EXHIBIT 4.3.3
EXHIBIT
9. AUTOMATED POWER EXCHANGE
SETTLEMENT ACCOUNT AGREEMENT
APPENDIX C
FORM SETTLEMENT ACCOUNT AGREEMENT
This Settlement Account Agreement (as amended, modified or supplemented
from time to time, this "Agreement") is entered into as of this 9th day of
March, 1998, by and among AUTOMATED POWER EXCHANGE, INC., a California
corporation ("APX"), BANKERS TRUST COMPANY, a New York state chartered bank (the
"Depository and Clearing Agent") and the person which executes this Agreement on
the signature page hereto as the "Participant".
RECITALS
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A. APX and the Participant are parties to that certain Automated Power
Exchange Service and Participation Agreement dated as of March 9th, 1998 (the
"Service Agreement"). Pursuant to the Service Agreement, APX and the Participant
are bound by the Automated Power Exchange Terms and Conditions of Service,
effective as of December 19, 1997 (as such terms and conditions may be amended,
modified or supplemented from time to time, the "APX Terms"). Capitalized terms
used herein without definition shall have the meanings assigned thereto in the
APX Terms.
B. The APX Terms require that a Settlement Account be established and
maintained with the Depository and Clearing Agent, into which account the
Participant shall fund, on or before the applicable Payment Due Date, all
payments required to be made under the APX Terms on such Payment Due Date.
C. APX, the Depository and Clearing Agent and the Participant (each, a
"Party" and collectively, the "Parties") each intend and agree that the
Participant shall relinquish all of its right, title and interest in and to
funds deposited in the Settlement Account, with the intended result that upon
the occurrence of any Insolvency Proceeding relating to the Participant, the
Settlement Account will not be subject to the automatic stay pursuant to Section
362 of Title 11, United States Code (the "Bankruptcy Code").
D. The Depository and Clearing Agent has agreed to provide certain
services as agent for and on behalf of APX in connection with the Settlement
Account as more fully set forth in this Agreement.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing and the mutual
promises and covenants hereinafter set forth, APX, the Depository and Clearing
Agent and the Participant each agree as follows:
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1. DEFINITIONS.
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"SETTLEMENT ACCOUNT" means the account maintained by the
Depository and Clearing Agent in the name of APX for the purpose of tracking the
funds on deposit from time to time which support the Participant's obligations
to pay all outstanding liabilities under the APX Terms on each Payment Due Date.
2. DUTIES OF PARTIES.
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2.1 APPOINTMENT. APX hereby appoints the Depository and
Clearing Agent to act as its agent for the purpose of maintaining the Settlement
Account, and the Depository and Clearing Agent hereby accepts such appointment.
The Participant hereby acknowledges and agrees to such appointment.
2.2 DEPOSIT OF FUNDS. The Participant shall from time to time
deliver to the Depository and Clearing Agent funds for deposit in the Settlement
Account. The Depository and Clearing Agent agrees to deposit any such funds in
the Settlement Account, and thereafter to hold such funds as bailee and agent
exclusively for APX. Upon any such deposit of funds by the Participant, the
Participant shall relinquish all of its right, title and interest to such funds.
2.3 ACCOUNT BOOKS AND RECORDS; STATEMENTS. The Depository and
Clearing Agent shall maintain books and records identifying all of the funds on
deposit from time to time in the Settlement Account. Not less frequently than
once each calendar month, the Depository and Clearing Agent shall provide APX
with a statement showing the activity in the Settlement Account during the
preceding calendar month, including any interest credit made pursuant to Section
2.4. APX shall make available to the Participant the information contained in
such statement.
2.4 INTEREST CREDIT. The Settlement Account shall be
maintained as a separate account, which shall bear interest at the rate
negotiated from time to time between APX and the Depository and Clearing Agent.
On the tenth Business Day of each month, a credit shall be made to the
Settlement Account in an amount equal to the interest earned on funds deposited
in the Settlement Account more than one Business Day prior to transfer of such
funds out of the Settlement Account, including pursuant to Section 2.5 or
Section 2.7. Not less frequently than annually, APX shall direct the Depository
and Clearing Agent to distribute to the Participant, to the extent that
sufficient funds remain in the Settlement Account, an amount equal to the
interest credits made pursuant to Section 2.4 with respect to funds remaining on
deposit in the Settlement Account for more than one Business Day.
