EXHIBIT 10.80
EXECUTION COPY
_______________________________________
SHAREHOLDER INTEREST PURCHASE AGREEMENT
Dated 3 March 2000
Between
MEC International B.V.
and
UPC INTERNATIONAL PARTNERSHIP CV II
_______________________________________
SHAREHOLDER INTEREST PURCHASE AGREEMENT
THIS SHAREHOLDER INTEREST PURCHASE AGREEMENT ("Agreement") dated 3 March 2000,
by and between:
MEC International B.V., a limited liability company organized under the laws of
The Netherlands ("MECI"); and
UPC INTERNATIONAL PARTNERSHIP CV II, a limited partnership established under the
laws of the Netherlands Antilles ("UPC").
MECI and UPC are hereinafter jointly referred to as the "Parties" and each of
them as a "Party".
RECITALS:
A. Through its indirectly wholly-owned subsidiary I.V.P.C. 4 S.r.l. (ITALIAN
VENTO POWER CORPORATION) ("IVPC4") UPC holds or will hold the rights to several
wind energy projects totalling an aggregate of 283.1 MW in various locations in
the south of Italy and Sardinia.
B. Fifty percent of the quotaholder interest in IVPC4 is held by each of IVPC
Energy 5 B.V. ("IEBV5") and IVPC Energy 4 B.V. ("IEBV4"), 100% of the
shareholder interests in each of which are held by UPC.
C. The Parties contemplate obtaining senior debt financing for the Project in
various stages related to specific sites as follows: Stage A consisting of 99,1
MW; Stage B consisting of 122,7 MW; Stage C consisting of 29,7 MW; and Stage D
consisting of 31,68 MW.
D. Pursuant to the terms hereof, the Parties wish to provide for the purchase
by MECI of 100% of the shareholder interest in IEBV5 and thereby a fifty percent
(50%) interest in IVPC4 and the Project with the remaining fifty percent (50%)
interest in IVPC4 being retained directly or indirectly by UPC and Finance
Investment Projects S.r.l. ("FIP") through direct investment in IEBV4.
E. The Parties also wish to agree between them certain other matters with
respect to the Project.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter contained, the Parties hereto hereby agree as follows:
1. DEFINITIONS, INTERPRETATION AND CONDITIONS PRECEDENT
1.1 Definitions and Interpretation:
The defined terms and rules of interpretation in Schedule I are hereby
incorporated herein.
1.2 Pre -Conditions to MECI's Execution of Agreement.
MECI's execution of this Agreement is subject to satisfaction of the
conditions precedent specified in this Section 1.2, which MECI now
acknowledges, by the execution of this Agreement, have been satisfied or
waived (subject to Section 1.3 (e) (iii)):
(a) Due Diligence
Satisfactory completion of MECI's due diligence of the Project, IEBV5 and
IVPC4.
(b) Corporate Approvals.
Approval of Edison Mission's and Edison International's Board of Directors.
(c) Equity Base Case.
The Equity Base Case for the Project attached hereto as Schedule II, shows
a 15.71% IRR to MECI.
(d) Quotaholders Agreement.
Agreement on the form of an IVPC4 Quotaholders Agreement, attached hereto
as Schedule III.
(e) Consulting Services Agreement.
Agreement on the form of a Consulting Services Agreement attached hereto as
Schedule IV.
(f) Share Transfer
Agreement on the form of the notarial deed of transfer of shares to effect
the transfer of the Interest, to be executed before a Dutch civil law
notary (notaris), substantially in the form as attached to this Agreement
as Schedule V (the "Notarial Deed").
1.3 Pre-Conditions to Sale and Purchase of the Interest.
MECI's purchase of the Interest is subject to satisfaction of the following
conditions precedent:
(a) Satisfaction or waiver (provided, however, that any waiver shall
require the written approval of MECI, such approval not to be
unreasonably withheld or delayed) of all the conditions precedent
required for Financial Close and funding of Stages A and B as
confirmed in writing by the Senior Lender to IVPC4, except for payment
into the Disbursement Account of the Equity for Stages A and B.
(b) Execution by UPC of the Consulting Services Agreement.
(c) Delivery by UPC of the following financial statements, audited by
Reconta Ernst & Young S.p.A. (as to IVPC4) and Xxxxxx and Co. (as to
IEBV5 and UPC) in accordance with Applicable GAAP:
(i) IVPC4 1999 Year End
(for the avoidance of doubt the audited IVPC4
financial statements for 1999 shall include and
incorporate the financial statements of IVPC
Puglia S.r.l.);
(ii) IEBV5 1999 Year End;
(iii) XXX 0000 Year End,
showing, in each case, no material change from the form of the
Financial Statements attached hereto as Schedule VI and attesting, in
each case, that the audited statements present fairly, in all material
respects, (i) the financial position of each company as of the above
dates, and (ii) the results of their operations and cash flows for the
year 1999 are in conformity with Applicable GAAP.
(d) Confirmation, satisfactory to MECI that the Banking Base Case is
consistent with the audited financial statements for IVPC4 referred to
in paragraph (c) above
(e) Agreement on the form of the documents attached as Schedules hereto:
(i) The Parties acknowledge that Schedule I (Definitions and
Interpretation), III (Quotaholders Agreement) (except as set out
in (iii) below), IV (Consulting Services Agreement), V (Form of
Notarial Deed), VIII (Subordinated Loan Agreements), IX (Note
and assignment thereof) are in agreed form and that Schedules II
(Equity Base Case) (except as set out of 1.3 (f) below), and VII
(Xxxxxx Xxxxxx Wind Report) are substantially in agreed form.
(ii) MECI acknowledges appropriate delivery of the documents in
Schedule VI (Financial Statements).
(iii) UPC acknowledges that agreement on the budget attached as
Exhibit C to the Quotaholders Agreement, is subject to MECI's
sole discretion (acting reasonably).
(f) Conformation, satisfactory to MECI, that the fee arrangements between
IVPC4 and the Senior Lenders are adequately reflected in the Equity
Base Case under the line item referred to as "Front End Fees".
2. PURCHASE AND SALE, CLOSING AND PURCHASE PAYMENT.
2.1 Subject to Sections 1.2 and 1.3 above, MECI hereby agrees to purchase from
UPC, and UPC hereby agrees to sell to MECI, 100% of the legal and
beneficial interest in the capital of IEBV5 (the "Interest") in accordance
with the provisions of this Agreement.
2.2 Following satisfaction of the last of the conditions precedent in Section
1.3 above, the transfer of the Interest shall be perfected by way of a duly
executed Notarial Deed and MECI and UPC shall cause IEBV5 and IEBV4,
respectively, to execute the Quotaholders Agreement.
2.3 The purchase payment for the Interest shall be Italian lire Ninety Billion,
Three Hundred Million (ITL 90,300,000,000), ("Purchase Payment") and shall
be paid and adjusted in accordance with the following provisions:
(a) Initial Payment.
