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Trade Secret
<br />discounted cash flow value of Tenant's remaining Power
<br />Purchase Income under the Power Purchase Agreement
<br />and Facility Lease Agreement as of the Call Date. As of the
<br />date hereof, the Parties believe that a discount rate of
<br />fifteen percent (4%) is reasonable and agree that the
<br />Parties will use foregoing method in determining the Fair
<br />Market Value and resulting Call Price. The date of the Call
<br />closing shall be thirty (30) days following delivery of the
<br />notice of exercise of the Call, or such earlier date as the
<br />Parties may agree in writing (the "Call Closing Date"). The
<br />Call Price shall be paid by Customer to Tenant in cash on
<br />the Call Closing Date. Each Party shall remain liable for
<br />any obligations arising under the Facility Lease and this
<br />Agreement prior to the Call Closing Date.
<br />5. Obligations following exercise of Put or Call.
<br />a. Tenant. After the transfer and assignment of the
<br />Interest pursuant to the Put or Call, Tenant shall have
<br />no further obligations in connection with the Interest.
<br />b. Customer. After the transfer and assignment of the
<br />Interest pursuant to the Put or Call, Customer shall
<br />make, if not already paid, the Power Payments
<br />described in Schedule A of the Power Purchase
<br />Agreement between the Parties of even date herewith
<br />beginning with the month after the Final Project
<br />Completion date through and including the month of
<br />the Put or Call Closing date. Customer is not obligated
<br />to pay Tenant any Power Purchase Payments after the
<br />Put or Call Closing date through the end of the Term
<br />specified in the Power Purchase Agreement.
<br />6. Miscellaneous.
<br />a. Subordination to Utility Agreements. No portion of
<br />this Agreement is intended to conflict with any Utility
<br />Agreements (the "Utility Agreements") as defined in
<br />the Purchase Agreement to which Tenant or Customer
<br />is a Party. In the case of a conflict between the terms
<br />or conditions of this Agreement and the Utility
<br />Agreements, the terms and conditions of Utility
<br />Agreements shall control. The utility, or its successors
<br />and assigns, is a third -party beneficiary of the provision
<br />of this paragraph. Nothing in this Agreement shall
<br />prevent the utility, from fully enforcing the terms and
<br />conditions of Utility 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 hereto, together with any agreement
<br />reference herein, constitute the entire agreement and
<br />understanding of the Parties relative to the subject
<br />matter hereof. The Parties have not relied upon any
<br />promises, representations, warranties, agreements,
<br />covenants or undertakings, other than those expressly
<br />set forth or referred to herein. This Agreement
<br />replaces and supersedes any and all prior oral or
<br />written agreements, representations and discussions
<br />relating to such 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.
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<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 effect.
<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. ForceMaieure. 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, 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: (a) reasonable prior notice of any such
<br />assignment shall be given to the other Party, and (b)
<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
<br />being classified as a Public Utility under Minnesota
<br />Statutes Chapter 216B.02, Subd. 4., or to leverage tax
<br />benefits as tax owner, Tenant may, at its sole
<br />discretion, assign and/or sublease all or part of its full
<br />interest under the Facility Lease Agreement to a
<br />controlled affiliate of Tenant, assign its rights under the
<br />Power Purchase Agreement a controlled affiliate of
<br />Tenant, assign its rights under this Agreement to a
<br />controlled affiliate of Tenant, or assign this Agreement
<br />in connection with any sale of any or all of its Assets to
<br />a third party or Bank.
<br />I. Time is of the Essence. Time is of the essence with
<br />respect to all of the terms of this Agreement.
<br />m. Data Practices. Seller considers the information
<br />contained in this Agreement related to the programs,
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