File Index
ISO Alliance Trust LU }
1. Cross Indemnity and Mitigation Agreement
2. Operating Agreement
Dated: 3/6/97
Dated: 3/6/97
3. Scheduling Applications, Infrastructure & Business Systems
Dated: 3/14/97
4. Letter Agreement Re: Stage I
Dated: 7/31/98
5. Contract Modifications to Implement Stage n
Dated: 7/31/98
Tuesday, March 30,1999
Page 1 of 1
CROSS INDEMNITY AND MITIGATION AGREEMENT
This Cross Indemnity and Mitigation Agreement, effective as of March 6, 1997
(the "Effective Date"), is between Xxxxx Systems Corporation, a Delaware
corporation ("Xxxxx Systems"), and ABB Power T&D Company Inc., a Delaware
corporation ("ABB").
Preliminary Statements
X. Xxxxx Systems and ABB are members of ISO Alliance, LLC, a Delaware limited
liability company ("Alliance").
X. Xxxxx Systems and ABB anticipate that Alliance and Independent System
Operator Restructuring Trust ("Purchaser") will, effective on or after
the Effective Date, enter into that certain Scheduling Applications,
Scheduling Infrastructure and Business Systems Contract (the "Prime
Contract"), which has been reviewed by the parties and pursuant to which
Xxxxx Systems and ABB will provide certain services and deliverables to
ISO.
C. Contemporaneously with the execution of the Prime Contract, Alliance will
enter into a separate subcontract with each party, pursuant to which such
party or its subcontractors will provide an identified subset of the
services and deliverables to be performed under the Prime Contract (each,
an "ISO Subcontract").
D. Contemporaneously with the execution of the Prime Contract, Xxxxx Systems
and ABB will enter into a Guaranty with Purchaser , pursuant to which the
parties will guaranty the performance of Alliance's obligations under the
Prime Contract.
Accordingly, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. (a) Each party (the "Indemnifying Party") shall, at its own expense,
indemnify and hold harmless the other party and its officers, agents, employees,
and permitted assignors, assignees, and successors in interest (the "Indemnified
Party") from and against:
(i) any and all payments (excluding any payments resulting from the
assessment of liquidated damages under Section 28.3.1 of the Prime Contract)
which the Indemnified Party becomes obligated to make to the Purchaser under the
Guaranty except to the extent that the liability of the Alliance to which any
such payment relates is caused " u failure of the Indemnified Party or its
subcontractors to render timely performance 01 or Ml of its obligations under
its ISO Subcontract (including, without limitation, obligations to gy
damages or indemnification payments required to be paid under its ISO
Subcontract);
(ii) any and all payments resulting from the assessment of
liquidated damages under Section 28.3.1 of the Prime Contract which the
Indemnified Party becomes obligated to make to the Purchaser under the Guaranty
but only to the extent such payments exceed the Indemnified Party's share of
such liquidated damages as set forth in Section 2 of this Agreement; and
(iii) any and all payments made and costs incurred (other than
those payments for which indemnification is provided under the proceeding
paragraphs (i) and (ii) of this Section) resulting from actions taken or
payments made by the Indemnified Party on behalf of the Alliance which are
necessitated by the failure of the Indemnifying Party to render timely
performance of any or all of its obligations under its ISO Subcontract
(including, without limitation, obligations to pay any damages or
indemnification payments required to be paid under its ISO Subcontract).
(b) Each party (the "Indemnifying Party") shall, at its own expense,
defend, indemnify and hold harmless the other party and its officers, agents,
employees, and permitted assignors, assignees, and successors in interest (the
"Indemnified Party") from and against any and all liability, damages, losses,
claims, demands, actions, causes of action, costs (including attorney's fees and
expenses), or any of them, for which the Indemnifying Party is obligated under
its ISO Subcontract to idemnify the Alliance or the Purchaser.
(c) The indemnity obligations set forth in paragraphs (a) and (b) above
are contingent upon the Indemnified Party giving the Indemnifying Party prompt
written notice of any such claim, full cooperation in the defense of any such
claim, and the right to defend against any such claim with counsel of the
Indemnifying Party's choosing and to settle or compromise any such claims as the
Indemnifying Party deems appropriate, subject to the payment by the Indemnifying
Party of any settlement or compromise amount. Failure to do so will relieve the
Indemnifying Party of any obligation or liability pursuant to this
indemnification provision. The Indemnified Party shall have the right to employ
its own counsel to participate in the defense of any such claim, but the fees
and expenses of such counsel shall be borne by the Indemnified Party.