Following execution of the Notarial Deed then, subject to the terms of the
Permit Side Letter, MECI shall pay UPC an amount equal to 90% of the
Purchase Payment multiplied by the ratio (calculated in MWs) which each
Stage so ready for funding bears to the Project (the "Initial Payment"), as
follows:
(i) not later than noon on the Business Day preceding the date on which
IVPC4 is ready to submit the first Borrower's Drawdown Certificate
under the Credit Agreement in respect of a Stage, MECI shall wire on
behalf of IEBV4 the following amounts (each of them an "Equity
Portion") to the Disbursement Account for the purpose of satisfying
IEBV4's obligation under the Credit Agreement to fund its portion of
Equity for that Stage:
ITL 8,532,000,000 for Stage A (or that lower amount, sufficient to
complete the equity funding of the portion pertaining to IEBV4, which
UPC shall direct in writing to MECI)
ITL 18,021,500,000 for Stage B
ITL 3,178,000,000 for Stage C
ITL 3,290,500,000 for Stage D
It is expressly agreed and understood by the Parties that in the
event the Credit Agreement is amended to reflect a change in the MWs
for Stage C and/or Stage D, then the amounts set forth above for the
Equity Portion for Stages C and D (and the corresponding Remaining
Portions and Final
Payments (both defined below)) shall be adjusted to reflect the MWs
actually financed pursuant to the Credit Agreement.
(ii) Within three (3) Business Days following receipt of written
confirmation from IVPC4 that the amounts included in the first
Borrower's Drawdown Certificate for the relevant Stage have been duly
received by IVPC4, MECI shall deposit an amount equal to the
difference between the relevant Initial Payment and the relevant
Equity Portion (the "Remaining Portion") in the UPC Account.
(iii) if, for any reason, a drawdown does not occur within two (2) Business
Days of a Drawdown Date as specified in the relevant first Borrower's
Drawdown Certificate, then UPC shall promptly reimburse to MECI any
amounts paid by it pursuant to paragraph (i) above in respect of the
relevant Stage.
(b) Final Payment.
(i) Within three (3) Business Days of IVPC4 advising MECI of the final
outcome of the Regearing Test, MECI may conduct a re-run of the
Equity Base Case adjusted to take into account the following:
(A) the actual starting dates of the commencement of sale of
electricity from the turbines;
(B) the actual start dates of the CIP6/92 incentive periods and the
projected end dates of such periods;
(C) the actual megawatts constructed and accepted under the
Construction Contract;
(D) any reduction in equity cashflows available to MECI resulting
from the application by the Agent of Clause 18.2 of the Credit
Agreement;
(E) the actual timing of MECI's payments pursuant to Clauses 2.3
(a)(i) and (ii) above;
(F) any amounts paid or payable by IVPC4 in connection with the
provisions of Article 12 of Resolution No. 13/99 of the
Authority for the Electricity and Gas plus any increase in
revenues provided under CIP6 as compensation for any such
amounts and any decrease in costs of interconnection resulting
from the implementation of the above Article 12; and
(G) the projected timing of the making of the Final Payment (as
defined below) by MECI to UPC, and the projected amount that
results from the adjustments made pursuant to these subsections
(A) through (G) inclusive (for the avoidance of doubt, this may
result from an iterative calculation).
(ii) Within three (3) Business Days from the completion of the above re-
runs, MECI shall present to UPC the results of its re-run of the
Equity Base Case (along with an explanation of its application of the
adjustments specified in subparagraphs (A) through (G) inclusive
above), with a view to agreeing with UPC a revised Equity Base Case
(the "Revised Equity Base Case"). Should the Parties fail to reach
agreement, the Parties shall defer the final determination of the
Revised Equity Base Case (other than in respect of the assumptions
under subparagraph (i) (B) above which will be regulated as set forth
below) to KPMG, which shall render its decision within ten (10)
Business Days.
(iii) Should the Revised Equity Base Case show an IRR lower than that
specified in Section 1.2(c) above, then the remaining 10% of the
Purchase Payment shall be reduced to an amount necessary to restore
the IRR to the level specified in Section 1.2(c), down to zero if
necessary (the "Reduction"). MECI shall pay UPC the full remaining
10% of the Purchase Payment, less any Reduction (the "Final
Payment"), within five (5) Business Days from the final determination
of the Revised Equity Base Case.
(iv) In the event that UPC and MECI have different CIP6/92 end date
projections pursuant to subsection (i) (B) above, then the Final
Payment will initially be calculated using MECI's CIP6/92 end dates.
Any difference between the Final Payment amount calculated using
UPC's end date assumptions and the Final Payment amount using MECI's
end date assumptions will be withheld by MECI pending official
confirmation of such end dates. If such confirmation is not given
within two (2) years of the calculation date, then such amount will
no longer be payable to UPC. If such confirmation is provided within
two (2) years of the calculation date, then the relevant amount,
compounded at 15.71% per annum, shall be released to UPC within five
(5) Business Days of such confirmation.
2.4 Put and Call
If the drawdown for Stages A and B does not occur within thirty (30) days
of submittal of the first Borrower's Drawdown Certificate for those Stages,
then MECI shall have the option to put the Interest to UPC for an amount
equivalent to the payments which MECI has made pursuant to Sections 2.3(a)
and 4.0. If MECI does not make the payments under Sections 2.3(a)(i) and
2.3(a)(ii) for Stages A and B, UPC shall have the option to call the
Interest from MECI for an amount equivalent to the payments which MECI has
made pursuant to Sections 2.3(a)(i) and 2.3(a)(ii) and 4.0.
2.5 Late Payments
Any payment due under this Section 2.0 which is late shall accrue interest
until paid at the rate of EURIBOR + 4% per annum. Any undisputed amounts,
or uncontested portions of disputed amounts, shall be paid by the relevant
Party in
accordance with the provisions hereof.
3. EQUITY BASE CASE
3.1 The Parties have agreed on an equity base case for the Project (the "Equity
Base Case"), attached hereto as Schedule II which is the Banking Base Case
with the following assumptions:
(a) wind forecast equal to Hassan Report (attached hereto as Schedule VII)
at Financial Close at a 50% probability of exceedance;
(b) period of any Franchigia not deducted from net power production; and
(c) the timing of the making of the Purchase Payment as specified in
Section 2 above.
Following the application of the above assumptions and limited to the
three-year period ending on 31 December 2002, the Equity Base Case shall
also assume that the Total Operation Cost of IVPC4 shall not exceed the
following amounts:
ITL 349,300,000 during the year 2000;
ITL 2,570,500,000 during the year 2001; and
ITL 8,145,600,000 during the year 2002.
4. FUNDING OF SUBORDINATED DEBT FOR IVPC4
Concurrently with the wiring of funds under subparagraph 2.3 (a) (i) above
for each Stage, MECI shall procure, pursuant to the terms of the
subordinated loan agreement in the form attached hereto as Schedule VIII
(the "IEBV5 Subordinated Loan Agreement") that IEBV5 extends a subordinated
loan to IVPC4 for up to 50% of the equity contribution required to be
contributed to IVPC4 with respect to such Stage under the Senior Loan. For
the avoidance of doubt, the Equity Portion for each Stage paid by MECI
under this agreement shall be those amounts lent by IEBV4 to IVPC4 for such
Stage pursuant to the IEBV4 Subordinated Loan Agreement.
The Parties expressly agree that either UPC or MECI may propose alternative
arrangements with respect to the subordinated loans documented in their
respective subordinated loan agreements and, provided that such proposed
arrangements comply with the terms of the Finance Documents (including the
obtaining of consents, if any, required thereunder), UPC or MECI may
implement said alternative arrangements with the consent of the other
Party, which consent shall not be unreasonably withheld or delayed.
5. NOTE PAYABLE TO PARENT
Simultaneously with the purchase of the Interest and as part of the
consideration paid therefor, UPC shall assign to MECI the promissory note
dated 1 March 2000 (the "Note") in the principal amount of USD 2,013,339.
The agreed form
of both the Note and the assignment thereof being attached hereto as
Schedule IX.
