EXHIBIT ___
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment"), dated June 29,
1997, by and between NGC Corporation, a Delaware corporation ("NGC"), and The
AES Corporation, a Delaware corporation ("Parent").
WHEREAS, NGC and Parent are parties to that certain Asset Purchase
Agreement dated as of February 17, 1997 (the "Asset Purchase Agreement"); and
WHEREAS, NGC and Parent desire to amend the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, NGC and Parent hereby agree as follows:
1. The Disclosure Schedule to the Asset Purchase Agreement is deleted in
its entirety and the Disclosure Schedule attached hereto is substituted in lieu
thereof.
2. The first recital to the Asset Purchase Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
WHEREAS, simultaneously with the execution and delivery hereof, NGC,
NGC Acquisition Corporation II, a Delaware corporation and subsidiary of
NGC, Destec Energy, Inc., a Delaware corporation (the "Company"), and The
Dow Chemical Company, a Delaware corporation ("Dow"), are entering into an
agreement and plan of merger (the "Merger Agreement") pursuant to which the
Company has agreed to merge with NGC Acquisition Corporation II (the
"Merger").
3. The third recital to the Asset Purchase Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
WHEREAS, Parent desires to, or to cause one or more wholly-owned
subsidiaries to (Parent and such subsidiaries, collectively, "Purchaser"),
buy, and on the next business day following the Merger, NGC desires to
cause the Company to sell the international businesses and assets of the
Company and its subsidiaries, and Purchaser is willing to assume certain
related liabilities and obligations of the Company and its subsidiaries,
all upon the terms and conditions hereinafter set forth; and
4. The first paragraph of Section 1.1 of the Asset Purchase Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
Section 1.1 Purchase and Sale of the International Assets. Subject
to the terms and conditions of this Agreement, on the Closing Date (as
hereinafter defined), NGC shall cause the Company to sell, convey, assign,
transfer and deliver (or cause to be sold, conveyed, transferred and
delivered) to Purchaser, and the Purchaser shall purchase and acquire the
international assets of the Company as of the Closing Date, including,
without limitation, all of the Company's or its Subsidiaries' (as defined
in the Merger Agreement) right, title and interest in and to the following:
5. Subparagraph (i) of Section 1.1 of the Asset Purchase Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
(i) all of the issued and outstanding shares of capital stock (or
their equivalent under local law) (the "Purchased Shares") as set forth in
Part I-A of Schedule 1.1 of the disclosure schedule attached hereto (the
"Disclosure Schedule") (provided that the Purchased Shares set forth in
clause (B) of said Part I-A shall not be conveyed until after the Purchased
Shares set forth in clause (A) thereof have been conveyed to Purchaser),
which when delivered to Purchaser at the Closing (as hereinafter defined)
(x) will be free and clear of any liens, claims, security interests,
charges, leases, licenses or sublicenses created by, through or under (A)
NGC or (B) the Company or any of its affiliates (other than the
International Entities) from and after the Effective Time ("Liens"), and
(y) will cause all of the issued and outstanding shares of capital stock
(or their equivalent under local law) of each of the entities (the
"International Entities") set forth in Part I-B of Schedule 1.1 of the
Disclosure Schedule to be (directly or indirectly) sold, conveyed,
transferred and delivered to Purchaser.
6. Subparagraph (ii) of Section 1.1 of the Asset Purchase Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
(ii) all rights, options and other interests in projects or projects
in development outside of the United States, including those set forth in
Part II of Schedule 1.1 of the Disclosure Schedule; provided, however, that
this clause (ii) shall not include (x) any and all rights, options and
other interests in those projects or projects in development outside of the
United States known as Kingsnorth, EEA BOOT -Egypt, CAES Morocco,
Petrobras, Cogera, and
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Egasa/Egesur (provided that with respect to the project in development
known as Egasa/Egesur, the only rights and interests that are included in
this clause (x) are the right to bid as a prequalified entity, the stock of
Destec Norperu, S.A., Destec Piura, S.A., and Destec Electropiura, S.A.,
and the right to retain a copy of all files (the "Peru Files") with
relation to such project; provided further that with respect to the Peru
Files to be conveyed to Purchaser hereunder, the Company may redact from
the Board presentation included therein any proprietary financial
information relating to its targeted rate of return requirements and
similar proprietary financial information) and (y) any and all rights,
options and other interests relating to (1) the provision of operation and
maintenance services for gas turbine power generation facilities in India
resulting from the activities and operations of Destec Operating Company,
including, but not limited to, those projects or projects in development
known as Guna/STI,. Power Ltd., Xxxxxx Xxxxx, RPG, Reliance, Peeraj, Xxxxxx
& Toubro, and Coastal and (2) the stock of Destec Australian Investments,
Inc. and Destec Holdings, Inc.(collectively, the "Excluded Projects"), all
rights with relation to which shall be retained by the Company and none of
which shall be deemed International Assets or International Businesses as
such term is defined below) except for the project known as Kingsnorth,
which shall be deemed an International Asset for purposes of Sections
1.6(c) and (d) only; and provided further that in the event any right,
option, or other interest in any Excluded Project is currently held by any
entity listed on Part I of Schedule 1.1 of the Disclosure Schedule, such
right, option or other interest shall be transferred to the Company, or one
or more of its Subsidiaries that are not listed on Part I of Schedule 1.1
of the Disclosure Schedule, without warranty or recourse of any kind as
between Purchaser and the International Entities, on the one hand, and the
Company and such Subsidiaries, on the other hand except as to liens and
encumbrances first created by through or under Purchaser or any of the
International Entities from and after the later of the Closing Date and the
date of such transfer, prior to the Closing, provided that (x) the Company
shall be responsible for obtaining all consents and approvals necessary for
such transfer, and (y) in no event shall the Closing be delayed because of
the Company's failure to obtain any consents or approvals necessary to
allow transfer of such right, option or other interest to the Company or
such Subsidiary.
7. Section 1.3 of the Asset Purchase Agreement is deleted in its entirety
and the following is substituted in lieu thereof:
Section 1.3 Assumed Liabilities. (a) At the Closing, Purchaser shall
deliver to the Company an
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undertaking (the "Assumption Agreement") in the form to be agreed upon
whereby Purchaser, on and as of the Closing Date, assumes and agrees to
pay, perform and discharge when due (or promptly reimburse the Company to
the extent the Company or its affiliates are required to make payments
after the Closing Date on account of) (i) the liabilities and obligations
of the Company and its Subsidiaries primarily attributable to the
International Assets including, without limitation, the liabilities and
obligations listed on Schedule 1.3 of the Disclosure Schedule, (ii) with
respect to any corporate liabilities of the Company unknown to NGC or
Parent that are not primarily attributable to the International Assets or
to the Company's domestic assets, a pro rata portion of such corporate
liabilities calculated based on a fraction the numerator of which is the
Purchase Price and the denominator of which is the Merger Consideration (as
defined in the Merger Agreement), (iii) all liabilities and obligations
with respect to the International Employees described in Section 6.2,
including, without limitation, all liabilities and obligations relating to
the International Employees under (a) the Destec Energy, Inc. 1996 Variable
Pay Plan, (b) the Destec Energy, Inc. 1995 Variable Pay Plan, (c) the
Destec Special Recognition Award (SRA) Program, (d) the Destec Energy, Inc.
