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Trade Secret
<br />PERFORMANCE, PROCESSING ANY
<br />EQUIPMENT WARRANTIES FOR
<br />MALFUNCTIONING EQUIPMENT, FORCED
<br />MAJEURE, ETC. THE PARTIES UNDERSTAND
<br />THAT THE REBATES AND UTILITY BILL
<br />CREDITS/SAVINGS ARE PAID/RECOGNIZED
<br />PROPORTIONALLY WITH ENERGY SYSTEM
<br />ENERGY PRODUCTION, AND THAT THE ACTUAL
<br />AMOUNTS RECEIVED BY CUSTOMER WILL
<br />VARY ACCORDINGLY. TENANT DISCLAIMS ALL
<br />WARRANTIES, EXPRESS OR IMPLIED, THAT
<br />PRODUCTION WILL MATCH PROJECTIONS, AND
<br />CUSTOMER AND TENANT ASSUME, AT THEIR
<br />SOLE RISK, THE VARIABILITY OF ANNUAL
<br />ENERGY PRODUCTION AND VARIATIONS FROM
<br />ANY FINANCIAL PROJECTIONS RELATING TO
<br />UTILITY BILL CREDITS, SAVINGS AND
<br />REBATES.
<br />11. Customer's Maximum Payment Obligation. Customer's
<br />maximum power payment obligation to Tenant under this
<br />Agreement is the sum of all the Power Purchase Payments
<br />listed in Schedule A.
<br />12. Power Production Adjustment. Except where the
<br />reimbursement due under this Section is caused by
<br />Customer's breach of this Agreement, or the Energy
<br />System being non -operational during periods of Customer's
<br />Maintenance performed in accordance with Section 14 of
<br />the Facility Lease, in any 12 -month period beginning with the
<br />applicable Final Project Completion date that the Energy
<br />System does not produce at least 900 kWh per KW DC,
<br />Tenant will reimburse Customer within sixty (60) days after the
<br />then applicable 12 -month period as follows: Total payments
<br />made over the then applicable 12 -month period * (1 - (actual
<br />kWh/kWDC / 900 kWh/kWDC)). For Example, a 40 kWDC
<br />Energy System produces 800 kWh/kWDC and power
<br />payments equaling $3000 are paid during the then applicable
<br />12 -month period. A $333.33 cash reimbursement will be paid
<br />to the Customer that is calculated as follows: $3000 * (1-
<br />800/900) = $333.33.
<br />13. Miscellaneous.
<br />a. Subordination to Utility Rebate Agreement. No
<br />portion of this Agreement is intended to conflict with
<br />any Utility Rebate Agreements (the "Utility Rebate
<br />Agreements") to which Tenant or Customer is a party.
<br />In the case of a conflict between the terms or conditions
<br />of this Agreement and the Utility Rebate Agreements,
<br />the terms and conditions of Utility Rebate Agreements
<br />shall control. The Utility, or its successors and assigns,
<br />is a third -party beneficiary of the provision of this
<br />paragraph. Nothing in this Agreement shall prevent the
<br />Utility, from fully enforcing the terms and conditions of
<br />Utility Rebate Agreements.
<br />b. Relationship of the Parties. The Parties shall for all
<br />purposes be considered independent contractors with
<br />respect to each other, and neither shall be considered
<br />an employee, employer, agent, principal, partner or
<br />joint venturer of the other.
<br />c. Entire Agreement. This Agreement and the
<br />schedules, exhibits and attachments hereto, together
<br />with any agreement reference herein, constitute the
<br />entire agreement and understanding of the Parties
<br />relative to the subject matter hereof. The Parties have
<br />not relied upon any promises, representations,
<br />warranties, agreements, covenants or undertakings,
<br />other than those expressly set forth or referred to
<br />herein. This Agreement replaces and supersedes any
<br />and all prior oral or written agreements,
<br />representations and discussions relating to such
<br />subject matter.
<br />d. Survival of Representations. All representations,
<br />warranties, covenants and agreements of the Parties
<br />contained in this Agreement, or in any instrument,
<br />certificate, exhibitor other writing provided for in it, shall
<br />survive the execution of this Agreement and the
<br />consummation of the transactions contemplated
<br />herein.
<br />e. Amendment. This Agreement may be amended or
<br />modified only by a writing executed by the Parties to
<br />this Agreement. No custom or practice of the Parties
<br />at variance with the terms hereof shall have any affect.
<br />f. Notices. All notices to be given under this Agreement
<br />shall be in writing and shall be effectively given upon
<br />personal delivery, facsimile or email transmission (with
<br />confirmation of receipt), delivery by overnight delivery
<br />service or three days following deposit in the United
<br />States Mail (certified or registered mail, postage
<br />prepaid, return receipt requested).
<br />g. No Delay. No delay or failure on the part of any Party
<br />hereto to exercise any right, power or privilege
<br />hereunder shall operate as a waiver thereof.
<br />h. ForceMaleure. Neither Party will be liable to the other
<br />Party for any delay, error, failure in performance or
<br />interruption of performance resulting from causes
<br />beyond its reasonable control, including without
<br />limitation fires, flood, accidents, explosions, sabotage,
<br />strikes or other labor disturbances, product
<br />unavailability, labor unavailability, civil commotion,
<br />riots, invasions, wars, acts of God, acts of government,
<br />terrorism or any cause (whether similar or dissimilar to
<br />the foregoing) beyond the reasonable control of the
<br />Party.
<br />i. Governing Law / Venue. This Agreement shall be
<br />governed by and construed in accordance with the
<br />laws of the State of Minnesota without regard to its
<br />conflicts of laws principals. Any lawsuit brought in
<br />connection with this Agreement shall be brought only
<br />in a court of general jurisdiction in Hennepin County,
<br />Minnesota.
<br />j. Severability. The provisions of this Agreement are
<br />severable. If any part of this Agreement is rendered
<br />void, invalid or unenforceable, such rendering shall not
<br />affect the validity and enforceability of the remainder of
<br />this Agreement.
<br />k. Successors and Assigns. This Agreement shall be
<br />binding upon and inure to the benefit of the Parties and
<br />their respective successors and permitted assigns.
<br />Neither Party shall assign this Agreement, or any
<br />portion thereof, without the prior written consent of the
<br />other Party. Any attempted assignment or transfer
<br />without such prior written consent of the other Party
<br />shall be of no force or effect. As to any permitted
<br />assignment: (i) reasonable prior notice of any such
<br />assignment shall be given to the other Party, and (ii)
<br />any assignee shall expressly assume the assignor's
<br />obligations hereunder, unless otherwise agreed to by
<br />the other Party in writing. Notwithstanding the
<br />foregoing, as may be required for Tenant to avoid
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