2.5 WITHDRAWALS FROM THE SETTLEMENT ACCOUNT. The Parties agree
that on each Payment Due Date, the Depository and Clearing Agent shall withdraw
funds from the Settlement Account in an amount equal to the Participant's
obligations due on such date, and the Depository and Clearing Agent shall
deposit such funds in the Clearing Account. Except as otherwise agreed by APX
and the Participant or as otherwise provided in Section 2.4 above or Section 2.6
below, no Party may initiate any withdrawals from the Settlement Account.
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2.6 REFUND OF BALANCE IN THE SETTLEMENT ACCOUNT. At the
request of the Participant in connection with any overfunding of the Settlement
Account (in an amount in excess of the amount expected to be due on the next
Payment Due Date) or if the Participant is no longer a Participant in the APX
Markets and no longer has any remaining liabilities under the APX Terms, APX
shall direct the Depository and Clearing Agent to distribute to the Participant
all or any portion of the balance reflected in the Settlement Account. Upon
receipt of such funds by the Participant, APX shall automatically and without
further action by any Party relinquish all of its right, title and interest in
and to such funds. Any security interest which attached with respect to such
funds pursuant to Section 3 shall automatically terminate upon receipt of such
funds by the Participant without further action by any Party.
3. SECURITY INTEREST.
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The Parties each intend and agree that the Participant shall
relinquish all of its right, title and interest in and to funds deposited in the
Settlement Account, with the intended result that upon the occurrence of any
Insolvency Proceeding relating to the Participant, the Settlement Account will
not be subject to the automatic stay pursuant to the Bankruptcy Code.
Notwithstanding the foregoing (and in the event that the Participant is
determined to have any right, title or interest in the Settlement Account), the
Participant hereby grants to APX a security interest in any right, title or
interest of the Participant in and to funds deposited and on deposit from time
to time in the Settlement Account, together with all proceeds thereof, to secure
its obligations under the Service Agreement and the APX Terms, including its
obligations to other Participants and the ISO, and to secure its obligations
under any other agreement to which the Participant and APX are party. The
Depository and Clearing Agent acknowledges the grant of such security interest,
and agrees to accept instructions with respect to the Settlement Account from
APX only (and not from the Participant).
4. INDEMNIFICATION OF THE DEPOSITORY AND CLEARING AGENT.
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4.1 INDEMNIFICATION. Each Participant agrees to indemnify and
hold harmless the Depository and Clearing Agent from and against any and all
loss, liability, cost, damage and expense, including, without limitation,
reasonable attorneys' fees which the Depository and Clearing Agent may suffer or
incur by reason of any action, claim or proceeding brought against the
Depository and Clearing Agent arising out of or relating in any way to this
Agreement or any transaction to which this Agreement relates unless such action,
claim or proceeding is the result of gross negligence or willful misconduct by
the Depository and Clearing Agent.
4.2 NO DUTY TO DEFEND. The Depository and Clearing Agent shall
be under no duty to institute or defend any type of proceeding which may arise
regarding this Agreement.
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5. DUTIES LIMITED.
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The Depository and Clearing Agent undertakes for the benefit
of APX and the Participant to perform only the duties expressly set forth in
this Agreement and such other responsibilities incidental to the performance of
its service as contemplated herein. The Participant acknowledges and agrees that
APX and the Depository and Clearing Agent are party to certain other agreements
relating to the APX Markets, that the Participant has no rights or obligations
under any such other agreement, and that it is not an intended third party
beneficiary of any such agreement.
6. THE DEPOSITORY AND CLEARING AGENT FEES.
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The Depository and Clearing Agent shall be entitled to
compensation for its services under this Agreement in accordance with the fee
schedule negotiated from time to time by APX and the Depository and Clearing
Agent. The APX Terms provide that the Participant shall be responsible to
deposit funds for payment of such fees to the Settlement Account on or before
each Payment Due Date.
7. FEDERAL POWER AGENCIES.
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[Include only if the Participant is a Federal Power Agency.]