Amended and Restated 1990 Award and Option Plan, and (e) the Destec Foreign
Service Policy, (iv) all severance costs, obligations under employment
agreements and consulting agreements, and employee benefit liabilities
arising as a result of (I) the termination of employment of any
International Employees from and after the Closing Date or (II) the
transactions consummated under this Agreement in respect of the
International Employees (the cost, obligations and liabilities under this
clause (iv) are collectively the "International Employee Obligations"), (v)
each liability or obligation relating to any International Employee (with
respect to employee benefit plans, in excess of any assets owned by the
Company or the Subsidiaries and directly related to such plan or held by
any trust with respect thereto sponsored or maintained by the Company or
the Subsidiaries (other than the International Assets) which are available
to satisfy or otherwise offset such liability or obligation), relating to
any bonus, deferred compensation, incentive compensation, stock purchase,
stock option, restricted stock, deferred stock, stock appreciation right,
vacation policy, superannuation, severance or termination pay,
hospitalization or other medical, life or other insurance, flexible
benefit, cafeteria plan, supplemental unemployment benefits, profit
sharing, pension, or retirement plan, program, agreement or arrangement,
employment agreements, consulting agreements and each other employee
benefit plan, program, agreement or arrangement, sponsored, maintained or
contributed to by the Company or its Subsidiaries (the "International
Employee Plans"), (vi) 50% of all severance costs, obligations under
employment agreements, and employee benefit liabilities, including, without
limitation, under any employee benefit plan,
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program, agreement or arrangement sponsored, maintained or contributed to
by the Company or its Subsidiaries (collectively, "Severance Costs")
arising as a result of the termination of Keys X. Xxxxx, Xx., the Company's
President and Chief Operating Officer, such amount to be increased, on a
dollar-for-dollar basis (to a maximum of 100% of all Severance Costs
arising as a result of the termination of Keys X. Xxxxx, Xx.) by the
Severance Costs avoided by Purchaser as a result of NGC's (or any of its
affiliates') hiring any of the International Employees, and (vii) all
obligations and liabilities with respect to transfer stamp taxes or similar
taxes arising in connection with the purchase of the International Assets
by Purchaser. The liabilities and obligations assumed by Purchaser in
accordance with this Section 1.3 are hereinafter referred to as the
"Assumed Liabilities."
(b) Notwithstanding anything above to the contrary, the parties agree
that, with respect to that certain Settlement Agreement dated May 6, 1994,
between Ontario Hydro, a corporation continued pursuant to the Power
Corporation Act, R.S.O. 1990 c. P-18 amended, Kingston CoGen Limited
Partnership, an Ontario limited partnership ("KCLP") and the Company (the
"Settlement Agreement"), (i) any liabilities arising under the Settlement
Agreement as a result of KCLP entering into an Additional PPA (as such term
is defined in the Settlement Agreement) from and after the Closing shall be
deemed Assumed Liabilities, and (ii) any liabilities arising under the
Settlement Agreement as a result of the Company entering into an Additional
PPA from and after the Closing shall be deemed Excluded Liabilities.
8. Section 1.5 of the Asset Purchase Agreement is deleted in its entirety
and the following is substituted in lieu thereof:
Section 1.5 Closing. Unless this Agreement shall have been
terminated and the transactions contemplated herein shall have been
abandoned pursuant to Section 8.1 hereof prior to the Effective Time (as
defined in the Merger Agreement), the closing of the transactions
contemplated by this Agreement (the "Closing") will take place after all of
the conditions herein or incorporated herein are satisfied or waived (which
satisfaction or waiver shall be determined prior to the Effective Time) on
the next business day following the Effective Time (as defined in the
Merger Agreement), at
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the offices of Xxxxxx & Xxxxxx L.L.P., 2300 First City Tower, 0000 Xxxxxx
Xx., Xxxxxxx, Xxxxx 00000-0000, unless an earlier date or place is agreed
to in writing by the parties hereto. The date on which the Closing occurs
is referred to herein as the "Closing Date."
9. Section 1.6(a) of the Asset Purchase Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
(a) In consideration for the International Assets and subject to the
terms and conditions of this Agreement, Purchaser shall (i) on the Closing
Date, assume the Assumed Liabilities as provided in Section 1.3 hereof
pursuant to the Assumption Agreement, and (ii) on the date of closing under
the Merger Agreement (the "Merger Closing Date"), transfer to or to the
order of the Company in immediately available funds in New York City an
amount equal to U.S. 407,055,000 (the "Original Base Purchase Price"), as
adjusted in accordance with the provisions of this Section 1.6 (the
"Purchase Price"). In addition, based upon the parties' preliminary
analysis of the allocation of net cash flow between the Company and its
Subsidiaries (other than the International Assets) and the International
Assets for the period from January 1, 1997 to the Closing Date, Purchaser
shall pay to the Company on the Closing Date, a preliminary adjustment
equal to U.S. $29,000,000 by wire transfer of immediately available funds
(the "Preliminary Adjustment Amount"; the Original Base Purchase Price plus
the Preliminary Adjustment Amount hereinafter referred to as the "Base
Purchase Price").
10. Section 1.6(b) of the Asset Purchase Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
(b) One business day prior to the proposed Effective Time, Purchaser
shall deposit the Original Base Purchase Price in trust with the Paying
Agent (as defined in the Merger Agreement) in a segregated account (the
"AES Fund"). The Paying Agent shall be authorized to release the AES Fund
upon the occurrence of the Effective Time. If the Effective Time has not
occurred by 12:00 noon on the second business day after the AES Fund was
initially deposited, or such later date or time as Parent in its sole
discretion may agree, NGC shall instruct the Paying Agent to return the AES
Fund to Purchaser including all interest earned thereon. Upon release of
the AES Fund other than to Purchaser, NGC shall instruct the Paying Agent
to promptly pay the interest earned on the AES Fund until the Effective
Time of the Merger to Purchaser.
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11. Section 1.6(c) of the Asset Purchase Agreement is hereby amended by
adding the following phrase at the end of the first sentence thereof:
For purposes of determining net cash flow, overhead costs that are not
primarily attributable to either the Company's domestic assets or the
International Assets shall be allocated in the proportion of 2/3 to the
Company's domestic assets and 1/3 to the International Assets.
12. The following provision shall be inserted at the end of Section 1.6 of
the Asset Purchase Agreement:
(e) In the event NGC or the Company is able to cause the project in
development known as Kingsnorth, which project is being retained by the
Company pursuant to the provisions of Section 1.1(ii), either (A) to
achieve financial closing, or (B) to be sold to a third party, NGC shall
pay Parent, or cause Parent to be paid, the sum of (i) U.S. $1,000,000 plus
(ii) all unreimbursed costs and expenses incurred by the Company and its
Subsidiaries relating to the project known as Kingsnorth for the period
from and including January 1, 1997 to and excluding the Closing Date less
U.S. $500,000, as an adjustment to the Purchase Price; provided, that in
the event of a sale of such project under clause (B) above, the payment NGC
is required to make to Parent under this clause (e) shall not exceed the
amount of any proceeds received by NGC, the Company or any of their
respective affiliates as a result of such sale. It is agreed and
understood that all matters relating to the development of the Kingsnorth
project shall be at the sole discretion of the Company and NGC, and that,
in the event the Company and NGC elect not to proceed with the development
of the Kingsnorth project (including the financial closing thereof) for any
reason, neither NGC, the Company, nor any of their respective affiliates
shall have any liability to Parent or any of its affiliates with respect
thereto.
13. Section 1.8(a) of the Asset Purchase Agreement is amended by deleting
the first sentence and substituting the following in lieu thereof and by
deleting the entirety of such Section after the fifth sentence:
(a) Anything contained in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an agreement or an
attempted agreement to transfer, sublease or assign any contract, license,
lease, commitment, purchase order, sales order or other agreement or any
claim, right, benefit, license, permit or authorization arising thereunder
or resulting therefrom if a transfer, sublease or assignment or an
attempted transfer, sublease or assignment thereof, without the consent of
any
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other party thereto, would be ineffective, would constitute a breach
thereof, would violate any confidentiality obligations with respect
thereto, or would in any way affect the rights of the Purchaser thereunder.
