Resorts, in any court of competent
jurisdiction for:
(i.) the liquidation, reorganization, dissolution, or
winding up of the buyer or the composition or
adjustment of its debts,
(ii.) the appointment of a trustee, receiver, liquidator or
custodian of Resorts or substantially all of its
assets, or
(iii.) any similar relief under any law relating to Resorts'
bankruptcy or insolvency, provided such proceeding
shall continue undismissed or order, judgment or decree
approving or ordering any of the foregoing shall be
entered and continue unstayed for 90 days;
(c.) Any representation or warranty made by Resorts and contained
in this Agreement shall prove to have been incorrect in any
material respect when made by Resorts; or
(d.) Fail to timely make any undisputed payment required hereunder;
or
(e.) Fail to comply with any provision of this Agreement and shall
fail to cure or remedy such default within 30 days following
notice and written demand by Marina to cure the same, or if
such failure is not curable within such 30 day period, Resorts
fails to immediately initiate the actions necessary to cure
such failure such failure and diligently prosecute such
actions until cure is effectuated.
16. REMEDIES.
16.1 Marina's Remedies. Upon an Event of Default by Resorts, Marina may
declare Resorts to be in material breach of this Agreement and:
(a.) if the Event of Default is the failure to pay Energy Charges,
(i.) suspend service until Resorts either cures the default
or provides Marina with such assurances and security as
Marina may reasonably request; or
(ii.) terminate this Agreement by written notice to Resorts
and obtain payment from Resorts of the applicable
Termination Payment; or
(iii.) subject to the limitation provided in Section 16.3,
seek such relief to which Marina may be entitled at law
or equity;
(b.) if the Event of Default is other than the failure to pay
Energy Charges, subject to the limitation provided in Section
16.3, seek such relief to which Marina may be entitled at law
or equity other than termination of the Agreement or
suspension of Services.
16.2 Resorts' Remedies. Upon an Event of Default by Marina, Resorts may:
(a.) to the extent commercially practicable, cure the default by
Marina and obtain reimbursement (through direct cash payment,
credit, offset or otherwise as Resorts may elect) from Marina
for all costs and expenses incurred by Resorts in connection
with such cure,
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(b.) terminate this Agreement by written notice to Marina and, at
Resorts' option, pay Marina the Stipulated Value, whereupon
Marina will transfer title to the Improvements to Resorts, or
(c.) seek whatever relief to which Resorts may be entitled at law
or equity.
16.3 Limitations on Marina's Damages. Marina acknowledges and agrees that
in no event shall Marina be entitled to damages against Resorts for an Event of
Default by Resorts in excess of the applicable Termination Payment as of the
date of the Event of Default.
16.4 Limitation on Consequential Damages. Except in the case of willful
misconduct or gross negligence, neither Marina nor Resorts, nor their respective
officers, officials, partners, agents, employees, subsidiaries, parents or
affiliates shall be liable to the other party, or their respective officers,
officials, directors, partners, agents, employees, subsidiaries, parents or
affiliates for claims for incidental, special, direct or consequential damages
of any nature, including lost profits and opportunity costs in connection with
or resulting from performance or non-performance of their respective obligations
under or in connection with this Agreement. Nothing in this Section 16.4,
however, shall limit either party's rights or remedies to recover any direct
damages for a breach of this Agreement and liquidated damages as provided in
this Agreement.
17. FORCE MAJEURE.
17.1 Suspension of Performance. Neither Resorts nor Marina shall be in
default in respect of any obligation under this Agreement if the party is unable
to perform its obligation by reason of an event of Force Majeure, on the
condition that:
(a.) the suspension of performance shall be commensurate with the
nature and duration of the event of Force Majeure and the
non-performing party is using its best efforts to restore its
ability to perform; and
(b.) for so long as an event of Force Majeure relieves Marina of
its obligation to deliver Thermal Energy to Resorts as
required under this Agreement, Resorts may elect, without
being in default of its obligations hereunder, to produce its
own Thermal Energy or to purchase and accept deliveries of
Thermal Energy from any other source.