2. Notwithstanding anything to the contrary in the organizational documents of
the Alliance, the Prime Contract, or any ISO Subcontract, Xxxxx Systems shall
bear 30%, and ABB shall bear 70%, of any and all liquidated damages assessed
against Alliance pursuant to Section 28.3-1 of the Prime Contract, provided that
(i) the total amount to be shared in accordance with the foregoing percentage
allocations shall be reduced by the amount actually received by the parties from
their respective subcontractors as liquidated damages assessed in respect of
said Section 28.3.1 of the Prime Contract or the analogous provision of a
subcontract and (ii) the amounts so-received shall be paid over to the Alliance
or otherwise made available for the benefit of both parties for the discharge of
the Alliance's obligation in respect to liquidated damages. 3. Each party shall
use its best efforts to mitigate its Losses and potential Losses in connection
with the Prime Contract and the ISO Subcontracts.
4. Each party (the "Remediating Party") shall, as soon as reasonably
practicable, notify the other party (the "Party at Risk") of its belief that the
Party at Risk will fail to fulfill its obligations under an ISO Subcontract.
Immediately after receiving such notice, the Party at Risk shall, at its sole
expense, take whatever remedial measures may be required (including but not
limited to adding personnel) to provide adequate assurances to the Remediating
Party that such obligations shall be fulfilled. If the Party at Risk does not
take such remedial measures, then the Remediating Party shall have the right to
take whatever remedial measures may reasonably be required to ensure the
fulfillment of such obligations, and to be indemnified by the Party at Risk, as
provided in Section 1 (a) (ii) for its payments made and costs incurred in
connection with taking such remedial measures.
5. Neither party shall be liable to the other for indirect, incidental, special,
punitive, or consequential damages, including, but not limited to, lost profits,
whether such damages arise in contract, tort (including negligence and strict
liability), breach of warranty, failure of essential purpose or otherwise.
Except with respect to a party's indemnification obligations hereunder, the
cumulative liability of a party (the "Responsible Party") to the other party
under this Agreement, regardless of whether such liability is based on breach of
contract, tort (including negligence and strict liability), breach of warranty,
failure of essential purpose or otherwise, shall be limited to the Contract
Price under the Responsible Party's ISO Subcontract.
6. The parties shall attempt in good faith to resolve any dispute arising out of
or relating to this Agreement promptly by negotiations between a designated
officer of each party. Either party may give the other party written notice of
any dispute. Within twenty days after delivery of said notice, the designated
persons shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary to exchange information and to attempt
to resolve the dispute. If the matter has not been resolved within thirty days
of the first meeting, the dispute shall be submitted first to voluntary
mediation, and if mediation is not successful, then to binding arbitration, in
accordance with the dispute resolution procedures set forth in the Prime
Contract. Judgment on any arbitration award may be entered in any court having
proper jurisdiction. To avoid inconsistent results betweeen the resolution of a
dispute under this Agreement and a dispute under the Prime Contract, or under an
ISO Subcontract, which disputes involve common factual or legal issues, the
parties shall be bound by the resolution of such factual or legal issues under
the disputes resolution procedures of the Prime Contract or under such ISO
Subcontract, as the case may be, provided that they shall each have had
reasonable opportunity to participate and be heard under such disputes
resolution procedures. 7. None of the provisions of the Agreement shall be
considered waived by either party unless such waiver is specifically stated in
writing, and signed by the authorized representative of the party waiving the
provision.
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8. Neither party shall assign this Agreement or any part thereof or interest
therein, without the prior written consent of the other party, and any
assignment without such consent shall be void and of no effect.
9. Should any section, provision or portion of this Agreement be held to be
invalid, illegal or void, by a court of proper jurisdiction then and in such
event, any such section, provision or portion shall be deleted from the
Agreement and the Agreement shall be read as though such invalid, illegal or
void section, provision or portion was never included herein, and the remainder
of the Agreement shall nevertheless subsist and continue in force and effect
until such time as the remaining provisions shall be modified or void, as agreed
to by the parties.
10. Any notice, request, demand, claim or other communication related to this
Agreement shall be in writing and delivered by hand or by telecopier, certified
mail (postage prepaid) or overnight courier to the other party's representative
at the address provided for notice in the organizational documents of the
Alliance.
11. This Agreement shall be interpreted, governed and construed under the laws
of the State of California as if executed and to be performed wholly within the
State of California.
12. This Agreement contains the entire agreement and understanding between the
parties and merges and supersedes all prior representations and discussions
pertaining to this Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed by their
authorized officers or representatives as of the dates set below, but effective
as of March 6,1997.
XXXXX SYSTEMS CORPORATION
By: /s/
Its:
Date:
ABB POWER T&D COMPANY INC.
By: /s/
Its:
Date:
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