14. Section 1.8(c) of the Asset Purchase Agreement is amended by changing
it to Section 1.8(h).
15. Sections 1.8(b) of the Asset Purchase Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
(b) After the Closing, Parent, Purchaser, the Company and NGC shall
continue to use their reasonable best efforts to (i) cooperate to attempt
to obtain any required consents or approvals to transfer of the Deferred
Assets (the "Consents") as soon as possible, and (ii) to transfer to Parent
or Purchaser pursuant to reasonable and lawful arrangements the benefits
and liabilities with respect to the Deferred Assets effective as of the
Closing. After the Closing, such efforts shall include, without
limitation, the enforcement for the benefit of the Purchaser (at
Purchaser's cost) of any and all rights of NGC, the Company and their
subsidiaries against third parties to any contract or agreement and the
transfer or sale of such Deferred Asset to any person or entity designated
by the Purchaser (and the net proceeds from any such transfer or sale shall
be for Purchaser's account).
(c) Without limiting the generality of paragraph (b) above, with
respect to any Deferred Assets for which Consents have not been obtained
prior to the Closing, after the Closing,
(i) the Company shall cause its subsidiaries that are operators,
managers, engineers or other service providers with respect to any
such Deferred Assets (collectively, the "Operators") to continue to
operate, manage, or provide engineering or other services, as
applicable, pursuant to the terms of the applicable operating,
management, engineering or other service agreements, if any
(collectively, "Operating Agreements") and to provide Purchaser with
copies of all material correspondence received by the Operators in
connection with such Operating Agreements, and
(ii) with respect to any other written contracts and agreements
to which the Company or any of its subsidiaries is a party
(collectively, the "Developers") and that relate to the development of
any Deferred Asset (collectively, the "Development Agreements"), the
Company shall cause the Developers to continue to provide services and
performance pursuant to the terms of the Development Agreements and to
provide Purchaser with copies of all material
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correspondence received by the Developers in connection with such
Development Agreements;
provided that, because such subsidiaries will be performing services with
respect to such Deferred Assets for the benefit of Purchaser pending
receipt of Consents, Purchaser shall direct the Operators or Developers as
to all aspects of their performance and shall, upon request by any Operator
or Developer, provide written instructions regarding such performance as a
condition to such Operator's or Developer's taking any action (including,
without limitation, granting or agreeing to any consents or waivers
thereunder), and provided further that, notwithstanding anything contained
herein to the contrary, if any of the Developers is required to make any
significant expenditure pursuant to the terms of any Development Agreement
and reasonable prior notice thereof is given to Parent, Parent shall
advance to the Company or such affiliate the funds necessary to make such
expenditure.
(d) If, between the Closing and the date upon which any and all
Consents to the transfer of the Elsta project, the Kingston project, the
Xxxxxxxxx project and the other Deferred Assets have been obtained (such
period is referred to as the "Interim Period"), any of the Deferred Assets
is damaged, destroyed, or is subject to condemnation, eminent domain,
governmental appropriation or any similar proceeding or action
(collectively, "Loss Events"), the risk of such Loss Events shall be borne
entirely by Parent and Purchaser. In addition, Parent and Purchaser
acknowledge and agree that they are assuming the sole risk of any and all
other loss or diminution in value to the Deferred Assets for whatsoever
reason (collectively, "Other Events"), and neither Parent nor Purchaser
shall be entitled to, or shall seek, any recourse or remedy against NGC,
the Company or its affiliates with respect to Loss Events or Other Events,
including, without limitation, rescission or any reduction in, or return
of, the Purchase Price, and each of Parent and Purchaser agrees that it
shall not institute any action or proceeding seeking any such recourse or
remedy against NGC, the Company, its affiliates or any of their respective
officers, directors, shareholders, employees, representatives or agents.
(e) Without limiting the generality of Section 6.3 hereof, Parent
shall indemnify, defend and hold harmless each of NGC, the Company, and
their respective affiliates, and each of their respective officers,
directors, shareholders, employees, representatives and agents
(collectively, the "Indemnified Parties") from and against any and all
claims, actions, proceedings, suits, demands, losses, taxes, penalties,
fines, costs, damages and expenses, including, without limitation,
reasonable attorneys' fees and expenses and costs of
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investigation, of whatsoever nature or kind, whether based on tort,
contract, strict liability or otherwise (including, without limitation,
claims with respect to personal injury, property damage, or breach of
contract by any of the Operators or environmental matters) (collectively,
"Losses"), and regardless of by whom asserted (including Losses arising out
of claims asserted by third parties or by Parent, Purchaser or their
affiliates or by the employees, representatives or agents of Parent,
Purchaser, the Company or their respective affiliates) arising out of,
relating to, or in connection with (i) an Indemnified Party's performance
or nonperformance under the Operating Agreements or its operation or
ownership of the Elsta project or the Kingston Project or the ownership of
the Xxxxxxxxx project or any other Deferred Asset during the Interim
Period, (ii) an Indemnified Party's performance or nonperformance under the
Development Agreements, (iii) Loss Events or Other Events, or (iv) without
limiting NGC's obligations under Section 1.8(b), the failure to obtain any
consents, approvals and waivers necessary to transfer the International
Assets and Businesses, except, with respect to clauses(i)-(iii)above only,
for any Losses attributable to such Indemnified Party's willful misconduct
in the performance of services thereunder, as finally and judicially
determined. Parent shall reimburse the Indemnified Parties for all expenses
(including, without limitation, reasonable attorneys' fees and expenses) as
they are incurred in connection with the investigation of, preparation for
or defense of any pending or threatened claim or any action or proceeding
arising therefrom, prior to the determination hereunder of such Indemnified
Party's right to indemnification hereunder, whether or not such Indemnified
Party is a party and whether or not such claim, action or proceeding is
initiated or brought by or on behalf of Parent, Purchaser or their
affiliates.
(f) Upon receipt of all Consents with respect to any Deferred Asset,
NGC shall cause the Company to transfer such Deferred Asset (and the
liabilities related thereto) to Parent or Purchaser, without recourse
except as to encumbrances in each case created by, through or under NGC,
the Company or their affiliates from and after the Closing. Any such
transfer shall to the extent possible be effective as of the Closing, and
arrangements will be made to transfer the net cash flow between the
Deferred Assets, on the one hand, and the Company and the Subsidiaries
(excluding the International Assets), on the other hand, attributable to
projects so transferred for the period from the date of Closing through the
date of transfer, to the extent they were not theretofore transferred.
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(g) THE PROVISIONS OF THIS SECTION 1.8 AND SECTION 6.3 SHALL APPLY
NOTWITHSTANDING THE SOLE, JOINT OR CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE,
STRICT LIABILITY OR OTHER FAULT OF ANY INDEMNIFIED PARTY.
16. Section 3.4 of the Asset Purchase Agreement is amended by changing it
to Section 3.5.
17. The following provision is inserted in Article III of the Asset
Purchase Agreement:
Section 3.4 Merger. To NGC's knowledge, the Merger was consummated
without the amendment, modification or waiver of any representation,
warranty, condition, covenant or other term contained in the Merger
Agreement, which amendment, modification or waiver could reasonably be
expected to have a material adverse effect on the International Assets.
