AGREEMENT
AGREEMENT dated July 16, 2004 between Xxxxxxxxx Energy Corporation, a
Delaware corporation ("NEC"), and L & R Energy Company, LLC, a New York limited
liability company ("L & R").
WHEREAS, NEC and L & R were parties to that certain Gasifier Supply
and Start-Up Agreement dated October 28, 2003 (the "Gasifier Agreement").
WHEREAS, on July 1,2004, NEC served notice of termination of the
Gasifier Agreement on L & R.
WHEREAS, NEC and L & R are contemporaneously herewith entering into
that certain contract dated July 16, 2004 (the "Accord") between Ecoidea S.R.L.,
Electronic Solar, European Waste Solutions, Inc., L & R and NEC.
WHEREAS, NEC and L & R wish to release certain outstanding claims
which they each have, or may have, in connection with the Gasifier Agreement, on
the terms set forth herein.
WHEREAS, the parties desire to rescind the termination of the Gasifier
Agreement and reinstate the Gasifier Agreement as amended hereby, on the terms
set forth harem.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and the agreements and covenants of
the patties set forth herein, it is hereby agreed as follows:
1. Recission of Termination.
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(a) The termination of the Gasifier Agreement is hereby
rescinded, and the Gasifier Agreement is hereby reinstated and in full force and
effect as if it had never been terminated, as amended hereby, and subject to the
Accord.
(b) NEC's agreement to rescind the termination of the Gasifier
Agreement is made upon substantial and material reliance on the execution and
delivery of the Accord by all parties thereto and the enforceability of the
Accord against all parties thereto.
2. Amendments to the Gasifier Agreement. The Gasifier Agreement is
hereby amended to add the following Section to Article 3 of the Gasifier
Agreement.
"3.4 Conditions to NEC's Performance. NEC's performance of its duties
and obligations under this Article 3 is conditioned upon all other parties which
are involved in the development, completion and start-up of the Works, timely
performing their
respective duties, obligations and/or responsibilities at, and with respect to,
the Works, which are necessary to be done in order for NEC to be able to perform
any or all of its duties and obligations under this Section 3."
3. Representation. L & R hereby represents and warrants that it has
not breached or violated any of the provisions of Section 7.4 of the Gasifier
Agreement in any manner.
4. Release.
(a) For the purposes of this Section 4, each of NEC and L & R
shall be referred to as the "Releasor" in the context of the releasing party,
and the "Releasee" in the context of the party being released.
(b) Each of NEC and L & R., respectively, as "Releasor", hereby
discharges the other, as "Releasee", the Releasee, Releasee's heirs, executors,
administrators, successors and assigns from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which against the Release, the
Releasor, Releasor's heirs, executors, administrators, successors and assigns
ever had, now have or hereafter can, shall or may, have for, upon, or by reason
of any matter, cause or thing whatever from the beginning of the world to the
day of the date hereof, arising under the Gasifier Agreement or the transaction
to which the Gasifier Agreement relates.
(c) The provisions of Section 4(b) notwithstanding the releases
set forth in Section 4(b) shall be null and void and of no force nor effect ab
initio if the start up of the Works as set forth in that certain Agreement to
Definition of Start-Up dated July 29, 2004, between Ecoidea S.R,L., Electronic
Solar, European Waste Solutions, Inc., L & R and NEC does not occur on a timely
basis for any reason.
5. Press Releases. L &R shall have the right to approve the press
release of NEC relating to L & R and this matter, prior to distribution thereof;
provided however that NEC shall be entitled to make any disclosure that it is
required to make to meet its obligations under applicable securities laws, rules
and regulations.
6. Conflict. To the extent that the terms and provisions of the Accord
or any schedules, exhibits or attachments conflicts with the terms and
provisions of this Agreement or the Gasifier Agreement as amended hereby, the
terms of the Accord and any schedules, exhibits, or attachments thereto, shall
govern.
7. Force and Effect. The Gasifier Agreement, as amended hereby, shall
be in full force and effect.
IN WITNESS WHEREOF, the undersigned have duly caused this agreement to
be executed as of the date first above written.
XXXXXXXXX ENERGY CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Title: Vice President Operations
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L & R ENERGY COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
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Title: Member
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L & R Energy Company, LLC
0000 X. Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
July 16,2004
Xxxxxxxxx Energy Corporation
0000 Xxxxx XxxxxXxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Subject: L&R Energy Company / Xxxxxxxxx Energy Corporation -- Gasifier Supply
and Start-Up Agreement dated 28 October 2003 relating to a
co-generation waste-to-energy plant in Cologna Veneta (the "Plant")
With reference to the agreement referred to in the subject matter and to
the agreement signed on the date hereof by and between Ecoidea S.r.l.,
Electronic Solar S.r.l, European Waste Solution Inc., L&R Energy Company LLC and
Xxxxxxxxx Energy Corp., relating to the achievement of the entry into exercise
of the Plant within 31 July 2004, we hereby agree that, being understood that
the first entry into exercise of the first line of the Plant stall occur within
31 July 2004, as already agreed between the parties and in line with the
prescriptions of the Resolution of the Region Veneto No. 2926 dated 3 October
2003, the term for the supply and start-up of the Plant, as provided for in the
agreement referred to in the subject matter, is postponed until 30 September
2004.
As a consequence of the above, any claim for damages, indemnities,
reimbursements, liquidated damages for delay in the supply and start-up of the
Plant may be exercised only in case of a delay commencing on 1 October 2004.
Any other provision of the agreement referred to in the subject matter, as
well as of the agreement entered into on the date hereof which is not expressly
amended herewith shall remain unchanged, including each and all the guarantees
on the operation of the Plant and its successful start-up.
/s/ Xxxxxxx X. Xxxxxx
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L&R ENERGY COMPANY LLC
Xxxxxxx X. Xxxxxx
Member
For confirmation and acceptance:
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXXXXX ENERGY CORPORATION
Xxxxxx X. Xxxxxxxxx, Vice President Operations