EXHIBIT 4.3.1.
EXHIBIT
7. AUTOMATED POWER EXCHANGE SERVICE
&
PARTICIPATION AGREEMENT
AUTOMATED POWER EXCHANGE
SERVICE AND PARTICIPATION AGREEMENT
THIS AUTOMATED POWER EXCHANGE SERVICE AND PARTICIPATION AGREEMENT
("Service Agreement") is made and entered into this 9th day of March, 1998 by
and between Automated Power Exchange, Inc., a California corporation ("APX"),
and PowerSource Ltd., a Nevada Corporation ("Participant"). APX and the
Participant are sometimes referred to herein individually as a "Party" and
collectively as the "Parties."
WHEREAS:
A. APX operates information exchanges in which Participants are able to
buy and sell electricity at APX Market Prices.
B. APX also serves as a Scheduling Coordinator with the California
Independent System Operator Corporation for Generating Units and Loads
that are registered with APX by Participants.
C. The Participant desires to enter into this Service Agreement in order
to be able to utilize the APX Services from time to time in accordance
with the terms hereof.
NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein, the Parties agree and intend to be bound as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS. Except as otherwise defined herein,
initially-capitalized terms used in this Service Agreement
have the meanings set forth in Section 2.1 of the Automated
Power Exchange Terms and Conditions of Service, together with
any appendices or attachments thereto, as amended or modified
from time to time ("APX Terms").
1.2. INTERPRETATION. The rules of interpretation set forth in
Section 2.2 of the APX Terms shall apply to this Service
Agreement.
2. USE OF APX SERVICES
2.1. Upon execution of this Service Agreement and satisfaction of
the conditions of eligibility set forth in Section 3 of the
APX Terms, the Participant shall be eligible to use the APX
Services. 2.2. This Service Agreement does not obligate the
Participant to use any APX Service.
3. TERMS AND CONDITIONS OF SERVICE
3.1. The APX Terms are incorporated herein and made a part of this
Service Agreement.
3.2. APX and the Participant agree that:
3.2.1. The APX Terms, this Service Agreement, and any rules,
regulations or orders duly promulgated from time to
time by APX shall govern the Participant's use of any
APX Service;
3.2.2. APX and the Participant will abide by the APX Terms
and any rules, regulations and orders duly
promulgated by APX in respect of all matters relating
to the Participant's use of any APX Service; and
3.2.3. The Participant's eligibility to use the APX Services
is at all times subject to the APX Terms and any
rules, regulations and orders duly promulgated by
APX, and may be revoked in accordance with the APX
Terms.
3.3. APX may amend or modify the APX Terms from time to time in
accordance with the procedures set forth in Section 13 of the
APX Terms. Any such amendment or modification shall be binding
upon the Participant in accordance with Section 13 of the APX
Terms.
4. TERM AND TERMINATION
4.1. This Service Agreement shall become effective on the date set
forth in the introductory paragraph and shall remain in effect
unless terminated in accordance with the provisions set forth
in Section 15 of the APX Terms.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each Party represents and warrants to the other Party the
following:
5.1.1. AUTHORITY. The execution, delivery and performance by
each Party of this Service Agreement are within the
Party's powers, have been duly authorized by all
necessary corporate or other action, and do not and
will not violate the terms or conditions in the
Party's governing documents, any material contract to
which the Party is a party, or any applicable Laws.
5.1.2. BINDING OBLIGATIONS. This Service Agreement
constitutes the legal, valid and binding obligations
of each Party, enforceable against the Party in
accordance with its terms, except as enforceability
may be limited by applicable bankruptcy or similar
laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to
enforceability.
6. TRANSFER AND ASSIGNMENT
6.1. Neither Party shall assign any of its rights nor delegate any
of its obligations under this Service Agreement without the
prior written consent of the other Party, which consent shall
not be withheld or delayed unreasonably. Any prohibited
assignment or delegation shall be void.
7. ELECTRONIC CONTRACTING
7.1. All submitted applications, schedules, bids, confirmations,
changes to information on file with APX, notices and other
communications conducted via electronic transfer, including
without limitation, direct computer link, bulletin board,
e-mail, facsimile or any other means established by APX, shall
invoke the same legal rights, responsibilities, obligations
and other implications set forth in the APX Terms as if
executed in written format.
8. MISCELLANEOUS
8.1. NOTICES. Except as otherwise specified herein or in the APX
Terms, notices provided under the terms of this Service
Agreement shall be in writing and transmitted by mail,
overnight courier, or facsimile. Notices to APX shall be
addressed to:
Automated Power Exchange, Inc.
26340 Alexander Place
Los Altos Hills, CA 94022
Attention: Contracts Department
Phone: (650) 949-1672 Fax: (650) 949-2859
E-mail: contracts@energy-exchange.com
Notices to the Participant shall be addressed to the
representative at the address specified in Appendix 1 of this
Service Agreement
8.2. ENTIRE AGREEMENT. This Service Agreement and all attachments
hereto, and the APX Terms embody the entire agreement and
understanding of the Parties; and supersede all prior or
contemporaneous agreements and understandings of the Parties,
verbal or written, relating to the subject matter hereof.
8.3. GOVERNING LAWS. This Service Agreement shall be governed by,
and construed in accordance with, the laws of the State of
California, irrespective of choice of law rules.
8.4. INDEPENDENT PARTIES. Nothing in this Service Agreement shall
be construed or represented as creating a partnership, trust,
fiduciary or any similar relationship among the Parties.
Except as set forth in the APX Terms, no Party is authorized
to act on behalf of the other Party and none shall be
considered the agent of the other.
8.5. NO THIRD-PARTY BENEFICIARIES. This Service Agreement is made
and entered into for the sole protection and legal benefit of
the Parties and their permitted successors and assigns, and no
other person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in
connection with, this Service Agreement
8.6. AMENDMENT. This Service Agreement is subject to modification
by a modification of the APX Terms. In all other respects,
this Service Agreement shall only be modified or amended by a
written instrument executed by the Parties and shall not be
modified by course of performance or any usage of trade.
8.7. SEVERABILITY. The illegality or unenforceability of any
provision of this Service Agreement or any instrument or
agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining
provisions of this Service Agreement or any instrument or
agreement required hereunder.
8.8. COUNTERPARTS. This Service Agreement may be executed many
number of separate counterparts, which shall be deemed to
constitute one instrument.
The authorized representatives of the Parties have executed this Service
Agreement as of the date first set forth above.
AUTOMATED POWER EXCHANGE POWERSOURCE, LTD.
BY: /S/ JACK ELL BY: ROMAN GORDON
- ---------------- ----------------
TITLE: EXECUTIVE V.P. TITLE: DIRECTOR
- --------------------- ---------------
DATE: 3/13/98 DATE: 3/9/98
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APPENDIX 1
Name of the Participant: Roman Gordon
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Representative: German Teitelbaum
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Illya Bond
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Address: 8306 Wilshire Blvd., Suite 634
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Beverly Hills, CA 90211
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E-mail address: megasource@worldnett.att.net
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Telephone number: (310) 854-4343
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Facsimile number: (888) 340-8274
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