18. The first sentence of Section 6.2(a) of the Asset Purchase Agreement
is deleted in its entirety and the following is substituted in lieu thereof:
(a) For purposes of this Agreement, the term "International Employees"
means those employees of the Company and the Subsidiaries and those
consultants set forth in Schedule 6.2 of the Disclosure Schedule.
19. Section 6.3(b) of the Asset Purchase Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
(b) Parent shall, and Parent shall cause the Purchaser to, jointly and
severally indemnify, defend and hold NGC, the Company and their affiliates
harmless against and in respect of (i) claims asserted by third parties
with respect to the Assumed Liabilities, (ii) all credit support
obligations, guarantees and contribution obligations relating to the
International Assets, including but not limited to those listed on Schedule
6.3(b) of the Disclosure Schedule with respect to which the Company and its
Subsidiaries have not been fully released by the Closing to the reasonable
satisfaction of NGC and (iii) all costs and expenses (including expenses of
investigation, settlement, negotiation and attorneys' fees) incurred by the
Company, NGC and their affiliates in connection with any action, suit,
proceeding, demand, claim, investigation, assessment or judgment incident
to any of the matters indemnified against in this Section 6.3(b).
20. Section 6.12(g) of the Asset Purchase Agreement is amended by adding
the following new sentence at the end thereof:
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With respect to any Tax Return relating to Transfer Taxes that Parent is
responsible for pursuant to Section 12(c), but which under applicable law
the Company or any of its Subsidiaries (other than the International
Entities) is responsible for filing, the Company or such Subsidiary, as the
case may be, shall not file any such Tax Return without the prior written
consent of Parent, which consent shall not be unreasonably withheld.
21. Article VI of the Asset Purchase Agreement is amended by inserting the
following provision:
6.14 Documents; Closing Agreements. Subject to Section 1.8, NGC
shall cause Company to deliver to Parent (to the extent not previously
provided) (x) all documents in its possession or in the possession of its
subsidiaries related to the International Assets and International
Businesses as soon as practicable after the Closing, but in no event later
than 45 days after the Closing Date, and (y)the Peru Files no later than 14
days after the Closing. Without limiting the generality of the foregoing,
NGC shall cause the Company to deliver all documents in its possession or
in the possession of any of its subsidiaries that are necessary to allow
Parent or any of its subsidiaries to transfer to ELSTA B.V. & Co., C.V.
("Elsta") within 30 days following the "Substantial Completion Date" with
respect to the Elsta project all material project documentation, including,
without limitation, all warranties, specifications, construction drawings,
piping, instrument and electrical drawings, purchase orders, stress
calculations, etc., directly relating to the Elsta project and as listed in
Appendix H to AES Business Plan for the Elsta project dated June 30, 1997.
On or before the Closing Date, NGC shall execute and deliver (or cause to
be executed and delivered) that certain Consulting Agreement between Destec
Operating Company, Terneuzen Operating Company, et al., Parent and the
Company shall execute and deliver that certain Secondment Agreement dated
as of June 26, 1997, and Parent and Destec Operating Company shall execute
and deliver the Indemnification and Agreement dated as of June 26, 1997.
20. Section 7.1 of the Asset Purchase Agreement is deleted in its entirety
and the following is substituted in lieu thereof:
Section 7.1 Conditions to Purchaser's Obligation to Purchase the
International Assets. The obligation of Purchaser to purchase the
International Assets hereunder shall be subject to the satisfaction or
waiver by Purchaser at or prior to the Effective Time of the following: (a)
the representations and warranties of NGC and the Company set forth in this
Agreement shall be true and correct (except in the case
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of any representation and warranty made as of a specified date, which need
only be true as of such date) as of the Effective Time as if such
representations and warranties were made on such date except for such
representations and warranties the failure of which to be true and correct
would not have a material adverse effect on the transactions contemplated
by this Agreement; (b) no representation, warranty, condition, covenant or
other term in the Merger Agreement relating to the International Assets
shall be amended, modified or waived, which amendment, modification or
waiver could reasonably be expected to have a material adverse effect on
the International Assets taken as a whole, without the prior written
consent of Parent or Purchaser; (c) the Merger shall have been consummated,
without waiver of any of the conditions contained in the Merger Agreement,
which waiver could reasonably be expected to have a material adverse effect
on the International Assets taken as a whole, without the written consent
of Parent or Purchaser.
22. Section 7.2 of the Asset Purchase Agreement is deleted in its entirety
and the following is substituted in lieu thereof:
Section 7.2 Conditions to NGC's Obligation to Sell the International
Assets. The obligation of NGC to sell the International Assets hereunder
shall be subject to the satisfaction or waiver by NGC at or prior to the
Effective Time of the following: (a) the Merger shall have been
consummated, (b) the representations and warranties of the Parent and
Purchaser set forth in this Agreement shall be true and correct (except in
the case of any representation and warranty made as of a specified date,
which need only be true as of such date) as of the Effective Time as if
such representations and warranties were made on such date except for such
representations and warranties the failure of which to be true and correct
would not have a material adverse effect on the transactions contemplated
by this Agreement and (c) Purchaser shall have complied with Section 1.6(b)
hereof.
23. The first paragraph of Section 8.1 of the Asset Purchase Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
Section 8.1 Termination. Notwithstanding anything herein to the
contrary, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Effective
Time:
24. Full Force and Effect. As amended by this Amendment, the Asset
Purchase Agreement shall remain in full force and effect.
-13-
25. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original but all of which shall
be considered one and the same instrument.
26. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of law.
-14-
IN WITNESS WHEREOF, Parent and NGC have caused this Amendment to be signed
by their respective officers thereunto duly authorized as of the date first
written above.
NGC CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
and General Counsel
THE AES CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
-15-
Schedule 1.1 of Disclosure Schedule
-----------------------------------
(Part I-A)
I-A. International Entities -- Shares to be Conveyed
---- -----------------------------------------------
Entity to be Transferred Transferor Transferee
------------------------ ---------- ----------
A. Elsta-related
Terneuzen Cogen B.V. European Power Holdings AES Global Power
B.V. ("EPH") Holdings B.V. ("Global
Power")
Terneuzen Operating EPH Global Power
Company B.V.
Elsta B.V. EPH (50% interest) Global Power
X. Xxxxxxxxx-related
Destec Australian Energy Piedmont (L.P.) Inc. AES Piedmont, Inc. ("AES
Finance Pty Ltd. Piedmont")
European Power Holdings Destec Energy, Inc. AES Piedmont
B.V. ("DEI") (80%); Destec
Australia Investments, Inc.
(20%)
C. Kingston-related
Destec Energy DEI Global Power
Canada, Inc.
Destec Constructors, Inc. DEI The AES Corporation
Entity to be Transferred Transferor Transferee
------------------------ ---------- ----------
D. Los Mina-related
Destec Caribbean DEI AES Los Mina Holdings,
Holdings, Inc. Inc. ("AES Los Mina")
Destec Caribbean DEI AES Los Mina
Services, Inc.
Destec Cayman Islands DEI AES Los Mina
Holdings, Ltd.
Dominican Power DEI AES Los Mina
Metering Ltd.
E. Indian Queens-related
UK Energy Holdings DEI AES UK Holdings, Ltd.
Limited
F. Other
Demex, Inc. DEI AES
Demsa, Inc. DEI AES
Destec Colombia Ltd. DEI AES
Destec Energy (Asia) Pte. DEI AES
Ltd.
Destec Energy DEI AES
Mexico, Inc.
Destec Energy of DEI AES
Columbia, Inc.
2
Entity to be Transferred Transferor Transferee
------------------------ ---------- ----------
Destec Engineering Destec Holdings, Inc. Destec Engineering, Inc.