6. CERTAIN OTHER MATTERS.
6.1 Development Costs
(a) Up to Financial Close
UPC has been solely responsible for funding all development expenses
for the Project through Financial Close, which (together with interest
at the rate of EURIBOR plus four percent (4%)) shall be reimbursed
from the initial draw of the Senior Loan. To the extent reasonable
development expenses have been incurred by other UPC Affiliates, such
costs, duly certified by a director of the relevant Affiliate, will be
similarly reimbursed at Financial Close.
(b) Following Financial Close
Reasonable development expenses shall be paid out of the proceeds of
the Senior Loan based on actual budget (not to exceed the Banking Base
Case budget for such expenses).
6.2 AIP Termination Payment
IVPC4 and IVPC Puglia S.r.l. (a company now merged into IVPC4) previously
entered into two Associazione in Partecipazione ("AIP Agreements") with an
Affiliate of UPC, IVPC Energy 3 B.V. ("IEBV3"). In order to facilitate
financing of the Projects IVPC4 and IEBV3 have terminated the AIP
Agreements effective 30 November 1999 (the "AIP Termination Agreements").
The AIP Termination Agreements stipulate that all rights of IEBV3 pursuant
to the AIP Agreements are terminated in exchange for IVPC4 making a payment
to IEBV3 of ITL 2.94 billion. Said AIP termination payment shall be made
not earlier than the First Drawdown, provided the Credit Agreement allows
for such payment.
6.3 Construction Support
MECI shall not have any obligation to provide any credit support with
respect to construction of the Project, including for cost overruns.
6.4 Construction Contingency Distribution
(a) Subject to Section 6.8.2, any Contingent Payments available for
distribution shall be allocated and distributed for the benefit of UPC
solely, and neither IEBV5 nor MECI shall be entitled to any portion
thereof (except for any amounts equal to 50% of any operating cash
flows used by IVPC4 to fund any capital costs or the Debt Reserve
Account in respect of the release of any Security Interest in the land
of
the Project sites, which amounts shall be retained by IEBV5 or MECI),
provided, however, that there shall be no distribution of a Contingent
Payment in an amount equivalent to:
(i) that claimed by any third party against IVPC4 alleging that the
Turnkey Construction Contract was awarded in breach of any
European Community Directive concerning public or utilities
procurement or applicable legislation implementing the same in
Italy for so long as such claim is outstanding; and
(ii) any claims by any third party against IVPC4 in connection with
payments due under the Interconnection Agreements entered into
or to be entered into by IVPC4, for so long as such claims are
outstanding,
(each such retained amount a "Retained Contingency Amount").
For the avoidance of doubt, any Retained Contingency Amount shall be
distributable immediately following satisfaction or termination of the
above referenced claim(s).
(b) Any EU Grants awarded to IVPC4 after the date of this Agreement and
not included in the Banking Base Case shall be for the benefit of the
UPC solely, and neither IEBV5 nor MECI shall be entitled to any
portion thereof.
6.5 Management Responsibility
Following Financial Close, UPC, through its Affiliates, will maintain
management control of the Project, and as such will have responsibility for
the ordinary activities during the construction, post-construction and
operational phases of the Project. UPC's Affiliates will act as
construction manager and operations and maintenance manager for the Project
in accordance with: (i) the management and O&M contracts agreed with the
Senior Lender, and (ii) the budget approved by IVPC4. UPC shall cause
Manager to issue quarterly O&M reports for the benefit of MECI.
6.6 Retained Ownership
(a) UPC and MECI acknowledge that the Quotaholders Agreement attached
hereto as Schedule III contains language governing the disposition of
the quotas of IVPC4, which language reflects the Parties' intent to
restrict subsequent sales of the quotas of IVPC4. UPC and MECI hereby
agree to be bound (and to cause each of their affected lower tier
companies to be similarly bound) by the terms of the Quotaholders
Agreement governing disposition of the quotas of IVPC4 as if each of
them individually were a signatory to the Quotaholders Agreement.
(b) without limiting the generality of the undertaking under paragraph (a)
above, UPC and MECI agree as follows:
(i) neither UPC nor MECI shall dispose of the whole or any part of
their ownership in IVPC4, whether held directly or indirectly,
until 1 September 2004 (the period of time from the effective
date of this Agreement to 1 September 2004 is hereafter referred
to as the "Hold Period");
(ii) following the Hold Period, each of UPC and MECI grants to the
other Party a right of first refusal (to be exercised, to the
maximum extent possible, on the same terms as set out in Clause
8(b)(ii) of the Quotaholders Agreement) in respect of any
contemplated disposal of all or part of the capital of any
Affiliate holding a direct or indirect participation in the
Capital of IVPC4. For the avoidance of doubt, both UPC and MECI
agree that any of their Affiliates holding at any time a direct
or indirect participation in the capital of IVPC4 shall be
maintained as a special purpose company which shall hold the
quotas of IVPC4 as its sole asset.
(c) UPC shall not dispose of any ownership interest in the management and
service companies until after the Project shall have produced the
first 1,500 GWH. After the end of such period, if UPC and FIP together
fail to retain at least a 51% ownership interest in each of the
management and service companies, then, upon MECI's request, UPC shall
use its IVPC4 board votes to terminate the agreements with such
companies.
6.7 FCPA Compliance
Each of UPC and MECI shall cause IEBV4, IEBV5, IVPC4 and each of the other
UPC Affiliates involved in the Project to comply with applicable
provisions of the Foreign Corrupt Practices Act, 15 U.S.C., Section 78a,
78dd-1, 78dd-2, 78ff (the "FCPA").
6.8 Adjustments of Contingent Payments
6.8.1 If any of the payments and/or allocations provided for under Section 6.4
above is not permitted under Applicable Law, such payments and/or
allocations shall not be made and each of MECI and UPC will work together
in good faith (and take action to cause IVPC4) to structure payments and
distributions from IVPC4 to themselves, and if necessary make payments
between themselves regardless of how distributions and/or payments from
IVPC4 are made, so that the Parties will accomplish the business purpose
of the allocations and/or payments described in this Agreement. Any such
payments and/or allocations among IVPC4, UPC and MECI will (a) comply with
all Applicable Laws, (b) be structured in a manner which achieves the
business purposes described herein in the most mutually tax efficient
manner for IVPC4, MECI and UPC, (c) be made on an after-tax basis for the
Person making such payment, and (d) not require either MECI or UPC to pay
the other party more cash than such Person has remaining after deducting
all taxes actually incurred due to the receipt of such funds (directly or
indirectly) from IVPC4.
6.8.2 Any funds received by MECI and/or IEBV5 which represent distributions
of the Contingent Payments referenced in Section 6.4 above may be held
by MECI and/or IEBV5 until the model re-run subsequent to the
Regearing Test, provided that such funds are put into an interest
earning account and the interest earned on such funds shall be for the
benefit of UPC. If as of the date of such model re-run, any third
party has not validly challenged the award of EU Grants to IVPC4, then
MECI and/or IEBV5, as the case may be, shall immediately release said
funds to UPC (plus any interest earned on such amounts). If prior to
the Regearing Test, any third party has validly challenged the award
of EU Grants to IVPC4, then MECI shall be entitled to retain, for as
long as any such challenge is pending, a portion of the Contingent
Payment which is otherwise reasonably necessary to compensate it for
the potential shortfall in cash flows (calculated on a net present
value basis using a 15.71% discount rate, hereinafter called the "NPV
Basis") which it would otherwise be entitled to receive pursuant to
the terms of this Agreement had said challenge not been brought. Upon
final resolution of said challenge (including final appeal by IVPC4 to
the highest authority with jurisdiction over the matter), MECI shall
pay to UPC: (i) the Contingent Payment amounts withheld (plus accrued
interest) in the event that IVPC4 is successful, or (ii) such lesser
amount (plus accrued interest), down to zero, as is required to help
restore the cash flows (NPV Basis) which MECI would have otherwise
received had such challenge to the award of EU Grants to IVPC4 not
been successful.