17.2 Termination by Reason of Force Majeure. Notwithstanding anything in
this Agreement contained to the contrary, if a party's performance is reasonably
expected to be suspended for more than one year, the other party may terminate
this Agreement upon 30 days written notice to the other, provided (with respect
to an event of Force Majeure by Marina) that upon such termination, Resorts is
able to generate its own Thermal Energy or to obtain Thermal Energy from a third
party. If the Agreement is terminated by reason of Force Majeure, Resorts shall
pay the Stipulated Value (less any insurance proceeds, if any, paid to Marina
resulting from the Force Majeure event) to Marina, which payment will be due at
the time of termination.
18. TERMINATION.
18.1 Termination Events. This Agreement shall terminate at the end of
the Term and may otherwise be sooner terminated only:
(a.) By Resorts in accordance with Section 7.5 upon the exercise by
Resorts of its non- performance termination right;
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(b.) by Resorts in accordance with Section 15.1 upon the occurrence
of an Event of Default by Marina;
(c.) by Resorts in accordance with Section 12 upon exercise by
Resorts of its purchase option;
(d.) by Resorts in accordance with Section 14.2 if recommended or
mandated by the Gaming Regulators;
(e.) by Marina in accordance with Section 15.2 upon the occurrence
of an Event of Default by Resorts; or
(f.) by either party in accordance with Section 17.2 by reason of
Force Majeure.
18.2 Payment by Resorts of Stipulated Value or Termination Payment.
(a.) If the Improvements are Completed. If the Improvements have
been completed and this Agreement is terminated under
subsection (a.), (b.), (d.), (e.), or (f.) of Section 18.1
above, and if not prohibited by the Gaming Regulators, then
Resorts will pay Marina the applicable Stipulated Value (less
any insurance proceeds received by Marina relating to the
event of termination) on or before the termination date.
(b.) If the Improvements are not Competed. If the Improvements have
been not been completed and Resorts is required under this
Agreement to pay Marina the Stipulated Value payment or
Termination Payment, then Resorts will pay Marina the
applicable pro rated Stipulated Value payment or applicable
pro rated Termination Payment, as the case maybe. Such payment
will be pro rated to reflect the percentage of the
Improvements that have been completed prior to termination
(less any insurance proceeds received by Marina relating to
the event of termination) and will be paid to Marina on or
before the termination date.
18.3 Surrender of Production Facilities Upon Termination. Upon the
expiration or earlier termination of this Agreement for any reason, Marina will
turn over the Production Facilities to Resorts in good operating order,
condition and repair as demanded by prudent engineering and operating practices,
and the following transactions shall occur concurrently:
(a.) If such termination occurs after the Service Commencement Date
and any Energy Charges remain unpaid, then Resorts shall pay
to Marina an amount equal to the unpaid Energy Charges.
(b.) If otherwise required by this Agreement, Resorts will pay
Marina the applicable Termination Payment or Stipulated Value
payment.
(c.) Marina shall convey to Resorts all of Marina's right, title
and interest in the Improvements, all improvements, fixtures,
personal property and equipment used in connection therewith,
free and clear of all liens and encumbrances; and Marina and
any lender of Marina that has a security interest in all or
part of the Improvements (a "Lender") shall promptly execute
any and all documents reasonably requested by Resorts to
effectuate such transfer of title.
(d.) Marina shall assign to Resorts Marina's interest in any
contracts requested by Resorts that relate to the operation
and maintenance of the Production Facilities (provided that
Resorts shall be under no obligation to request the assignment
of any such contracts).
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(e.) Marina shall grant to Resorts the right to enforce any
manufacturer's, supplier's, contractor's, subcontractor's,
repairman's or other warranty, whether expressed or implied,
or other legal rights Marina may have against third parties
regarding defects in materials or workmanship relating to the
Production Facilities or any portion thereof.
19. MISCELLANEOUS.
19.1 Resolution of Certain Disputes.
(a.) Agreement to Arbitrate. If there is a dispute between the
parties, authorized representatives of Marina and Resorts
shall meet and use good faith efforts to mutually resolve such
dispute by negotiation. If the parties are unable to resolve
such dispute by negotiation, then such dispute shall be
resolved by arbitration.