Kingston, Inc. (Cayman Islands company)
[TO BE ACQUIRED THROUGH A
MERGER TO OCCUR AS SOON
AS PRACTICABLE AFTER THE
CLOSING DATE.]
Destec Engineering, Inc. Destec Holdings, Inc. AES
(Cayman Islands company)
Destec Europe, S.A. DEI AES
Destec FSC Corporation Destec Engineering, Inc. AES
(Texas corporation)
Destec International DEI AES
Holdings, Inc.
Destec Latin America, Inc. DEI AES
Destec Miskolc, Inc. DEI AES
Destec Operadora S.A. DEI AES
Destec Santander Ltd. DEI AES
Destec Taiwan, Inc. DEI AES
Electrica Norperu S.R. DEI AES
Ltda.
Hispaniola Power DEI AES
Ventures, Ltd.
3
Schedule 1.1 of Disclosure Schedule
-----------------------------------
(Part I-B)
I-B. International Entities -- Companies to be Transferred (Directly and
---- -------------------------------------------------------------------
Indirectly)
-----------
Current Destec Ownership
Entity Jurisdiction Interest
------ ------------ ------------------------
A. Elsta-related
TERNEUZEN COGEN B.V. Amsterdam, The 100% owned by EPH (see
Netherlands I.A. above)
TERNEUZEN OPERATING Amsterdam, The 100% owned by EPH
COMPANY X.X. Xxxxxxxxxxx
XXXXX X.X. Xxxxxxxxxxx limited 50% owned by EPH
liability company
Elsta B.V. & Co. C.V. Netherlands limited 49.5% limited partner
liability company interest held by Terneuzen
Cogen B.V., & 1% general
partner interest held by
Elsta B.V.
B. Hazelwood-related
DESTEC AUSTRALIAN Victoria, Australia 100% owned by Piedmont
ENERGY FINANCE PTY LTD. (L.P.) Inc.
("DAEFPL")
Hazelwood Finance Victoria, Australia 12.55% limited partnership
Limited Partnership interest held by DAEFPL
("HFLP")
Morwell Financial Victoria, Australia 100% owned by HFLP
Services Pty Ltd.
Gippsland Ventures Pty. Victoria, Australia 100% owned by HFLP
Ltd.
4
Jurisdiction Current Destec Ownership
Entity ------------ Interest
------ ------------------------
EUROPEAN POWER Amsterdam, The 80% owned by DEI & 20%
HOLDINGS B.V. Netherlands owned by Destec
Australian
Investments, Inc.
Australian Power Amsterdam, The 100% owned by EPH
Holdings B.V. ("APH") Netherlands
Australian Power Partners Amsterdam, The 0.5% general partner
B.V. ("APP") Netherlands interest held by APH &
99.5% limited partner
interest held by EPH
Hazelwood Power Victoria, Australia 20% partnership interest
Partnership ("HPP") held by APP
Hazelwood Power Victoria, Australia 100% owned by HPP
Corporation Limited
C. Kingston-related
DESTEC ENERGY Ontario, Canada 100% owned by DEI
CANADA, INC. ("DEC")
DESTEC CONSTRUCTORS, Delaware 100% owned by DEI
INC.
Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxx 100% owned by DEC
Lights, Inc. ("KNLI")
Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxx 100% owned by DEC
Partners, Inc. ("KPPI")
Kingston Cogen Limited Ontario limited partnership 37% general partner
Partnership interest and 0.5% limited
partner interest held by
KNLI & 12.5% general
partner interest held by
KPPI
[BOLD=International Entities of which the stock is to be conveyed -- See
Schedule 1.1, Part I-A]
5
Jurisdiction Current Destec Ownership
Entity ------------ Interest
------ ------------------------
Destec Operating Ontario, Canada 100% owned by DEC
Canada, Inc.
D. Los Mina-related
DESTEC CARIBBEAN Delaware 100% owned by DEI
HOLDINGS, INC.
("DCHI")
DESTEC CARIBBEAN Delaware 100% owned by DEI
SERVICES, INC. ("DCSI")
DESTEC CAYMAN ISLANDS Cayman Islands 100% owned by DEI
HOLDINGS, LTD.
("DCIHL")
DOMINICAN POWER Cayman Islands 100% owned by DEI
METERING LTD.
D.O.C. Dominicana, S.A. Dominican Republic 99.4% owned by DCHI
Dominican Power Cayman Islands 99% owned by DCIHL
Partners LDC
E. Indian Queens-related
UK ENERGY HOLDINGS England 100% owned by DEI
LIMITED ("UKEHL")
Indian Queens Power England 100% owned by UKEHL
Limited
UK Asset Management England 100% owned by UKEHL
Services Ltd.
UK Power Finance Ltd. England 100% owned by UKEHL
[BOLD=International Entities of which the stock is to be conveyed -- See
Schedule 1.1, Part I-A]
6
Current Destec Ownership
Entity Jurisdiction Interest
------ ------------ ------------------------
F. Other
Chiahui Power Corp. Taiwan 30% owned by Destec
Taiwan, Inc.
DEMEX, INC. Delaware 100% owned by DEI
DEMSA, INC. Delaware 100% owned by DEI
DESTEC COLOMBIA LTD. Cayman Islands 100% owned by DEI
Destec Energia de Mexico Mexico 50% owned by Demsa, Inc.
S.A. de CV & 50% owned by
Demex, Inc.
DESTEC ENERGY (ASIA) Singapore 100% owned by DEI
PTE. LTD.
DESTEC ENERGY Delaware 100% owned by DEI
MEXICO, INC.
DESTEC ENERGY OF Delaware 100% owned by DEI
COLUMBIA, INC.
DESTEC ENGINEERING, INC. Cayman Islands 100% owned by Destec
Holdings, Inc.
DESTEC ENGINEERING Texas 100% owned by Destec
KINGSTON, INC. Holdings, Inc.
DESTEC EUROPE, S.A. France 100% owned by DEI
DESTEC FSC CORPORATION Barbados 100% owned by Destec
Engineering, Inc.
(Texas corporation)
DESTEC INTERNATIONAL Delaware 100% owned by DEI
HOLDINGS, INC.
Destec Investment Ltd. Cayman Islands 100% owned by Destec
Cayman Islands Holdings
Ltd.
[BOLD=International Entities of which the stock is to be conveyed -- See
Schedule 1.1, Part I-A]
7
Current Destec Ownership
Entity Jurisdiction Interest
------ ------------ ------------------------
DESTEC LATIN Delaware 100% owned by DEI
AMERICA, INC.
DESTEC MISKOLC, INC. Delaware 100% owned by DEI
DESTEC OPERADORA S.A. Peru 99.9% owned by DEI;
0.1% owned nominally by
local attorneys
DESTEC SANTANDER LTD. Cayman Islands 100% owned by DEI
DESTEC TAIWAN, INC. Delaware 100% owned by DEI
Destec Termoriente Cayman Islands 1% owned by Destec
L.D.C. Columbia Ltd. & 99%
owned by Destec
Santander Ltd.
DOC Guatemala, S.A. Guatemala 99.8% owned by DCHI &
0.2% owned by DCSI
ELECTRICA NORPERU S.R. Peru 99% owned by DEI; 1%
LTDA. owned nominally by local
attorneys
HISPANIOLA POWER Cayman Islands 100% owned by DEI
VENTURES, LTD.