7.1 LIMITATION OF LIABILITY. Claims against the United States
under this Agreement are subject in all respect to applicable acts of Congress
and to regulations of the Secretary of Energy established thereunder, including
but not limited to the statutory limitations on the liability of the United
States under the Federal Tort Claims Act, the Tucker Act and the Equal Access to
Justice Act.
7.2 APPROPRIATIONS. Notwithstanding anything else herein to
the contrary, where the obligations of this Agreement extend beyond the current
fiscal year, participation by the United States is contingent upon Congress
making the necessary appropriation for expenditures by the United States after
such current year shall have expired. In case such appropriations necessary to
carry out obligations of the United States under this Agreement are not made,
the Participants release the United States from all liability due to the failure
of Congress to make such appropriation. The provisions of this Section 7.2 are
not intended to release any claims against the United States that may be made
under the Federal Tort Claims Act, the Tucker Act or the Equal Access to Justice
Act.
7.3 PRIVATIZATION. The provisions of this Section VII shall
not apply to any governmental or quasi-governmental agency that is privatized or
otherwise ceases to be owned by the United States.
8. EFFECTIVE DATE; TERM; RESIGNATION AND REPLACEMENT OF THE
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DEPOSITORY AND CLEARING AGENT.
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8.1 EFFECTIVE DATE. The Agreement shall become effective upon
the execution and delivery of a counterpart hereof by each Party hereto.
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8.2 TERM. This Agreement shall remain in full force and effect
unless and until the Participant is no longer a Participant in the APX Markets
and no longer has any remaining liabilities under the APX Terms.
8.3 RESIGNATION BY THE DEPOSITORY AND CLEARING AGENT. The
Depository and Clearing Agent may resign at any time upon not less than thirty
(30) days prior written notice to the Participant and APX.
8.4 REPLACEMENT OF THE DEPOSITORY AND CLEARING AGENT. Under
certain circumstances as separately agreed between APX and the Depository and
Clearing Agent, APX has the right to replace the Depository and Clearing Agent.
If APX exercises such right, APX shall name a new Depository and Clearing Agent
which shall perform the functions of the Depository and Clearing Agent
hereunder.
8.5 SUCCESSOR DEPOSITORY AND CLEARING AGENT(S). Any successor
to the Depository and Clearing Agent shall have capital and surplus in excess of
$250,000,000. Any resignation or replacement pursuant to Section 8.3 or Section
8.4 shall become effective upon the appointment of a successor to such Party by
APX, and the delivery by the resigning Depository and Clearing Agent to its
successor all funds on deposit in the Settlement Account.
9. MISCELLANEOUS.
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9.1 COMPLIANCE WITH LAWS, RULES AND REGULATIONS.
Notwithstanding anything in this Agreement to the contrary, the Depository and
Clearing Agent shall refrain from any action which, in its reasonable judgment,
or in the judgment of APX of which the Depository and Clearing Agent has written
notice, would violate any law, rule or regulation of any governmental body or
agency having jurisdiction over APX or the Participant.
9.2 AMENDMENTS. This Agreement shall not be modified or
amended without the consent of each Party, which consent must be evidenced by an
instrument in writing executed by each Party, or by their respective successors
or permitted assigns.
9.3 SEVERABILITY. In the event that any one or more of the
provisions of this Agreement shall for any reason be held to be unenforceable in
any respect, such unenforceability shall not affect any other provision of this
Agreement that can be given effect without the unenforceable provision, and this
Agreement shall be construed as if such unenforceable provision or provisions
had never been contained herein.
9.4 APX TERMS. In the event of any inconsistency between this
Agreement and the Service Agreement and/or the APX Terms, as between APX and the
Participant, the provisions of the Service Agreement and/or the APX Terms (the
case may be) shall govern the rights and obligations of such Parties.
9.5 CUMULATIVE REMEDIES. The remedies provided under this
Agreement shall be cumulative and not exclusive, and the election of one remedy
shall not preclude pursuit of other remedies.
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9.6 ENFORCEMENT AND WAIVER. Any waiver of any provision of
this Agreement must be in writing and will not be implied by any usage of trade,
course of dealing or course of performance. Any delay or failure of a Parry to
exercise, or any partial exercise of, such Party's rights and remedies under
this Agreement shall not operate to limit or otherwise affect such rights or
remedies. Any waiver of performance hereunder shall be limited to the specific
performance waived and shall not, unless otherwise expressly stated in writing,
constitute a continuous waiver or a waiver of future performance.
