Exhibit 10.02
SALES AGREEMENT FOR 1 (ONE)
PRATT AND WHTINEY GG4A-7 GAS TURBINE
This agreement dated April 26, 2002 is made by and between AES Alamitos L.L.C.
whose address is 690 Studebaker Road, California, referred as a "Seller" and
Mid-Power Service Corporation, whose address is 3800 Howard Hughes Parkway, Las
Vegas, Nevada 89109, referred as a "Buyer".
1. Contract Formation. By this Agreement, Seller offers to enter into a contract
with Buyer solely upon the terms and conditions stated herein. Any additional or
different terms and conditions proposed by Buyer prior to the execution of this
Agreement are hereby expressly rejected. Any additional or different terms and
conditions proposed by Buyer after the date of this Agreement shall be of no
force and effect unless expressly agreed to in writing by Seller. Buyer accepts
and shall be bound by the terms and conditions of this Agreement upon the
earlier of (1) the date on which it executes and returns the acknowledgment copy
or (2) when it commences performance. No other form of acceptance shall be
binding on Seller. Herby, Seller agrees to sell and Buyer agrees to buy
equipment described in article 2.
2. Equipment for Sale, Price of equipment. Seller is the owner of the following
assets: 1 ea GG4A-7 non-flight Pratt and Whitney turbine engine, referred as
"Equipment" whose serial number is - "675109". Total sale price of Equipment
excluding taxes, fees and other applicable charges is $450,000 (Four Hundred
Fifty Thousand US dollars). Buyer shall pay all transfer and sales taxes, fees
and all other applicable charges required by federal, state and local rules and
regulations.
3. Terms and method of payment. Payment shall be made by certified check
presented on the date of sale. If in Seller's judgment Buyer's financial
condition does not justify the terms of payment specified herein, Seller may
cancel this contract.
4. Title and Delivery. Unless otherwise set forth on the face of this Sales
Agreement, equipment shall be delivered F.O.B. Seller's Plant, and title and
liability for loss or damage shall pass to Buyer upon Seller's tender of
delivery of the goods to carrier for shipment to Buyer. Any loss or damage
thereafter shall not relieve Buyer from any obligations hereunder. Buyer shall
bear all insurance and transportation expenses, including but not limited to,
responsibility for any associated taxes, duties and other expenses incurred and
documentation, licenses, or clearances required at port to entry and
destination. Buyer shall pay $20,000 deposit for 1 (one) shipping frame provided
by Seller upon Buyer's request. The shipping frame shall be returned within 30
days from the date of the equipment delivery. The shipping frame deposit return
terms shall be net 30 days from the date of the shipping frame delivery to the
Seller's plant. Buyer shall pay all expenses related to usage and return of the
shipping frame.
Seller shall indemnify Buyer up to the full amount of the Purchase
Price from and against any claim successfully brought by any third party under
California Civil Code ss. 3440, et seq. to avoid the transfer of the Equipment.
5. Disclaimer of warranties and indemnities.
5.1 Equipment described in article 2 shall be sold in "AS IS, WHERE IS"
condition with no warranty expressed or implied. Seller makes no
warranties expressed or implied, including but not limited to, any
expressed or implied warranty or merchantability or fitness for a
particular purpose whatsoever as to the equipment sold to Buyer
hereunder, and does not indemnify Buyer against infringement of any
patent, trademark or copyright. Seller's disclaimer of warranties as
hereinabove set forth shall not be diminished or affected by, and no
obligation or liability shall arises or grow out of, Seller's rendering
of technical advice or service in connection with equipment furnished
hereunder.
5.2 Seller is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of California and has
full power and authority to own, lease, and operate its properties and
to carry on its business as it is now being conducted and to sell the
goods described herein.
5.3 Seller has all necessary power and authority and has taken all action
necessary to enter into this Agreement to consummate the transaction
contemplated hereby and to perform its obligations hereunder. This
Agreement has been duly executed and delivered by Seller and is a valid
and binding obligation of Seller, enforceable against it in accordance
its respective terms subject to the effect of applicable bankruptcy,
insolvency, reorganization and other similar laws relating to or
affecting the rights of creditors generally and limitations imposed by
equitable principals, whether considered in a proceeding at law or in
equity, and at the discretion of the court for which any proceeding
therefore may be brought.
5.4 To the best of Seller's knowledge there are no legal actins, suits,
investigations or proceedings at law or in equity or before or by any
governmental authority or instrumentality or before any arbitrator of
any kind, pending, or, to Seller's knowledge, threatened, against
Seller which, if determined adversely against Seller, would have a
material adverse effect on Seller's ability to sell the goods to Buyer.