6.9 UNDERTAKINGS
6.9.1 UPC shall cause IVPC4 to comply in all material respects with the
provisions of Article 15 of Legislative Decree No. 79 of 16 March
1999. For the avoidance of doubt, MECI shall provide all reasonably
practical assistance (excluding the payment of money) to enable UPC to
comply with its obligation.
6.9.2 UPC undertakes, at its cost and expense (including payments from
Contingent Payments distributable to it), to cause IVPC4 to comply, as
appropriate, with Applicable Law relating to height limits and
environmental impact assessments with respect to those Projects for
which the application for the building permits has been filed after 14
March 1999. For the avoidance of doubt, MECI shall provide all
reasonably practical assistance (excluding the payment of money) to
enable UPC to comply with its obligation.
7. REPRESENTATIONS AND WARRANTIES
7.1 UPC
UPC makes the following representations and warranties as of the date
of this Agreement:
(a) Organization. UPC (i) is duly constituted, validly existing and
in good standing under the laws of the Netherlands Antilles, (ii)
is duly qualified, authorized to do business and in good standing
in each jurisdiction where the character of its properties or the
nature of its activities makes such qualification necessary, and
(iii) has all requisite corporate power and
authority (1) to carry on its business as now being conducted and
as proposed to be conducted by it, (2) to own or hold under lease
and operate the property it purports to own or hold under lease,
(3) to execute, deliver and perform each Transaction Document to
which it is a party, and (4) to take all action as may be
necessary to consummate the transactions contemplated thereunder.
(b) Authorization; No Conflict. UPC has duly authorized, executed and
delivered each Transaction Document to which it is a party, and
UPC's execution and delivery thereof, UPC's consummation of the
transactions contemplated thereby, and UPC's compliance with the
terms thereof do not and will not (i) contravene UPC's charter
documents or any Applicable Law binding on UPC or any of UPC's
properties, (ii) contravene or result in any breach of or
constitute any default under, or result in or require the
creation of any lien upon any of UPC's property under any
agreement or instrument to which UPC is a party or by which UPC
or any of UPC's properties may be bound or affected, and (iii)
require the consent or approval of any Person which has not
already been obtained.
(c) Enforceability. This Agreement and each Transaction Document to
which UPC is a party is a legal, valid and binding obligation of
UPC enforceable against UPC in accordance with its terms, except
to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting the enforcement of creditors' rights and
subject to general equitable principles.
(d) With respect to IEBV5:
(i) Organization. IEBV5 (A) is a corporation duly constituted,
validly existing and in good standing under the laws of The
Netherlands, (B) is duly qualified, authorized to do
business and in good standing in each jurisdiction where
the character of its properties or the nature of its
activities makes such qualification necessary, and (C) has
all requisite corporate power and authority (1) to carry on
its business as now being conducted and as proposed to be
conducted by it, (2) to own or hold under lease and operate
the property it purports to own or hold under lease, (3) to
execute, deliver and perform each Transaction Document to
which it is or will become a party, and (4) to take all
action as may be necessary to consummate the transactions
contemplated thereunder.
(ii) Capitalization. The authorized capital stock of IEBV5
consists of 200 shares of common stock, no par value, of
which 46 shares are issued and outstanding. All such issued
and outstanding shares are validly issued, fully paid and
nonassessable and are legally and beneficially owned by UPC
free and clear of any Security Interest. No interest in
IEBV5 is subject to any option,
warrant, right to call or commitment of any kind or
character. No convertible bonds, warrants, options or other
rights have been issued or are outstanding, which may give
right to any Person to subscribe or purchase any part of
the Interest or cause new shares to be issued, nor have any
resolutions been taken or contracts been entered into which
may result in the creation of any of the above rights.
(iii) Authorization; No Conflict. IEBV5 has duly authorized,
executed and delivered each Transaction Document to which
it is a party, and the execution and delivery thereof and
the consummation of the transactions contemplated thereby
and the compliance with the terms thereof do not and will
not (A) contravene its respective charter documents or any
Applicable Law binding on it or its respective properties,
(B) contravene or result in any breach of or constitute any
default under, or result in or require the creation of any
lien (other than permitted liens) upon any of its
respective properties under any agreement or instrument to
which it is a party or by which it or any of its properties
may be bound or affected, and (C) require the consent or
approval of any Person which has not already been obtained.
(iv) Financial Statements. The IEBV5 Financial Statements and
all the accounting books and records required by Applicable
Law have been prepared in compliance with Applicable Law
and Applicable GAAP, are true and complete, and accurately
reflect the economic and financial condition of IEBV5 as of
the dates they were prepared. There are no liabilities not
reflected in the IEBV5 Financial Statements which should
have been reflected in accordance with Applicable GAAP.
Since 31 December 1999, no events or changes have occurred
which have or could materially adversely affect the
condition (financial or otherwise) of IEBV5 as reflected in
the IEBV5 Financial Statements.
(v) Employees. IEBV5 has no employees. To the best of UPC's
knowledge, there are no persons who can claim to be
employed in any form or manner by IEBV5. To the best of
UPC's knowledge, there are no past or present consultants
of IEBV5 who could claim the existence of an employment
relationship with IEBV5.
(vi) Taxes. IEBV5 has complied with all applicable tax, social
security and compulsory insurance laws and regulations in
force from time to time including all direct and indirect
taxes and VAT, or similar charges in any way arising in
connection with tax returns, transactions or acts have been
regularly paid or reserved; all tax or similar declarations
have been properly and timely filed. To the best of UPC's
knowledge, there are no pending or announced proceedings or
assessments against IEBV5, nor any other claims by the tax
or social security authorities with respect to the
activities which IEBV5 conducts nor are there any
circumstances which could give rise to such claims. All
amounts reserved in the IEBV5 Financial Statements for
current and deferred tax and social security liabilities
are adequate for the payment of all taxes, duties or
similar charges, fines and interest for which IEBV5 may be
held liable for any reason whatsoever.
(vii) Business. As of the date hereof, IEBV5 has no material
liabilities except: (i) ownership of the quotas of IVPC4,
(ii) the Note (iii) obligations to Executive Management
Trust arising under the Management Agreement dated as of
28 July 1998, (iv) those liabilities identified in the
IEBV5 Financial Statements, and (v) de-minimus Dutch
taxes.
(viii) Neither UPC nor any of its owners/partners have made or
caused to be made, any elections by or for IVPC4 or
agreements between the quotaholders of IVPC4, other than
the Entity Classification Election - From 8832 (filed for
IVPC4 on 16 February 1997), for the allocation of income,
(loss), deductions, investment interest, credits, taxes,
distributions and debt between the quotaholders of IVPC4
for U.S. Tax purposes.
(e) With respect to IVPC4:
(i) Organization. IVPC4 (A) is a corporation duly constituted,
validly existing and in good standing under the laws of
Italy, (B) is duly qualified, authorized to do business
and in good standing in each jurisdiction where the
character of its properties or the nature of its
activities makes such qualification necessary, and (C) has
all requisite corporate power and authority (1) to carry
on its business as now being conducted and as proposed to
be conducted by it, (2) to own or hold under lease and
operate the property it purports to own or hold under
lease, (3) to execute, deliver and perform each
Transaction Document to which it is or will become a
party, and (4) to take all action as may be necessary to
consummate the transactions contemplated thereunder.