[BOLD=International Entities of which the stock is to be conveyed -- See
Schedule 1.1, Part I-A]
8
Schedule 1.1 of Disclosure Schedule
-----------------------------------
(Part II)
II. Projects and Projects Under Development Outside of the United States.
--------------------------------------------------------------------
A. All right, title, and interest of Destec Energy, Inc. and its
Subsidiaries in and to the following projects and projects in
development outside of the United States:
1. Advance Energy 350 MW CCGT (Australia)
2. Cebu 260 MW Coal (Philippines)
3. Chiahui 450-670 MW CCGT (Taiwan)
4. Austa Repowering 350 MW CCGT (Australia)
5. Kingstream 350 MW CCGT (Australia)
6. Gujarat Power 1000 MW Coal (India)
7. Gujarat Power 600 MW CCGT (India)
8. ESTA Repowering 360 MW CCGT (Australia)
9. Balmoral 170 MW CCGT (Australia)
10. Mineralogy/Austeel 200-600 MW CCGT (Australia)
11. Dow Western Australia 200-600 MW CCGT (Australia)
12. HEQU 2 x 300 MW Coal (China)
13. Xxxx Xxxx 2 x 125 MW Coal (China)
14. Zuen Hua 2 x 50 MW Coal (China)
15. Wuan 2 x 50 MW Coal (China)
16. Chashu 2 x 300 MW Coal (China)
17. Adapazari #1322 740 MW CCGT (Turkey)
18. Rades 350-500 MW CCGT (Tunisia)
19. Dow Stade 675 MW CCGT (Germany)
20. Abidjan 300-450 MW CCGT (Cote d'Ivorie)
21. Office Cherifien de 150 XX Xxxxx Coal (Morocco)
Phosphates
22. Barqa #1344 350 MW CCGT (Oman)
23. General (South Africa)
24. PBB Cogen (Dow-YPF-Solvay) 160 MW (Argentina)
25. Dow Aratu (Candeias, Bahia) 110 MW (Brazil)
26. Merida III 440 MW (Mexico)
27. Monterrey 300 MW (Mexico)
28. Cuiba 450 MW (Brazil)
29. Macae Plant 150 MW (Brazil)
30. Termosantander 100 MW (Colombia)
31. Compressed Air Energy Storage (England)
32. Tangshan Harbor (China)
33. BIN County, Shanxi (China)
9
34. PUQI (China)
35. WUHUAN (China)
36. New Saga Power Corporation (Phillippines)
37. Any other projects and projects under development outside of the
United States in which Destec Energy, Inc. or any of its
Subsidiaries has any right, title, or interest (other than Excluded
Projects).
10
B. All right, title, and interest of Destec Energy, Inc. and its Subsidiaries
in and to the following contracts and other agreements related to projects
under development outside of the United States:
1. ASIA
a. Office Lease, dated 11/23/95, between Everbilt Developers Pte. Ltd. and
Destec Energy (Asia) Pte. Ltd. (for office space at 00-00 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxxxx).
b. Loan Agreement, dated 5/13/96, between Destec Taiwan, Inc. and Chiahui
Power Corp.
c. Promissory Note, dated 6/5/96, in the amount of $664,084 by Chiahui
Power Corp. payable to Destec Taiwan, Inc.
d. Joint Development Agreement, dated 2/16/96, between Destec Taiwan, Inc.
and Sunford Management Consultants, Inc.
e. Memorandum of Understanding ("MOU"), dated 3/7/96, among Destec Energy
(Asia) Pte. Ltd., Luvimin Cebu Mining Corp., and VALCO Piping Service,
Inc.
f. MOU, dated 3/7/96, between Destec Energy (Asia) Pte. Ltd. and Luvimin
Cebu Mining Corp.
g. Local Area Network (LAN) Support Services Agreement, dated 1/1/96,
between Destec Energy (Asia) Pte. Ltd. and Omnes Ltd.
h. Development Services Agreement, dated 4/1/95, between Destec Energy
(Asia) Pte. Ltd. and Destec Energy, Inc.
i. MOU, dated 4/15/96, among Austeel Pty. Ltd., Asia Pacific Power
Pty. Ltd., and Destec Energy (Asia) Pte. Ltd.
j. MOU, dated 11/21/96, between Destec Energy (Asia) Pte. Ltd. and
Asia Pacific Power Pty. Ltd.
k. Independent Contractor Agreement, dated 5/1/95, between Vimokas
Consultants and Engineers Prt. Ltd. and Destec Energy (Asia) Pte. Ltd.
l. Independent Contractor Agreement, dated 6/1/95, between X. Xxxxx,
Consultant, and Destec Energy (Asia) Pte. Ltd.
11
m. Independent Contractor Agreement, dated 5/1/96, between Shazil
International Consulting Engineers and Destec Energy (Asia) Pte. Ltd.
n. Consulting Agreement, dated 9/1/96, between Nortech Services Pty. Ltd.
and Destec Energy (Asia) Pte. Ltd.
o. Letter of Intent ("LOI"), dated 6/16/95 between Dirati Inc. and Destec
Energy (Asia) Pte. Ltd. regarding power project in Maharashtra, India.
p. Lease Agreement, dated 3/17/95, between Servcorp Services Offices
Private Limited and Destec Energy (Asia) Pte. Ltd. for #3, 00 Xxxxx
Xxxxx, 00 Xxxxxxx Xxxxx, Xxxxxxxxx 0000.
q. Lease Agreement, dated 6/2/95, between Pontiac Land Private Ltd. and
Destec Energy (Asia) Pte. Ltd. (for #00-00, 00 Xxxxxx Xxxx, Xxxxxxxxx
1024).
r. Tenancy Agreement, dated 2/10/95, between MDM Shindrayani and Destec
Energy (Asia) Pte. Ltd. (for 00 Xxxxxxxx Xxxx #00-00, Xxxxxxxx Xxxxxxx,
Xxxxxxxxx).
s. Tenancy Agreement, dated 11/21/95, between MP-Bilt Pte. Ltd. and Destec
Energy (Asia) Pte. Ltd. (for #00-00 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxxxxxx).
t. MOU, dated 3/22/95, between Destec Energy (Asia) Pte. Ltd. and Sunford
Management Consulting Co.
u. Joint Development Agreement, dated as of 12/94, between Destec Energy
(Asia) Pte. Ltd. and SAAMIA Development Company, Inc.
v. MOU, dated 11/96, between Destec Energy, Inc. and Shanxi Planning
Commission (HEQU Project).
w. MOU, dated 10/96, between Destec Energy, Inc. and Hebei Provincial
Government (WUAN Project).
x. MOU, dated 11/1/96, between Destec Energy, Inc. and Hebei Provincial
Government (ZUENHUUA Project).
y. MOU, dated 11/96, between Destec Energy, Inc. and City of Lianyuan
(LIANYUAN Project).
12
z. MOU, dated 11/96, between Destec Energy, Inc. and Anhui Provincial
Government (CHAOHU Project).
aa. MOU, dated 12/96, between Destec Energy, Inc. and Shanxi Provincial
Government (LIULIN Project).
bb. Confidentiality Agreement between Fellows Engineers and Destec Energy,
Inc. regarding the Wellgrow Industrial Estate project in Bangkok,
Thailand.
cc. Confidentiality Agreement between Fellows Engineers and Destec Energy,
Inc. regarding the Natural Gas Cogeneration Plant in Bangkok, Thailand.
dd. Confidentiality Agreement between State Investment and Destec Energy,
Inc. regarding the State Investment Trust project in Mindanao,
Phillippines.
2. LATIN AMERICA
a. LOI, dated 12/9/96, between Total Power International S.A. and Destec
Energy, Inc. (DEI assigned its interest therein to Destec Latin America,
Inc. by letter dated 3/6/97.)
b. Joint Development Agreement, dated 3/7/96, among Progelec, Essa, and
Destec Energy of Colombia, Inc.