(b.) Rules of Arbitration. Any controversy, dispute or claim
between the parties hereunder, which the parties are unable to
resolve by negotiation, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"), then in effect and
to the extent not in conflict with provisions of this
Agreement and the provisions of this Section, and no suit at
law which seeks to resolve any such controversy, dispute or
claim between the parties shall be instituted by either party,
except where such suit is instituted to confirm, enforce or
collect an arbitration award received pursuant to this
Section. However, nothing contained in this Section shall
deprive either party of any right to: (i) obtain injunctive
relief in any court in the State of New Jersey, on an interim
basis if such relief is available under applicable law; or
(ii) assert any cross-claim or third-party claim in any suit
at law instituted by a third-party.
(c.) Location. Any controversy, dispute or claim submitted to
arbitration shall be settled by arbitration in Atlantic
County, New Jersey. Any award entered pursuant to such
arbitration shall be binding on both parties.
(d.) Number of Arbitrators. The controversy or claim to be
arbitrated shall be referred to one arbitrator agreed to by
the parties; provided, however, that if the parties cannot
agree on the selection of such arbitrator such controversy
shall be referred to three arbitrators, one to be selected by
each party and the third ("Third Arbitrator") also to be
selected by the parties, or, in the absence of their
agreement, by the two arbitrators selected by the parties, or,
in the event such arbitrators cannot agree, by the AAA. The
selections to be made by the parties shall be made from the
list of the National Panel of Arbitrators maintained by the
AAA. The Third Arbitrator shall be qualified to pass on any
technical or engineering matters and shall be independent of,
and acceptable to, both Marina and Resorts. All decisions and
awards shall be made by a majority of the arbitrators, except
for decisions relating to discovery as set forth herein.
(e.) Successor Arbitrator. If any arbitrator dies, or refuses to
act, or becomes incapable, incompetent or unfit to act before
hearings have been completed or before an award has been
rendered, a successor arbitrator may be selected by the party
who originally made the selection. The selection of the
successor arbitrator shall be made consistent with the
selection procedure set forth in the preceding Section.
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(f.) Applicable Law. The arbitrators selected pursuant to this
Agreement shall be governed by and apply the laws of the State
of New Jersey and federal law, as applicable, in conducting
any arbitration proceeding and in making any award.
(g.) Notice. Notice of a demand for arbitration (hereinafter
referred to as a "Demand for Arbitration") of any controversy
or dispute submitted by the parties for resolution pursuant to
this Section shall be filed in writing with the AAA by the
party seeking arbitration and a copy of same shall be served
contemporaneously with such filing on the other party. The
notice shall state, with specificity, the nature of the
dispute and the remedy sought. After such notice has been
filed, the parties may make discovery of any matter relevant
to such dispute before the hearing, to the extent and in the
manner provided by the rules governing the courts of the State
of New Jersey. Any question that may arise with respect to the
obligations of the parties relative to discovery and/or
relative to the protection of the discovery materials shall be
referred solely to the sole arbitrator, or if the controversy
is before three arbitrators, the Third Arbitrator and its
determination shall be final and conclusive. Discovery shall
be completed not later than 30 days after filing of the notice
of arbitration unless such period for discovery is extended by
the Third Arbitrator, upon a showing of good cause by either
Party.
(h.) Evidence; Record. The arbitrators may consider only material
which is relevant to the subject matter of any such
controversy. A stenographic record shall be made of any
arbitration hearing.
(i.) Costs. Any costs associated with any arbitration under this
Section, including, but not limited to, attorneys' fees and
witness expenses, shall be paid by the Party against whom an
award is entered unless the arbitrators by their award
otherwise provide.
(j.) Agreement Controlling. Arbitration may not be utilized and the
arbitrators selected in accordance with this Section shall not
possess the authority or power to alter, amend or modify any
of the terms or conditions or charges set forth in this
Agreement, and further, the arbitrators may not enter any
award which alters, amends or modifies the terms, conditions
or charges under this Agreement in any form or manner.
(k.) Continued Performance. Neither party shall suspend or
otherwise fail to perform its obligations under this Agreement
pending the outcome of such dispute resolution process.
