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Trade Secret
<br />ROUTINE MAINTENANCE CAUSING DOWNTIME,
<br />Mail (certified or registered mail, postage prepaid, return
<br />EQUIPMENT PERFORMANCE, PROCESSING ANY
<br />receipt requested).
<br />EQUIPMENT WARRANTIES FOR MALFUNCTIONING
<br />g.
<br />No Delay. No delay or failure on the part of any Party
<br />EQUIPMENT, FORCED MAJEURE, ETC. THE
<br />hereto to exercise any right, power or privilege hereunder
<br />PARTIES UNDERSTAND THAT THE UTILITY BILL
<br />shall operate as a waiver thereof.
<br />CREDITS/SAVINGS ARE PAID/RECOGNIZED
<br />PROPORTIONALLY WITH ENERGY SYSTEM
<br />h.
<br />Force Majeure. Neither Party will be liable to the other
<br />Party for any delay, error, failure in performance or
<br />ENERGY PRODUCTION, AND THAT THE ACTUAL
<br />interruption of performance resulting from causes beyond
<br />AMOUNTS RECEIVED BY CUSTOMER WILL VARY
<br />its reasonable control, including without limitation fires,
<br />ACCORDINGLY. TENANT DISCLAIMS ALL
<br />flood, accidents, explosions, sabotage, strikes or other
<br />WARRANTIES, EXPRESS OR IMPLIED, THAT
<br />labor disturbances, civil commotion, riots, invasions, wars,
<br />PRODUCTION WILL MATCH PROJECTIONS, AND
<br />acts of God, ads of government, terrorism or any cause
<br />CUSTOMER AND TENANT ASSUME, AT THEIR SOLE
<br />(whether similar or dissimilar to the foregoing) beyond the
<br />RISK, THE VARIABILITY OF ANNUAL ENERGY
<br />reasonable control of the Party.
<br />PRODUCTION AND VARIATIONS FROM ANY
<br />i.
<br />Governing Law / Venue. This Agreement shall be
<br />FINANCIAL PROJECTIONS RELATING TO UTILITY
<br />governed by and construed in accordance with the laws of
<br />BILL CREDITS AND SAVINGS.
<br />the State of Minnesota without regard to its conflicts of laws
<br />principals. Any lawsuit brought in connection with this
<br />12. Customer's Maximum Power Payment Obligation.
<br />Agreement shall be brought only in a court of general
<br />Customer's maximum power payment obligation to Tenant
<br />jurisdiction in Hennepin County, Minnesota.
<br />under this Agreement is the sum of all the Power Purchase
<br />Payments due per Schedule A.
<br />j.
<br />Severability. The provisions of this Agreement are
<br />severable. If any part of this Agreement is rendered void,
<br />13. Miscellaneous.
<br />invalid or unenforceable, such rendering shall not affect
<br />a. Subordination to Utility Agreement No portion of this
<br />the validity and enforceability of the remainder of this
<br />Agreement is intended to conflict with any Utility
<br />Agreement.
<br />Agreements to which Tenant or Customer is a party. Inthe
<br />k.
<br />Successors and Assigns. This Agreement shall be
<br />case of a conflict between the terms or conditions of this
<br />binding upon and inure to the benefit of the Parties and
<br />Agreement and the Utility Agreements, the terms and
<br />their respective successors and permitted assigns.
<br />conditions of Utility Agreements shall control. The Utility,
<br />Neither Party shall assign this Agreement, or any portion
<br />or its successors and assigns, is a third -party beneficiary
<br />thereof, without the prior written consent of the other Party.
<br />of the provision of this paragraph. Nothing in this
<br />Any attempted assignment or transfer without such prior
<br />Agreement shall prevent the Utility, from fully enforcing the
<br />written consent of the other Party shall be of no force or
<br />terms and conditions of Utility Agreements.
<br />effect. As to any permitted assignment: (i) reasonable
<br />b. Relationship of the Parties. The Parties shall for all
<br />prior notice of any such assignment shall be given to the
<br />purposes be considered independent contractors with
<br />other Party, and (ii) any assignee shall expressly assume
<br />respect to each other, and neither shall be considered an
<br />the assignor's obligations hereunder, unless otherwise
<br />employee, employer, agent, principal, partner or joint
<br />agreed to by the other Party in writing. Notwithstanding
<br />venturer of the other.
<br />the foregoing, as may be required forTenantto avoid being
<br />classified as a Public Utility under Minnesota Statutes
<br />c. Entire Agreement. This Agreement and the Schedules
<br />Chapter 216B.02, Subd. 4., or to leverage tax benefits as
<br />hereto, together with any agreement referenced herein,
<br />tax owner, Tenant may, at its sole discretion, assign and/or
<br />constitute the entire agreement and understanding of the
<br />sublease all or part of its full interest under the Facility
<br />Parties relative to the subject matter hereof. The Parties
<br />Lease Agreement to a controlled affiliate of Tenant, assign
<br />have not relied upon any promises, representations,
<br />its rights under this Power Purchase Agreement a
<br />warranties, agreements, covenants or undertakings, other
<br />controlled affiliate of Tenant, or assign this Agreement in
<br />than those expressly set forth or referred to herein. This
<br />connection with any sale of any or all of its Assets to a third
<br />Agreement replaces and supersedes any and all prior oral
<br />party or Bank.
<br />or written agreements, representations and discussions
<br />relating to such subject matter.
<br />I.
<br />Time is of the Essence. Time is of the essence with
<br />respect to all of the terms of this Agreement.
<br />d. Survival of Representations. All representations,
<br />warranties, covenants and agreements of the Parties
<br />m.
<br />Data Practices. Seller considers the information
<br />contained in this Agreement, or in any instrument,
<br />contained in this Agreement related to the programs,
<br />certificate, exhibit or other writing provided for in it, shall
<br />methods, techniques and processes utilized by Seller to
<br />survive the execution of this Agreement and the
<br />offer and implement the Energy System to be trade secret
<br />consummation of the transactions contemplated herein.
<br />information of Seller as defined in the Minnesota
<br />Government Data Practices Act Ch. 13 .37 Subd. 1 (b)
<br />e. Amendment. This Agreement may be amended or
<br />GENERAL NONPUBLIC DATA. In no event shall this
<br />modified only by a writing executed by the Parties to this
<br />information be shared or disclosed with any person or third
<br />Agreement. No custom or practice of the Parties at
<br />party without the prior written approval of Seller.
<br />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 />[SIGNATURE PAGE FOLLOWS]
<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 States
<br />
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