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General Electric, Steam Turbine Generator, 2009, 615MW, 60Hz, 3600 RPM

General Electric, Steam Turbine Generator, 2009, 615MW, 60Hz, 3600 RPM Sold

Description

  1. Overview
    1. 615 MW General Electric steam turbine generator.
    2. Turbine serial number: 270T764.
    3. Generator serial number: 290T764.
    4. Seller is selling into the global market.
  2. Finder’s Agreement Recitals
    1. Seller has requested, and Finder has agreed, to identify and introduce to IUSC possible worldwide potential buyers of the turbine.
    2. IUSC agrees to protect the identity of the potential target buyers following the terms and conditions of this agreement.
    3. IUSC agrees to pay to AP&E all of the fees outlined in this agreement in connection with a turbine sale transaction.
  3. Duties and Services of Finder
    1. Finder shall submit to Seller prospective customers for Seller’s goods and services.
    2. IUSC hereby retains AP&E to identify and introduce to IUSC potential target buyers that are interested in pursuing a turbine sale transaction.
    3. Upon identifying a potential target buyer, AP&E shall communicate such potential target buyer to IUSC by email or in writing, each a “Registered Target”.
    4. IUSC agrees and acknowledges that it shall exclusively negotiate with each Registered Target that is approved by IUSC.
    5. AP&E shall from time to time during the term of this agreement amend Annex I to add the names of each Registered Target that has been communicated to IUSC.
    6. The sole duty of AP&E under this agreement is to identify and introduce potential target buyers, leaving the evaluation, negotiation, and consummation of any turbine sale transaction to IUSC and its employees, representatives, and agents.
    7. AP&E is not acting as a financial advisor to IUSC or the owner of the turbine.
    8. Other than the services expressly outlined in this agreement, AP&E owes no other services, duties, or obligations, whether legal or otherwise, to IUSC.
    9. Finder shall not make any representations regarding the Seller’s goods, services, or business, other than as expressly authorized in writing by the Seller.
    10. Finder shall not in any manner represent to any prospective customer or any other party that Finder is authorized to act on Seller’s behalf.
    11. The Finder’s duties under this agreement shall be limited solely and exclusively to locating prospective customers and introducing them to the Seller.
    12. Any expenses incurred by Finder in connection with the discharge of Finder’s duties under this agreement shall be paid by Finder.
    13. Seller shall have no obligation to reimburse Finder for any expenses incurred by Finder in performing this agreement unless Seller specifically agrees otherwise in writing.
  4. Finder’s Compensation and Covenants
    1. As compensation for AP&E’s introduction services, IUSC agrees to pay AP&E an aggregate amount equal to the broker fees.
    2. The fees will be deemed accrued and payable only if the turbine sale transaction is effectively consummated within three (3) months from the date AP&E introduced IUSC to the Registered Target.
    3. Subject to Section 2.2, the fees will be payable by IUSC to AP&E simultaneously with the closing of any such turbine sale transaction.
    4. “Gross consideration” means total gross consideration paid with respect to any turbine sale transaction, including, but not limited to, and without duplication: cash, the fair market value of any equity or stock, notes, any deferred or additional payments, plus the assumption of any interest-bearing indebtedness with respect to the turbine, if any.
    5. IUSC shall pay the fee through a paymaster/escrow structure, which shall be on terms and conditions reasonably satisfactory to AP&E.
    6. This payment structure will be established in consultation with IUSC and a banking institution that is mutually agreeable to the parties.
    7. IUSC agrees to negotiate in good faith with each Registered Target with the goal of seeking to execute a definitive agreement with a Registered Target in respect of a turbine sale transaction.
    8. IUSC will allow each Registered Target and its advisors full access to the records and information relating to the turbine, including allowing a physical inspection of the turbine.
  5. Finder’s Representations and Warranties
    1. Finder’s performance under this agreement will not violate any applicable law, rule, regulation, or judicial order, nor any contractual obligation or confidential relationship that the Finder may have with any third party.
    2. Finder’s performance under this agreement will not infringe upon any proprietary rights of third parties, including, without limitation, patents, copyrights, or trade secrets.
    3. Any information supplied by the Finder to the Seller, or utilized in performing its duties hereunder, will have been obtained lawfully.
  6. Seller’s Representations and Warranties
    1. The making and performance by IUSC of this agreement do not and will not violate any charter, bylaw or other organizational agreement of such party, any law or regulation applicable to such party, or any other agreement or instrument by which such party or any of its property is bound.
    2. IUSC shall respect the technical specifications for the turbine.
    3. IUSC has not taken nor will take any steps or execute any documents which would materially or adversely affect the rights of XX hereunder.
    4. There is a valid exclusivity agreement between IUSC and the owner of the turbine, which is in full force and effect and has not been terminated or amended in any respect.
    5. IUSC has the full power and authority and the worldwide exclusivity to market and sign, on behalf of the turbine’s owner, a definitive agreement in respect of a turbine sale transaction, and does not require any additional documents to proceed with a turbine sale transaction.
    6. IUSC is not a debtor in a bankruptcy case or other insolvency proceeding, and, to its knowledge, no commencement of an involuntary bankruptcy case or other insolvency proceeding has been threatened against it.
  7. Mutual Representations and Warranties
    1. Each party has the full right, power, and authority, and has taken all necessary actions, to execute and deliver this agreement and to perform its obligations under this agreement.
    2. This agreement has been duly authorized, executed, and delivered by each party and constitutes its legal, valid, and binding obligations, enforceable against it in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, or as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
    3. Each party has had this agreement reviewed by competent legal and tax counsel and has received advice regarding entering into this agreement and performing its obligations under this agreement.