(ii) Capitalization. The authorized capital of IVPC4 consists
of 7,520,000 quotas, par value ITL 1,000, of which
7,520,000 quotas are outstanding. All such outstanding
quotas are fully paid and nonassessable and are
beneficially owned 50% each by IEBV4 and IEBV5 free and
clear of any Security Interest. No interest in IVPC4 is
subject to any option, warrant, right to call or
commitment of any kind or character. No convertible bonds,
warrants, options or other rights have been issued or are
outstanding, which may give right to any Person to
subscribe or purchase any part of the quotas of IVPC4 or
cause new quotas to become outstanding, nor have any
resolutions been taken or
contracts been entered into which may result in the
creation of any of the above rights.
(iii) Financial Statements. The IVPC4 Financial Statements and
all the accounting books and records required by
Applicable Law have been prepared in compliance with
Applicable Law and Applicable GAAP, are true and complete,
and accurately reflect the economic and financial
condition of IVPC4 as of the dates they were prepared.
There are no liabilities not reflected in the IVPC4
Financial Statements which should have been reflected in
accordance with Applicable GAAP. Since 31 December 1999,
no events or changes have occurred which have or could
materially adversely affect the condition (financial or
otherwise) of IVPC4 as reflected in the IVPC4 Financial
Statements.
(iv) Employees. The employees of IVPC4 have been duly
remunerated for all services performed for IVPC4 in
accordance with all Applicable Law and the relevant
employee contracts. All payments due in relation to
severance pay, holidays, insurance, social security
contributions and withholding taxes required by Applicable
Law and the relevant employment contracts have been
regularly effected by IVPC4, or the relevant amounts have
been reserved. The salaries and benefits due to each of
IVPC4's employees and their relevant position of
employment are those which are reflected in the pay
registers of IVPC4. There are no other forms of
remuneration, insurance, pension or severance pay
indemnities, or any agreed items (including fringe
benefits) owed to IVPC4's employees other than those
prescribed by Applicable Law or the employment contracts
with IVPC4. To the best of UPC's knowledge, there are no
persons other than those listed in IVPC4 pay registers who
can claim to be employed in any form or manner by IVPC4.
(v) Taxes. IVPC4 has complied with all Applicable Law
regarding tax, social security and compulsory insurance in
force from time to time including all direct and indirect
taxes and VAT, or similar charges in any way arising in
connection with tax returns, transactions or acts have
been regularly paid or reserved; all tax or similar
declarations have been properly and timely filed. To the
best of UPC's knowledge, there are no pending or announced
proceedings or assessments against IVPC4, nor any other
claims by the tax or social security authorities with
respect to the activities which IVPC4 conducts nor are
there any circumstances which could give rise to such
claims. All amounts reserved in the IVPC4 Financial
Statements for current and deferred tax and social
security liabilities are adequate for the payment of all
taxes, duties or similar charges, fines and interest for
which IVPC4 may be held liable for any reason whatsoever.
(vi) Environmental/Occupational Safety & Health. There is no
apparent visual evidence of environmental contamination at
or above the surface of the sites on which the Project
shall be located. To UPC's knowledge, there is no
underground environmental contamination at any of the
sites on which the Project shall be located. IVPC4 has
duly complied with all Applicable Laws concerning health
and safety in the workplace, and, to the best of UPC's
knowledge, there are no pending or threatened claims,
proceedings or investigations against IVPC4 in relation
thereto. IVPC4 has obtained, or is in the process of
applying for, all necessary environmental authorizations,
environmental concessions, environmental licenses and
environmental permits required for the construction of the
Project.
(vii) Business. IVPC4 has not conducted any business other than
that related to the development, financing, operation or
maintenance of the Project, and IVPC4 does not own any
interest in any Person.
(f) With respect to certain FCPA related matters:
(i) None of UPC, IVPC4, IEBV5 or IEBV4 is owned or controlled,
in whole or in part, directly or indirectly, by any person
with whom a United States Person or a European Community
and/or European Union Person is prohibited from conducting
business pursuant to applicable United States federal or
state laws and regulations or applicable European
Community or European Union laws or regulations as they
exist on the date of this Agreement.
(ii) UPC, in the performance of its obligations with respect to
the Project, confirms that none of UPC or any of UPC's
Affiliates, directors, officers, employees, or their
respective agents, have violated any laws of Italy, The
Netherlands, the United States or any other country which
prohibit any Person from making any payment of money or
providing anything of value, directly or indirectly to any
government official, political party or candidate for
political office.
(iii) Neither UPC, IVPC4, IEBV4, IEBV5 nor any of its directors,
officers or senior managers have ever been convicted of a
serious criminal offence in Italy, the United States of
America or in any other country. Neither UPC, IVPC4,
IEBV4, IEBV5 nor any of its directors, officers or senior
managers have entered into any agreement relating to the
cessation of illegal activities with any governmental
entity or political subdivision of the United States
government, the Italian government, the Dutch government,
the Netherlands Antilles government or the government of
any other country.
(iv) UPC is 75% Controlled, indirectly, by Mr. Xxxxx Xxxxxxx
and 25% beneficially owned and Controlled, indirectly, by
Mr. and Xxx. Xxxxx Xxxxxx. All of the shares of UPC
controlled by Mr. Xxxxx Xxxxxxx are held free and clear of
any Security Interest. All of the shares of UPC
beneficially owned and Controlled by Mr. and Xxx. Xxxxx
Xxxxxx are held free and clear of any Security Interest
that would affect their voting rights in such shares.
(g) Litigation. There are no pending or, to the best of UPC's
knowledge, threatened actions or proceedings of any kind,
including actions or proceedings of or before any Governmental
Authority, to which any of UPC or IEBV5 or IVPC4 is a party or is
subject, or by which any of the properties of any of them are
bound that, if adversely determined to or against UPC or IEBV5 or
IVPC4 would have a material adverse effect, nor, to the best of
UPC's knowledge, is there any basis for any such action or
proceeding.
(h) Exactness of the information supplied. To the best of UPC's
knowledge, all data and information supplied by UPC or its
Affiliates or its consultants to MECI or to its employees,
representatives or consultants during the due diligence and the
negotiations preceding the execution of this agreement were
materially complete, correct and accurate (and no material
information was left undisclosed) as of the date the data and/or
information was tendered to MECI and there are no material events
or information which have occurred or become available between
such date and the date of this Agreement which have not been
brought in writing to the attention of MECI.
7.2 XXXX
XXXX makes the following representations and warranties as of the date
of this Agreement:
(a) Organization. MECI (i) is a corporation duly constituted, validly
existing and in good standing under the laws of The Netherlands,
(ii) is duly qualified, authorized to do business and in good
standing in each jurisdiction where the character of its
properties or the nature of its activities makes such
qualification necessary, and (iii) has all requisite corporate
power and authority (1) to carry on its business as now being
conducted and as proposed to be conducted by it, (2) to own or
hold under lease and operate the property it purports to own or
hold under lease, (3) to execute, deliver and perform each
Transaction Document to which it is a party, (4) to take all
action as may be necessary to consummate the transactions
contemplated thereby.
(b) Authorization; No Conflict. MECI has duly authorized, executed
and delivered each Transaction Document to which it is a party,
and neither MECI's execution and delivery thereof nor MECI's
consummation of the transactions contemplated thereby nor MECI's
compliance with the terms
thereof does or will contravene MECI's articles or by-laws, or
any Applicable Law binding on MECI, or any of MECI's
properties.
(c) Enforceability. Each Transaction Document to which MECI is a
party is a legal, valid and binding obligation of MECI
enforceable against MECI in accordance with its terms, except
to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting the enforcement of creditors' rights and
subject to general equitable principles.