3. OTHER
a. Pakistan
i. Independent Contractor Agreement, dated effective 5/1/96, between
Shazil International Consulting Engineers and Destec Energy (Asia)
Pte. Ltd.
b. South Africa
i. Independent Contractor Agreement, dated effective 3/1/96, between HSA
and Destec Europe S.A. (as amended)
c. Oman
i. MOU, dated effective 11/1/95, among Destec Energy, Inc., Xxxx Xxxxx
Engineering, Sasakura, and Sumitomo.
13
d. Sulcis
i. Indemnification Agreement, dated 7/26/96, among Destec Energy, Inc.,
Ansaldo Energia S.p.A., and Sondel.
ii. MOU, dated 12/14/95, among Destec Energy, Inc., Ansaldo Energia
S.p.A., Sondel, Techint, and Montan.
iii. Contract of Temporary Association of Companies, dated 12/15/95,
between Destec Energy, Inc. and Ansaldo.
iv. Amended and Restated MOU, dated 9/17/95 among Destec Energy, Inc.,
Ansaldo Energia S.p.A., and Constad States Energy Co.
v. Concession Contract, dated 9/18/96, between the Coordination
Committee and Ansaldo Energia S.p.A., as group leader and proxy
holder for the Temporary Association of Companies.
vi. Agreement (undated) regarding indemnification of Destec Energy, Inc.
among Destec Energy, Ansaldo Energia S.p.A., Sondel, Techint, and
Montan.
e. Arco project (The Netherlands)
i. MOU, dated 11/15/95, between Destec Energy, Inc. and B.V. Energie-
Zuid Nederland EZN.
f. APP Australia
i. MOU between Destec Energy (Asia) Pte. Ltd. and Asia Pacific Power Pty
Ltd.
g. Consulting Agreement -- United Kingdom
i. Independent Contractor Agreement, dated 1/1/97, between CSE Wendover
Ltd. and Destec Europe S.A.
h. Tunisia
i. MOU dated 6/12/96, among Destec Energy, Inc., SNC Lavalin Inc., Elyo
S.A., and GE International, Inc.
14
x. Xxxx d'Ivoire
i. MOU, dated 7/22/96, among Destec Energy, Inc., SNC Lavalin Inc., Elyo
S.A., and GE International, Inc.
ii. Termination Agreement, dated 4/22/97, among Destec Energy, Inc., SNC
Lavalin Inc., Elyo S.A., and GE International, Inc.
j. Turkey
i. Asset Purchase Agreement, dated 7/31/95 between Destec Energy, Inc.
and Trinity Partners (as amended).
ii. Amended and Restated MOU, dated 9/11/95, among Destec Energy, Inc.,
Mobil Power Inc., and Trinity Partners.
iii. Asset Purchase Agreement, dated 1/2/96, among Destec Energy, Inc.,
Mobil Power Inc., and Trinity Partners (as amended).
iv. MOU, dated 7/1/96, among Destec Energy, Inc., Mobil Power Inc.,
Trinity Partners, and Genel Enerji A.S.
v. Asset Purchase Agreement, dated 7/30/96, among Destec Energy, Inc.,
Mobil Power Inc., and Trinity Partners (as amended).
vi. Indemnification Agreement, dated February 27, 1997, between Destec
Energy, Inc. and Mobil Power Inc.
vii. Agreement, dated 2/27/97, among Destec Energy, Inc., Mobil Power
Inc., GE International, Inc., and Genel Enerji A.S.
viii. Letter Agreement, dated 7/11/96, between Mobil Power Inc. and Destec
Energy, Inc. regarding terms of Letter of Credit/Bid Bond.
ix. MOU, dated 5/11/95, between Destec Energy, Inc. and Trinity Partners.
x. Xxxxx, Germany
i. MOU, dated 1/29/97, between Destec Energy, Inc. and Dow Deutschland
Inc.
15
l. United Kingdom
i. Letter Agreement for Cooperation on United Kingdom Compressed Air
Energy Storage Projects, dated 11/3/95, between Destec Energy, Inc.
and Westinghouse Electric Corp.
m. Italy
i. MOU, dated 11/11/94, between Destec Energy, Inc. and WTI
International Energy, Inc. detailing terms of joint bid to
acquire controlling stake and minority stake in Ilva Servizi
Energie SRI ("ISE") and for the joint management of ISE projects
at the Tarantio, Piombino, and Terni steel xxxxx.
n. Destec
i. Employee Services Agreement dated 2/15/94, between Destec Europe
S.A. and Destec Energy, Inc.
ii. Development Services Agreement dated 2/15/94, between Destec
Europe S.A. and Destec Energy, Inc.
o. Any other written contracts or agreements in which Destec Energy,
Inc. or any of its Subsidiaries has right, title, or interest
relating to projects and projects in development outside of the
United States (other than Excluded Projects and to the Tenancy
Agreement dated 12/26/95 between Tobyn Pte Ltd. and Destec Energy
(Asia) Pte Ltd. (for 00 Xxxxxx Xxxx #00-00, Xxxxxxx Xxxxx,
Xxxxxxxxx)).
16
Schedule 1.1 of Disclosure Schedule
-----------------------------------
(Part III)
III. Contracts and Other Agreements Relating to the Projects
-------------------------------------------------------
A. All right, title, and interest of the International Entities in and to
all contracts and other agreements listed in the following Sections of
the Destec Energy, Inc. Data Room Master Index: (i) Section V.B.1.c
Indian Queens; (ii) Section V.B.1.d. Los Mina; (iii) Section V.B.2.i.
Elsta; (iv) Section V.B.2.x. Xxxxxxxxx; (v) Section V.B.2.n. Kingston;
and any other written contracts and agreements relating to any of the
foregoing projects entered into by any of the International Entities
prior to the Closing Date.
B. All right, title, and interest of Destec Energy, Inc. and its
Subsidiaries (other than the International Entitities) in and to the
following contracts and agreements:
1. Xxxxxxxxx:
---------
1.1 Guarantee Agreement, dated 8/2/96, among Destec Energy,
Inc., National Power Australia Investments Limited,
Xxxxxxxxx Pacific Pty Ltd. CV and CISL (Xxxxxxxxx) Pty Ltd.
1.2 Share Sale Agreement, dated 8/4/96, among State Electricity
Commission of Victoria, Destec Energy, Inc., et al.
1.3 Deed of Covenant per clause 5.4(f) of Share Sale Agreement,
dated 9/13/96, between Destec Energy, Inc. and the State of
Victoria
1.4 Guarantee & Indemnity, dated 9/13/96, among Destec Energy,
Inc., Xxxxxxxxx Pacific Pty Ltd., et al.
1.5 Loan Agreement, dated 6/25/97, between Destec Energy, Inc.
and European Power Holdings, B.V. [TO BE ASSIGNED TO AES
PIEDMONT II, INC.]
1.6 Agreement Date Advanced Note, dated 6/25/97, by European
Power Holdings, B.V. to Destec Energy, Inc. (as of 6/30/97
outstanding principal (acquisition): A$184,300,000;
outstanding principal (capex and capitalized interest):
A$20,486,841; accrued interest: A$34,433,000) [TO BE
ASSIGNED TO AES PIEDMONT II, INC.]
17
1.7 Agreement Date Unadvanced Note, dated 6/25/97, by European
Power Holdings, B.V. to Destec Energy, Inc. [TO BE ASSIGNED
TO AES PIEDMONT II, INC.]