5.5 Seller has good, valid and marketable title to the goods, free and
clear of all mortgages, liens, pledges, security interests, charges,
claims, restrictions and other encumbrances and defects of title of any
nature whatsoever. To Seller's knowledge and belief, all licenses,
permits and authorizations in any manner related to the goods and
agreements pursuant to which Seller has obtained the rights to use the
goods are in good standing, valid and effective in accordance with
their respective terms, and there is not under any such instruments,
documents or agreements any existing default or event which notice or
lapse of time, or both, would constitute a default.
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6. Indemnity. Buyer agrees to defend, indemnify and hold harmless Seller, its
officers, agents and employees from and against all claims, losses, costs,
expenses, damages arising form or related to property damage, economic injury,
or bodily injury (including death) or should this be of whatsoever kind or
nature arising out of Buyer's, its employee's, officer's and agents' removal
form Seller's site, use or misuse, transportation, storage and disposal of the
equipment sold by Buyer hereunder. Buyer shall indemnify Seller of any sales
taxes arising from this agreement.
7. Time. Time is expressly agreed to be of the essence of this Agreement and
each and every and all of the terms and conditions and provisions herein.
8. Governing Law. The formation, interpretation and performance of this
Agreement shall be governed by the internal laws of the State of California,
including, expect to the extent that the terms and conditions of this Agreement
are clearly inconsistent therewith, any applicable provisions of California's
Uniform Commercial Code.
9. Compliance with Laws. Buyer represents and warrants that it is familiar with,
and at all times shall comply with all applicable federal, state, and local
laws, ordinances, rules, regulations, and executive orders, and applicable
safety orders, and all orders or decrees of administrative agencies, courts, or
other legally constituted authorities having jurisdiction or authority over
Seller, Buyer, or the equipment furnished under this Agreement, which may now or
hereafter exist.
10. Cancellation.
10.1 Seller may terminate all or any part of this Agreement upon the
occurrence of any of the following events: (1) Buyer becomes bankrupt or
insolvent: or (2) Buyer fails to perform or violates any of the provisions of
this Agreement. Upon such termination Buyer shall be liable to Seller for any
and all loss, damage, penalties and excess cost incurred by Seller caused by
Buyer's failure to execute the requirements of this order. The remedies herein
shall be inclusive and additional to any other remedies in law or equity, and
not action by Buyer shall constitute waiver of any such right or remedy.
10.2 Seller may suspend or terminate all or any part of this Agreement
at any time for its sole convenience by written notice to Buyer. Termination
shall be effective upon actual receipt by Buyer or its representative of the
notice, or 48 hours after deposit of the notice in the U.S. mail whichever
occurs first.
11. Validity. The invalidity, in whole or in part, of any terms or condition of
this Agreement shall not affect the validity of any of the remaining terms or
conditions.
12. Disputes. In the event of any litigation to enforce or interpret any terms
or conditions of this Agreement, the parties agree that such action will be
brought in the Superior Court of the County of Los Angeles, California (or, if
the federal courts have exclusive jurisdiction over the subject matter of the
dispute, in the U.S. District Court of the Central District of California), and
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the parties hereby submit to the exclusive jurisdiction of said court. In any
action in Litigation to enforce or interpret any of the terms or conditions of
this Agreement, the prevailing party shall be entitled to recover from the
unsuccessful party all costs, expenses (including expert testimony), and
reasonable attorneys' fees incurred therein by the prevailing party. In no event
shall the litigation of any controversy or the settlement thereof delay the
performance of this Agreement.
13. Survival. The obligations imposed on Buyer by Articles 5 and 6 shall survive
cancellation or termination of this Agreement and final payment for equipment.
14. Remedies. The remedies reserved in this Agreement are cumulative and in
addition to any other remedies in law or equity which may be available to
Seller. The election of one or more remedies shall not bar the use of other
remedies unless the circumstances make the remedies incompatible.
15. Complete Agreement. This Agreement sets forth the entire agreement between
Buyer and Seller, and supersedes all other oral or written provisions. THE
PARTIES HEREBY AGREE THAT NO TRADE USAGE, PRIOR COURSE OF DEALING, OR COURSE OF
PERFORMANCE UNDER THIS AGREEMENT SHALL BE A PART OF THIS AGREEMENT OR SHALL BE
USED IN THE INTERPRETATION OR CONSTRUCTION OF THIS AGREEMENT. No modification of
any of the provisions shall be binding of Seller unless expressly agreed to in
writing.
16. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and when taken together with other signed
counterparts shall constitute Agreement binding all the parties.
AGREED and ACCEPTED this 24th day of May, 2002 (the "Effective Date").
Seller: Buyer:
AES Alamitos L.L.C. Mid-Power Service Corporation
By: /s/ Donald C. Vawter By: /s/ James W. Scott
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Signature: Signature:
Printed Name: Donald C. Vawter Printed Name: James W. Scott
Title: Vice President Title: President
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