(d) Litigation. There are no pending or, to the best of MECI's
knowledge, threatened actions or proceedings of any kind,
including actions or proceedings of or before any Governmental
Authority, to which MECI is a party or is subject, or by which
MECI or any of MECI's properties are bound that, if adversely
determined to or against MECI, would have a material adverse
effect, nor, to the best of MECI's knowledge, is there any basis
for any such action or proceeding.
7.3 Indemnity.
(a) Without prejudice to all other rights and remedies, if any, available
to MECI under Applicable Law and pursuant to this Agreement, UPC
hereby agrees to indemnify and hold harmless MECI in respect of any
loss or damage suffered by MECI (whether directly or through IVPC4 or
IEBV5) to the extent such loss or damage arises out of the breach of
the representations and warranties contained in Sections 7.1 (d)(iv),
(vi) and (vii), 7.1.(e)(iii) and (v), and 7.1 (f). For the avoidance
of doubt, MECI shall not be entitled to double payment of damages in
respect of the same event, pursuant to different remedies available
under Applicable Law or this Agreement.
(b) Every time a fact or event occurs from which a right to compensation
pursuant to paragraph (a) may arise, MECI shall give written notice
thereof to UPC within ninety days of the day on which it became aware
of such fact or event. The notice shall contain the relevant
information and the indication of the amount claimed and shall be
issued no later than:
(i) one hundred and twenty days after the expiration, for statutory
limitation, of the claims which may be raised by third Parties,
in case of breach to the representations and warranties under
Sections 7.1 (d) (vi), 7.1 (e) (v) and 7.1 (f);
(ii) 30 June 2003, in respect to claims for which an indemnification
may be sought by MECI pursuant to Sections 7.1 (d) (iv) and 7.1
(e) (iii).
(iii) 1 March 2001, in respect to claims for which an indemnification
may be sought by MECI pursuant to Sections 7.1(d)(vii).
(c) Upon receipt of the notice under paragraph (b), MECI and UPC will meet
promptly to resolve amicably any dispute relating to the request from
MECI for an indemnity pursuant to paragraph (a). If the Parties do not
reach an agreement
within thirty days of the request of MECI (or within a further period
of thirty days in case of mutually agreed extension of the above term)
the claim of MECI may be submitted to arbitration pursuant to
paragraph 9.10.
8. CONFIDENTIALITY AND PUBLICITY
MECI shall keep and ensure that each of its officers, directors,
agents, employees and advisers shall keep the UPC Information (as
defined below) in strictest confidence, and UPC shall keep and ensure
that each of its officers, directors, agents, employees and advisers
shall keep the MECI Information (as defined below) in strictest
confidence, in each case for use only in connection with the Project.
For this purpose, (i) "UPC Information" means the wind data (including
the Hassan Report), financial information concerning UPC and its
Affiliates, and any other documents or information delivered to MECI
in connection with MECI's due diligence and continuing ownership of
IVPC4, and "MECI Information" means financial information concerning
MECI and its Affiliates (including IEBV5), (ii) the Transaction
Documents are both UPC Information and MECI Information, and (iii) any
other information disclosed by one party (or their Affiliates) to the
other in writing and marked as 'Confidential', or disclosed orally but
promptly identified in writing as 'Confidential' shall be confidential
information of the disclosing party following receipt of such written
identification. Except as required by law, neither party shall issue
any statement or communication to the public regarding the
transactions contemplated hereunder without the prior written consent
of the other party.
The confidentiality obligations under Section 8 shall not apply to the
following information: (i) information which is or becomes part of the
public domain other than as a result of a breach of this Agreement;
(ii) information which was known to the receiving party (other than
through a breach of this Agreement) before being disclosed to the
receiving party by the disclosing party; and (iii) information which
is required to be disclosed pursuant to Applicable Law (provided that
the disclosing party shall seek to minimise such disclosure).
Notwithstanding the above, disclosure of relevant confidential
information may be made to any Person (including the Parties): (i)
proposing to purchase an interest in the Project, or (ii) who is a
potential financing source for the Project or (iii) who is an advisor,
Affiliate or employee of any of the above Persons, provided in each
case that the party wishing to disclose such confidential information
receives the prior written consent of the other party to this
Agreement (such consent not to be unreasonably withheld or delayed)
and the Person enters into a confidentiality agreement with terms
comparable to those specified herein.
9. MISCELLANEOUS
9.1 Notices and Payments.
Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing, shall be addressed as provided
below and shall be
considered as properly given (i) if delivered in person, (ii) if sent
by overnight delivery service (including Federal Express, ETA, Xxxxx,
Purolator, DHL, Air Borne and other similar overnight delivery
services), (iii) if overnight delivery services are not readily
available, if mailed by first class mail, postage prepaid, registered
or certified with return receipt requested or (iv) if sent by telecopy
with a confirming copy sent by courier or first class mail as provided
in clauses (ii) and (iii). Notice so given shall be effective upon
initial receipt by the addressee; provided, however, that if any
notice is tendered to an addressee and the delivery thereof is refused
by such addressee, such notice shall be effective upon such tender.
For the purposes of notice, the addresses of the Parties shall be as
set forth below; provided, however, that any party shall have the
right to change its address for notice hereunder to any other location
by giving of thirty (30) days' prior written notice to the other party
in the manner set forth above. The initial addresses of the Parties
hereto are as follows:
(1) MECI: Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Attention: General Counsel
Fax: x00 000 000 0000
(2) UPC: UPC International Partnership CV II
c/x Xxxxxx and Company
0000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxx
Xxxxx X. Xxxx, Esq.
Fax: + 0 (000) 000-0000
Payments. All payments required or permitted hereunder shall be made
in lawful currency of the Italian Republic to one or more accounts
designated by the receiving party pursuant to a notice delivered to
the other party in the manner set forth above.
9.2 Waivers.
Any Party's failure at any time to require strict performance by the
other Party of any of the provisions hereof shall not waive or
diminish the first Party's right thereafter to demand strict
compliance therewith or with any other provision. None of the
conditions or provisions of this Agreement shall be held to have been
waived by any act or knowledge of a Party, its agents or employees,
but only by an instrument in writing signed by an officer of such
Party and delivered to the other Party.
9.3 Survival and Termination of Agreement.
All covenants, agreements, representations and warranties made herein
and in the certificates and other documents delivered pursuant hereto
shall continue in
full force and effect so long as any of the rights or obligations
remain unsatisfied, whereupon this Agreement shall terminate.
9.4 Successors and Assigns.
No assignment or transfer (by operation of law or otherwise) of this
Agreement by either Party hereto of any of its rights or duties
hereunder may be made without the prior written consent of the other
Party hereto, provided that either Party shall have the right to
assign its rights and obligations hereunder to an Affiliate. All
covenants, promises and agreements by or on behalf of any Party which
are contained in this Agreement shall inure to the benefit of the
successors and assigns of the other Party.
9.5 Severability.
In case any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
9.6 Accounting Terms.
All accounting terms not specifically defined herein shall be
construed and computed in accordance with Applicable GAAP.
9.7 Headings.
Headings in this Agreement are for convenience of reference only and
are not part of the substance hereof.
9.8 Counterparts.
This Agreement may be executed in any number of identical
counterparts, any set of which signed by all the Parties hereto shall
be deemed to constitute a complete, executed original for all
purposes.
9.9 Good Faith.
The Parties hereto shall act in good faith and fair dealing with
respect to the transactions contemplated under this Agreement.