19.2 Assignments Generally. Neither this Agreement nor any rights,
duties, interests or obligations hereunder, may be transferred, pledged or
otherwise encumbered or disposed of without the prior written consent of the
other party. Notwithstanding the above, Resorts may assign its rights and
delegate its obligations under this Agreement to a purchaser of the Production
Facilities so long as:
(a.) such purchaser agrees to assume Resorts' obligations under
this Agreement in a document reasonably satisfactory to
Marina;
(b.) all amounts due and payable by Resorts to Marina under this
Agreement have been paid or provision for payment thereof by
purchaser has been made; and
(c.) the purchaser shall have a credit rating and overall
creditworthiness equal to or better than Resorts had as of the
Effective Date of this Agreement.
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Such purchase shall release Resorts of its obligations under this
Agreement, as of the date of such assignment.
19.3 Notice. All notices hereunder shall be sufficient if sent by
registered or certified mail postage prepaid, addressed, if to
Marina:
Marina Energy, LLC
South Jersey Plaza
Folsom, New Jersey 08037
Attention: President - Marina Energy, LLC
and if to Resorts:
Resorts International Hotel, Inc.
Boardwalk and North Carolina Avenue,
Atlantic City, New Jersey 08401
Attention: President and Chief Operating Officer
With a copy to:
Graham Curtin & Sheridan, P.A.
4 Headquarters Plaza
P.O. Box 1991
Morristown, NJ 07962-1991
Attention: Peter Michael Laughlin, Esq.
provided that either Marina or Resorts may by like notice designate any further
or different address or addresses or person to which notices shall be sent.
19.4 Estoppel Certificates. Upon the reasonable prior request by Resorts,
Marina shall furnish to Resorts an estoppel agreement substantially in the form
set forth as Schedule 8 signed by an individual having the office of vice
president or higher in Marina. Upon the reasonable prior request by Marina,
Resorts shall furnish to Marina an estoppel agreement substantially in the form
set forth as Schedule 9 signed by an individual having the office of vice
president or higher in Resorts. Any such certificate so furnished may be relied
upon by the requesting party, and any existing or prospective mortgagee,
purchaser or lender, and any accountant or auditor, of, from or to the
requesting party.
19.5 Confidentiality. Each of the parties agrees to hold in confidence
any information supplied to it by the other and designated in writing as
confidential unless the recipient is required to disclose the information as a
matter of law, in which case, the recipient shall give the other party prior
written notice.
19.6 Counterparts. This Agreement may be executed in separate and several
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
19.7 Severability. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction and to the
fullest extent permitted by applicable law, be ineffective to the extent of such
prohibition or
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unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of any provision in any other
jurisdiction.
19.8 Independent Contractor Status. Marina is, and shall perform its
Services under this Agreement as, an independent contractor, and shall not act,
nor be deemed to be, an agent, member, employee, partner, joint venturer or
legal representative of Resorts. Marina has no authority to assume or create any
commitment or obligation on behalf of Resorts or bind Resorts in any respect
whatsoever. Subject to the requirements of this Agreement, Marina shall have
sole control, supervision, direction and responsibility over its employees and
the manner and means of providing Services. Neither Marina nor its employees
shall be entitled to any of the benefits, to which employees of Resorts may be
entitled, such as group life, health and similar medical plans, savings plans,
incentive compensation plans, vacations, sick pay or similar benefits, and
Marina shall be solely responsible for the same. Resorts agrees not to solicit
for employment or employ any of Marina's employees during the Term.
19.9 Governing Law. This Agreement shall be construed in accordance with
and shall be enforceable under the laws of the State of New Jersey.
19.10 Entire Agreement. The Agreement constitutes the entire agreement
between the parties with respect to the matters contained herein and all prior
agreements with respect thereto are superseded hereby. No amendment or
modification hereof shall be binding unless duly executed by both parties.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered as of the date and day first above written.
MARINA ENERGY, LLC
By: /s/ Edward J. Graham
---------------------
Name: Edward J. Graham
Title: President
RESORTS INTERNATIONAL HOTEL, INC.
By: /s/ Audrey S. Oswell
---------------------
Name: Audrey S. Oswell
Title: President and Chief Operating Officer
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