    4. The other party has not given any investment advice or rendered any opinion as to whether entering into this agreement in exchange for the rights received is prudent.
  8. Obligations of Seller
    1. The Seller is under no obligation to proceed with any referral provided by the Finder.
    2. The Seller retains sole and absolute discretion regarding entering into any negotiations and agreements with prospective customers.
    3. IUSC agrees not to circumvent, avoid, bypass, or otherwise obviate the payment of any portion of the fee due to AP&E in any transactions or series of transactions involving a Registered Target, its affiliates, or any group of investors in which the Registered Target or any of its affiliates are participating, either directly or indirectly.
    4. In the event of any such circumvention, IUSC agrees that AP&E shall be entitled to a monetary penalty equal to the maximum fee that could have been realized from such a transaction or series of transactions, plus all legal expenses incurred in the recovery of the fee.
    5. All Registered Targets will remain exclusive clients of AP&E.
    6. Should IUSC or any of its affiliates wish to contact any Registered Targets, whether currently or in the future, they shall do so exclusively through AP&E, regardless of whether the business or matter is related to the subject of this agreement.
    7. If IUSC or any of its affiliates breaches this section, AP&E shall have the right to receive, and IUSC shall pay, an amount equal to 10% of the total amount of any future business conducted between IUSC and/or any of its affiliates and the Registered Target, along with any legal fees incurred by AP&E to enforce this Section 4.
  9. Non-Exclusivity
    1. During the term of this agreement, Seller may engage any other firms and/or individuals to act as a finder with respect to the sale of any of Seller’s goods or services.
    2. No other finder may recommend any Registered Target as a potential buyer, investor, or otherwise.
  10. Indemnification
    1. Each party, as the “Indemnifying Party”, will indemnify, defend, and hold the other party, its respective shareholders, officers, directors, administrators, managers, personnel, successors and assigns, each an “Indemnified Party”, harmless from and against any and all damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, actions, demands, lawsuits, costs, and expenses including, without limitation, reasonable attorneys’ fees, that arise out of or relate to the gross negligence, willful misconduct or fraud of the Indemnifying Party.
    2. Indemnification applies to the Indemnifying Party’s breach of any obligation, representation or warranty under this agreement.
    3. Indemnification applies to the failure by the Indemnifying Party to comply with any applicable laws, rules and regulations.
    4. For purposes of this section, the acts or omissions of a party’s employees, consultants, subcontractors, agents, and representatives shall be deemed the acts or omissions of that party.
  11. Limitation of Liability
    1. Except for the parties’ confidentiality obligations of this agreement and indemnification obligations under this agreement, in no event shall either party be liable under this agreement to the other for any incidental, consequential, indirect, statutory, special, exemplary or punitive damages, including, but not limited to, lost profits, loss of use, loss of time, shutdown or slowdown costs, inconvenience, loss of business opportunities, damage to goodwill or reputation, or other economic loss, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen.
  12. Term and Termination
    1. This agreement shall be for an initial term of three months, the “Initial Term”, commencing on the effective date and terminating on the first anniversary date thereof, unless earlier terminated.
    2. Thereafter, the agreement shall be automatically renewed for additional three-month terms unless, not less than thirty (30) days prior to the end of the Initial Term or any renewal term, either party notifies the other of its intent not to renew the agreement.
    3. Either party may terminate this agreement at any time in the event of a breach by the other party of a material covenant, commitment or obligation under this agreement that remains uncured after thirty (30) days following written notice thereof.
    4. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either party.
    5. Termination shall be in addition to any other remedies that may be available to the non-breaching party.
    6. Termination of this agreement for any reason shall not discharge either party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination.
    7. Either party may terminate this agreement at any time with or without cause by giving thirty (30) days prior written notice.
  13. Relationship of the Parties
    1. Finder and any of its employees or personnel performing any services under this agreement are independent contractors and are not employees of the Seller.
    2. Neither party is the agent of the other and neither party shall have any right or authority to make or enter into any contract or other agreement in the name of or for the account of the other party, or to make any representation, or to assume, create or incur any obligation or liability of any kind on behalf of the other party.
    3. Each party will be responsible for any applicable payment and withholdings of any salary, benefits, incentives, and any other compensation or taxes relevant to its personnel.
    4. Nothing in this agreement, and no course of dealing between the parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents.
  14. Governing Law and Venue
    1. This agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state.
    2. The parties hereby agree that any action arising out of or relating to this agreement will be brought solely in the state or federal courts of the State of Florida located in Miami Dade County.
    3. Both parties submit to the exclusive jurisdiction and venue of these courts and agree not to commence any action or legal proceeding relating to this agreement except in such courts.
    4. Each party irrevocably and unconditionally waives any objection to the laying of venue in these courts and agrees not to plead or claim that any such action or legal proceeding brought in these courts has been brought in an inconvenient forum.
    5. Each party agrees that service of any process, summons, notice, or document by U.S. certified mail addressed to such party at the address set forth below (or such other address as notified by either party to the other party in writing) shall be effective service of process for any such suit, action, or proceeding brought against such party in these courts.
    6. Each party agrees that a final judgment in any such suit, action, or proceeding brought in these courts shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.