9.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the Parties hereto and their respective
successors and permitted assigns (including any successor to the Depository and
Clearing Agent pursuant to Section 8). Except as contemplated by Section 8, no
Party shall assign or delegate any of its rights or obligations under this
Agreement without the prior written consent of the other Parties and any such
attempted assignment or delegation shall be void and of no force or effect.
9.8 INDEPENDENT PARTIES. Nothing in this Agreement shall be
construed or represented as creating a partnership, trust, fiduciary or any
similar relationship between or among the parties hereto. Except as expressly
set forth herein, no Party is authorized to act on behalf of the other Party and
none shall be considered the agent of the other.
9.9 NOTICES. Notices or consents of any kind required or
permitted under this Agreement shall be in writing and shall be deemed duly
delivered if delivered in person or if mailed by certified mail, return receipt
requested, telegraph, postage prepaid, or by Fax Transmission with receipt
retained by sender, to the appropriate Party as follows:
If to the Depository and Clearing Agent:
Bankers Trust Company
One Bankers Trust Plaza
NewYork, New York 10015
Phone: (212) 250-8566
Fax: (212) 669-0882
If to APX:
Automated Power Exchange, Inc.
26340 Alexander Place
Los Altos Hills, California 94022
Phone: (650) 949-1672
Fax: (650) 949-2859
If to the Participant: To the address on the
signature page of this Agreement
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Any Party from time to time may change its address for the purpose of notices to
that Party by giving a similar notice specifying a new address.
9.10 FURTHER ASSURANCES. Each Party shall do all necessary
acts and make, execute, and deliver such written instruments as shall from time
to time be reasonably required to carry out the terms of this Agreement.
9.11 TIME IS OF THE ESSENCE. Each Party hereby expressly
acknowledges that time is of the essence in the performance of its respective
obligations under this Agreement.
9.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, IRRESPECTIVE OF
CHOICE OF LAW RULES THAT DIRECT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION. Any legal action or proceeding with respect to this Agreement must
be brought in the courts of the State of California or of the United States for
the Northern District of California. By execution and delivery of this
Agreement, each Party consents, for itself and in respect of its property, to
the exclusive jurisdiction of those courts. Each Party irrevocably waives any
objection, including any objection to the laying of venue or based on the
grounds of FORUM NON CONVENIENS, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in respect of this
Agreement or any document related thereto.
9.13 CROSS DEFAULT. Any default under this Agreement by APX or
the Participant shall be considered a default of the APX Terms and the
Settlement Account Agreement and shall entitle APX and/or the Participant, as
applicable, to exercise the rights as are available herein and therein.
9.14 SURVIVAL OF RIGHTS. Any provisions of this Agreement
which contemplates performance or observance subsequent to termination shall
survive any such termination and shall continue in full force and effect.
9.15 HEADINGS. Section headings and subheadings contained in
this Agreement are for ease of reference only and shall not affect the
substantive interpretation of this Agreement.
9.16 CONSTRUCTION. No provision of this Agreement shall be
construed or interpreted for or against APX because APX drafted or caused its
legal representative to draft the provision.
9.17 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of APX, the Depository and Clearing
Agent, and the Participant has caused this Agreement to be executed by its duly
authorized officer as of this 26 day of March, 1998.
APX: AUTOMATED POWER EXCHANGE, INC.
BY: /S/ EDWARED G. CAZALET
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NAME: EDWARED G. CAZALET
TITLE: CEO
DEPOSITORY AND CLEARING BANKERS TRUST COMPANY
AGENT:
BY: /S/ GREGORY B. DUFFY
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NAME: GREGORY B. DUFFY
TITLE: MANAGING DIRECTOR
PARTICIPANT: POWERSOURCE, LTD.
BY: /S/ ROMAN GORDON
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NAME: ROMAN GORDON
TITLE: DIRECTOR
Address of Participant:
8306 Wilshire Blvd., Suite 634
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Beverly Hills, CA 90211
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Telephone: (310) 854-4343
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Telecopy: (213) 658-6601
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