9.10 Arbitration.
(i) Any controversy, claim or dispute between the Parties arising out
of or related to this Agreement or the breach, termination or
invalidity hereof, which cannot be settled amicably by the
Parties, shall be submitted for arbitration in accordance with
the provisions contained herein and in accordance with the
International Chamber of Commerce Arbitration Rules of the
International Chamber of Commerce of Paris as at present in force
("Rules"). Judgement upon the award rendered by the arbitrators
may be entered in any court having jurisdiction. The
decision of the arbitrators shall be final, and each of the
Parties waives any right to appeal any decision reached by
the arbitrators. The arbitrators shall determine all
questions of fact and law relating to any controversy,
claim or dispute hereunder, including but not limited to
whether or not any such controversy, claim or dispute is
subject to the arbitration provisions contained herein;
(ii) any Party desiring arbitration shall serve on the other
Party and any other applicable Person, in accordance with
the aforesaid Rules, its notice of arbitration
("Arbitration Notice"), accompanied by the name of the
arbitrator selected by the Party serving the Arbitration
Notice. Failing the other Party's acceptance of the
selected arbitrator or the Parties' agreement on a single
mutually acceptable arbitrator, a second arbitrator shall
be chosen by the other Party, and a third arbitrator shall
be chosen by the two arbitrators so selected and act as
presiding arbitrator of the tribunal. If the Party upon
whom the Arbitration Notice is served fails to accept the
first Party's arbitrator, agree with the first Party upon a
single mutually acceptable arbitrator or advise the other
Party of its selection within thirty (30) days after the
receipt of the Arbitration Notice, the second arbitrator
shall be selected by the appointing authority. If the two
arbitrators so chosen cannot agree upon a third arbitrator
within ten (10) days after the appointment of a second
arbitrator, the third arbitrator shall be selected by the
International Chamber of Commerce of Paris (the "ICC"),
which shall be the appointing authority and administering
authority in accordance with the Rules; provided that, the
-------- ----
Parties may strike the names of arbitrators proposed by the
ICC from a first and a second list to select the third
arbitrator, and the ICC shall only select such arbitrator
in its discretion if all those proposed by the ICC on the
two lists are rejected by the Parties. The arbitration
proceedings provided hereunder are hereby declared to be
self-executing, and it shall not be necessary to petition a
court to compel arbitration ;
(iii) all arbitration proceedings shall be held in London,
England. The language to be used in the arbitration
proceedings shall be English;
(iv) a demand for arbitration shall be made within reasonable
time after the claim, dispute or other matter in question
has arisen and in no event shall it be made after the date
when institution of legal or equitable proceedings based on
such claim, dispute or other matter in question would be
barred by the applicable statutes of limitations; and
(v) if either Party to this Agreement is adjudged to have
violated the obligation of acting in good faith imposed by
Section 9.9 hereof, the arbitrators shall consider an award
of consequential and other appropriate damages against the
Party so violating the obligation of acting in good faith.
9.11 Waiver of Jury Trial
Each Party hereby knowingly, voluntarily, and intentionally
waives any rights they may have to a trial by jury in respect of
any litigation based hereon, or arising out of, under, or in
connection with, this agreement, or any course or conduct,
course of dealing, statements (whether verbal or written), or
actions of either Party. This provision is a material inducement
for each Party to enter into this Agreement.
9.12 Attorneys' Fees.
In a suit or proceeding brought or instituted by any Party to
this Agreement to enforce or interpret any of the provisions of
this Agreement or on account of any damages sustained by any
Party by reason of the violation of another Party of any of the
terms or provisions of this Agreement, the prevailing Party
shall be entitled to recover reasonable attorneys' fees and
expenses in such amount as shall be fixed by the arbitrators.
9.13 Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of England, with the exception of the transfer of
the Interest, which will be governed by Dutch law.
9.14 Transaction Costs.
Each Party shall be responsible for its own costs and expenses
(including advisors and counsel) resulting from the evaluation,
due diligence and negotiation related to the transaction(s)
contemplated by this Agreement.
9.15. Civil Law Notary Xxxxx Dutilh
MECI is aware of the fact that Maitre X.X.Xx. van Dijk or any
other civil law notary of Xxxxx Dutilh, advocates, civil law
notaries and tax advisors or any of their deputies (the "Civil
Law Notary") is working at Xxxxx Dutilh, being the offices of
the external legal counsel of UPC, IEBV5 (prior to transfer of
the shares), and IEBV4 with respect to the share transfer
contemplated by this Agreement. With reference to Articles 9 and
10 of the Directives with respect to the co-operation between
Civil Law Notaries and Lawyers ("Richtlinnen met betrekking tot
vormen van samenwerking van notarissen onderling met
advocaten"), as concluded on 1 April 1997 by the board of the
Royal Notarial Professional Organization ("Koninklijke Notariele
Beroepsorganisatie"), MECI hereby explicitly agrees to the fact
that UPC, IEBV5 (prior to transfer of the shares), and IEBV4
will be represented by Xxxxx Dutilh on account of the share
transfers contemplated by the Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement in
Switzerland as of the date and year first written above.
MEC INTERNATIONAL B.V. UPC INTERNATIONAL PARTNERSHIP CV II
By: _____________________ By:____________________________
Xxxxx X. Xxxxxxx
Managing Director
SCHEDULE I
SCHEDULE OF DEFINITIONS AND RULES OF INTERPRETATION
Definitions
-----------
"Affiliate" of a Person (the "First Person") means a Person which directly or
indirectly Controls, or is Controlled by, or is under common Control with, the
First Person, and shall also include any limited partnership of which the First
Person or Affiliate thereof is the general partner of the First Person.
"AIP Agreement" has the meaning set forth in Section 6.2.
"AIP Termination Agreement" has the meaning set forth in Section 6.2.
"Applicable GAAP" means generally accepted accounting principles and practices
as in effect in the applicable jurisdiction from time to time, consistently
applied.
"Applicable Law" means all laws, rules, regulations, ordinances, orders, codes,
judgements, decrees, injunctions, permits and similar forms of decision of any
Governmental Authority having jurisdiction over the matter in question, whether
existing as of the date hereof or hereinafter enacted, including relevant
European Union laws and regulations, which are applicable to the Person in
question.
"Banking Base Case" has the meaning provided in Section 3.1.
"Borrower's Drawdown Certificate" shall have the meaning provided in the Credit
Agreement.
"Business Day" means a day (other than a Saturday or a Sunday) on which banks
and foreign exchange markets are open for business in Rome, Milan, New York,
London and Amsterdam.
"Closing Date" means, for any of the Senior Loan or a Subordinated Loan, the
date on which the agreement pertaining to such loan is executed.
"Construction Loan" means a construction loan under the Senior Loan.
"Contingent Payments" has the meaning provided in the Credit Agreement.
"Consulting Services Agreement" means the consulting services agreement in the
form attached hereto as Schedule IV to be entered into between IVPC Gestione
S.r.l. and Edison Mission Italia S.r.l.
"Contractor" means IWT-Italian Wind Technology S.r.l.
"Control" of a Person means the ownership, directly or indirectly, of more than
fifty percent (50%) of the voting rights for management decision-making purposes
of that Person.
"Conversion Date" means any date on which a portion of any Construction Loan
converts to the relevant Term Loan pursuant to the terms of the Senior Loan, or
if such conversion does not occur, then the date when the affected portion of
the Project is refinanced, sold or otherwise disposed of.
"Costs Side Letter" means the side letter dated 3 March 2000 between the Parties
in respect of granted cost limits.
"Credit Agreement" means the agreement evidencing the Senior Loan, and any
replacement thereto.
"Deeds of Pledge" means the deeds of pledge (scrittura per la costituzione di
pegno) to be executed by IEBV5 and IEBV4, with respect to their quota interests
in IVPC4, in favor of Senior Lender.
"Disbursement Account" means the bank account with National Westminster Bank
plc, Milan Branch, Xxx Xxxxxx 00, 00000 Xxxxx - IVPC4 Disbursement Account No.
20-50247.
"Equity" has the meaning provided in the Credit Agreement.
"Equity Portion" has the meaning set forth in Section 2.3.
"EU Funds" means amounts awarded and actually delivered to IVPC4 by any Regione
or Regioni of the Italian Republic out of funds provided to such Regione or
Regioni by the European Union.
"Final Payment" has the meaning set forth in Section 2.3.
"Finance Document" has the meaning provided in the Credit Agreement.
"Financial Close" means the Closing Date for the Credit Agreement.
"FIP" means Finance Investment Projects S.r.l.
"Franchigia" means the maximum period with no penalties for which the power
purchaser under the power purchase agreements is allowed to suspend the power
offtake, due to operational and maintenance requirements.
"Governmental Authority" means any federal, national, regional, provincial,
state or local government authority, agency, court or other body, officer or
public entity, including any zoning authority, building inspector, or health or
safety inspector.
"GWH" means gigawatt hour.
"Hassan" means Xxxxxx Xxxxxx and Partners Limited.
"Hassan Report" means the wind data report prepared by Hassan in relation to the
Project attached hereto as Schedule VII.
"Hold Period" has the meaning provided in Section 6.6.
"IEBV4" means IVPC Energy 4 B.V., a company organized under the laws of The
Netherlands.
"IEBV4 Subordinated Loan Agreement" means the loan agreement, attached hereto as
Schedule VIII, substantially identical to the IEBV5 Subordinated Loan Agreement
to be entered into by IEBV4 and IVPC4.
"IEBV5" means IVPC Energy 5 B.V., a company organized under the laws of The
Netherlands.
"IEBV5 Financial Statements" means the unaudited financial statements of IEBV5
as at 31 December 1999, attached hereto as Schedule VI.
"IEBV5 Subordinated Loan Agreement" has the meaning set forth in Section 4.0.
"Initial Payment" has the meaning set forth in Section 2.3.
"Interest" has the meaning provided in Section 2.1.
"IRR" means the internal rate of return on capital for MECI, being the number in
the cell adjacent to the cell marked "IRR" in the Equity Base Case.
"IVPC4 Financial Statements" means the audited financial statements of IVPC4 as
at 31 December 1999, attached hereto as Schedule VI.
"IVPC4 Quotaholders Agreement" means the Agreement to be entered into between
IEBV4 and IEBV5, attached hereto as Schedule III.
"EURIBOR" has the meaning set forth in the Credit Agreement.
"Mediocredito" means Mediocredito Centrale S.p.A. a bank organized under the
laws of the Italian Republic.
"MW" means megawatt.
"Net Cash Flow" means Operating Cash Flow less senior debt service.
"Note" has the meaning set forth in Section 5.0.
"Opened Stage" has the meaning set forth in Section 2.3.
"Permit Side Letter" means the side letter dated 3 March 2000 between the
Parties in respect of permits.
"Person" means any individual, partnership, joint stock company, corporation,
trust, unincorporated association or joint venture, a government or any
department or agency thereof, or any other entity.
"Project" means all of the Stages, collectively, and includes the Rocca San
Xxxxxx Project.
"Purchase Payment" means the amounts referred to in Section 2.3.
"Reduction" has the meaning set forth in Section 2.3.
"Regearing Test" has the meaning ascribed to it in the Credit Agreement.
"Remaining Portion" has the meaning set forth in Section 2.3.
"Retained Contingency Amount" set forth in Section 6.4.
"Revised Equity Base Case" has the meaning provided in Section 2.3.
"Rocca San Xxxxxx Project" means the 2.4 MW wind energy project located in the
commune of Rocca San Xxxxxx.
"Rules" has the meaning set forth in Section 9.10.
"Senior Lender" means Mediocredito, and includes any successor thereto.
"Senior Loan" means any senior secured non-recourse loan.
"Stage" or "Stages" has the meaning provided in Recital C.
"Subordinated Loans" means the subordinated loans to be extended by IEBV5 and
IEBV4 pursuant to the IEBV4 Subordinated Loan Agreement and the IEBV5
Subordinated Loan Agreement.
"Term Loan" means a term loan under the Senior Loan for any of Stage A, Stage B,
Stage C, and Stage D.
"Transaction Documents" means the Shareholder Interest Purchase Agreement, the
Subordinated Loan Agreements, and the Deeds of Pledge.
"UPC Account" means the bank account with Bank X. Xxxxxxxx & Co. Ltd. in the
name of UPC International N.V., with the following wire instructions: Chase
Manhattan Bank, New York, NY, Swift Code XXXXXX00, ABA # 021 0000 21, Bank X.
Xxxxxxxx & Co. Ltd., Swift Code XXXXXXXX, Account No. 000-0-000000, UPC CV
(Attn: Xx. Xxxxxxx Xxxxxxx).
"UPC Financial Statements" means the unaudited financial statements of UPC
attached hereto as Schedule VI.
Interpretation
All capitalised terms not expressly defined in this Agreement shall have the
same meaning as in the Credit Agreement.
All terms defined in this agreement in the singular form shall have comparable
meanings in the plural form and vice versa.
All references to "Lira" or "ITL" shall refer to Italian Lira, or equivalent
amount in one or more foreign currencies.
A reference to an Applicable Law includes any amendment or modification to such
Applicable Law.
A reference to a Person includes such Person's permitted successors and
permitted assigns.
The words "include", "includes" and "including" and words of similar import are
not limiting or exclusive.
A reference in a document to an Article, Section, Exhibit, Schedule, Annex,
Attachment or Appendix is to the Article, Section, Exhibit, Schedule, Annex,
Attachment or Appendix of such document unless otherwise indicated.
In this Agreement, references to Schedules, the Permit Side Letter and the Costs
Side Letter shall be deemed incorporated into this Agreement by reference and
shall be part hereof.
References to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
and (c) means such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified and supplemented from time to time and
in effect at any given time.
The words "hereof," herein" and "hereunder" and words of similar import when
used in any document shall refer to such document as a whole and not to any
particular provision of such document.
References to "days" means calendar days, unless the term "Business Days" is
used. References to a time of day means such time in Milan, Italy unless
otherwise specified.
This document is the result of negotiations between, and has been reviewed by
the Parties hereto and their respective counsel. Accordingly, it shall be
deemed to be the product of all Parties thereto, and no ambiguity shall be
construed in favor of or against any party.
A reference in any representation to "the best of UPC's knowledge" shall mean to
the best of UPC's knowledge following appropriate inquiry into the matter in
question.
SCHEDULE II
EQUITY BASE CASE
SCHEDULE III
QUOTAHOLDERS AGREEMENT
SCHEDULE IV
CONSULTING SERVICES AGREEMENT
SCHEDULE V
FORM OF NOTARIAL DEED
SCHEDULE VI
UPC FINANCIAL STATEMENTS
IEBV5 FINANCIAL STATEMENTS
IVPC4 FINANCIAL STATEMENTS
SCHEDULE VII
XXXXXX XXXXXX WIND REPORT
(to be attached)
SCHEDULE VIII
SUBORDINATED LOAN AGREEMENTS
(IEBV4 AND IEBV5)
SCHEDULE IX
AGREED FORM OF NOTE AND ASSIGNMENT THEREOF