1.8 Any other notes, debt, dividend receivables, or any other
receivables from any of the International Entities relating
to the Xxxxxxxxx Project payable to Destec or any other
affiliate (other than the International Entities)
1.9 Any escrow agreements, bank accounts, cash, or other
security or assets pledged in connection with any of the
International Entities relating to the Xxxxxxxxx project
1.10 Any other contracts and agreements in which Destec Energy,
Inc. or any of its Subsidiaries has rights, title, or
interest relating to the Xxxxxxxxx Project
2. Indian Queens:
-------------
2.1 Equity Contribution Agreement, dated 8/27/96, among Indian
Queens Power Limited, UK Energy Holdings Limited, Destec
Energy, Inc. and Barclays Bank PLC
2.2 Intercreditor Agreement, dated 8/27/96, among Indian Queens
Power Limited, UK Energy Holdings Limited, Destec Energy,
Inc. and Barclays Bank PLC and BLAF (No. 3) Limited
2.3 Engineering and Services Agreement, dated 6/30/94, between
Indian Queens Power Limited and Destec Engineering, Inc.
[TO BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
2.4 Funding Agreement dated 8/7/96 between Destec Energy, Inc.
and UK Energy Holdings Limited (as of 6/30/97 -- outstanding
principal: US$15,683,607; accrued interest: US$2,909,405)
[TO BE ASSIGNED TO AES GLOBAL POWER HOLDINGS B.V.]
2.5 Any other notes, debt, dividend receivables, or any other
receivables from any of the International Entities relating
to the Indian Queens project payable to Destec or any other
affiliate (other than the International Entities)
2.6 Any escrow agreements, bank accounts, cash, or other
security or assets pledged in connection with any of the
International Entities
18
relating to the Indian Queens project, including without
limitation any cash or other security pledged to
collateralize the Destec-provided LOC or the related equity
contribution obligation relating to Indian Queens
2.7 Any other contracts and agreements in which Destec Energy,
Inc. or any of its Subsidiaries has rights, title, or
interest relating to the Indian Queens project
3. Kingston:
--------
3.1 Letter Agreement, dated 10/13/95, among Kingston CoGen
Limited Partnership, The Bank of Nova Scotia, Credit Suisse
Canada and Destec Energy, Inc.
3.2 Letter Agreement, dated 3/1/96, between Kingston CoGen
Limited Partnership and Destec Energy, Inc.
3.3 Equity Guaranty, dated 6/30/95, executed by Destec Energy,
Inc. for the benefit of The Bank of Nova Scotia, as
Administrative Agent (re: Equity Contribution Agreement
executed by Kingston Northern Lights, Inc.)
3.4 Amended & Restated Equity Guaranty, dated 12/29/95, executed
by Destec Energy, Inc. for the benefit of The Bank of Nova
Scotia, as Administrative Agent (re: Amended and Restated
Equity Contribution Agreement executed by Kingston Northern
Lights, Inc.)
3.5 EPC Guaranty, dated 6/30/95, between Destec Energy, Inc. and
The Bank of Nova Scotia
3.6 Contingent Equity Reimbursement Guaranty, dated 2/29/95,
between Destec Energy, Inc. and Pacific Kingston Energy,
Inc.
3.7 Engineering and Procurement Agreement dated March 28, 1995
between Kingston CoGen Limited Partnership and Destec
Engineering, Inc., as amended by Amendment No. 1 to
Engineering and Procurement Agreement (June 26, 1995) and
Amendment No. 2 to Engineering and Procurement Agreement
(June 29, 1995), and as amended by various Change Orders
[TO BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
19
3.8 Consent and Agreement dated June 30, 1995 executed by Destec
Engineering, Inc. and Kingston CoGen Limited Partnership in
favor of The Bank of Nova Scotia as Administrative Agent
[TO BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.9 Letter dated June 29, 1995 from General Electric Company to
The Bank of Nova Scotia as Administrative Agent, accepted
and agreed to by Destec Engineering, Inc. [TO BE ASSIGNED
TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.10 Letter Agreement dated January 23, 1997 from Destec
Engineering, Inc. and Destec Constructors, Inc., and
accepted and agreed to by Kingston CoGen Limited
Partnership on January 31, 1997 (re: Substantial
Completion) [TO BE ASSIGNED TO DESTEC ENGINEERING, INC.
(CAYMAN ISLANDS COMPANY)]
3.11 Engineering, Procurement and Construction Agreement dated
May 5, 1995 between Destec Engineering, Inc. and Destec
Constructors, Inc., on the one hand, and X.X. Xxxxx
Construction Company and Xxxxx Power Company, Ltd., on the
other hand, as amended from time to time [TO BE ASSIGNED TO
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.12 Major Subcontractor Consent and Agreement dated June 30,
1995, executed by X.X. Xxxxx Construction Company, Xxxxx
Power Company, Ltd., Destec Constructors, Inc., Destec
Engineering, Inc. and Kingston CoGen Limited Partnership,
in favor of The Bank of Nova Scotia as Administrative Agent
[TO BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.13 Letter of Credit in favor of Destec Engineering, Inc.
issued August 21, 1995 by Royal Bank of Canada in the
original amount of $59,552.00 (ICMS Reference LCD00001) [TO
BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.14 Letter of Credit in favor of Destec Engineering, Inc.
issued September 26, 1995 by Boatmans in the original
amount of $2,938.00 (ICMS Reference LCD00002) [TO BE
ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.15 Letter of Credit in favor of Destec Engineering, Inc.
issued September 20, 1995 by Core States Bank in the
original amount of $1,373.80
20
(ICMS Reference LCD00004) [TO
BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.16 Letter of Credit in favor of Destec Engineering, Inc.
issued October 23, 1995 by Bank One in the original amount
of $9,600.00 (ICMS Reference LCD00005) [TO BE ASSIGNED TO
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.17 Letter of Credit in favor of Destec Engineering, Inc.
issued September 22, 1995 by Chubb Insurance Company of
Canada in the original amount of $69,742.00 (ICMS Reference
LCD00006) [TO BE ASSIGNED TO DESTEC ENGINEERING, INC.
(CAYMAN ISLANDS COMPANY)]
3.18 Letter of Credit in favor of Destec Engineering, Inc.
issued November 22, 1995 by PNC Bank in the original amount
of $6,801.10 (ICMS Reference LCD00007) [TO BE ASSIGNED TO
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.19 Letter of Credit in favor of Destec Engineering, Inc.
issued November 22, 1995 by PNC Bank in the original amount
of $28,336.80 (ICMS Reference LCD00008) [TO BE ASSIGNED TO
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.20 Letter of Credit in favor of Destec Engineering, Inc.
issued December 24, 1996 by BNS in the original amount of
$12,565.90 (ICMS Reference LCD00009) [TO BE ASSIGNED TO
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.21 Letter of Credit in favor of Destec Engineering, Inc.
issued December 7, 1995 by BNP Canada in the original
amount of $2,470.40 (ICMS Reference LCD00010) [TO BE
ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.22 Letter of Credit in favor of Destec Engineering, Inc.
issued November 30, 1995 by Northern Indemnity in the
original amount of $140,966.20 (ICMS Reference LCD00011)
[TO BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.23 Letter of Credit in favor of Destec Engineering, Inc.
issued April 10, 1996 by Bank of Nova Scotia in the
original amount of $87,926.97 (ICMS Reference LCD00012) [TO
BE ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
21
3.24 Letter of Credit in favor of Destec Engineering, Inc.
issued November 9, 1995 by Whitney in the original amount
of $15,336.00 (ICMS Reference LCD00013) [TO BE ASSIGNED TO
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.25 Letter of Credit in favor of Destec Engineering, Inc.
issued November 9, 1995 by Commerzbank in the original
amount of $104,427.00 (ICMS Reference LCD00014) [TO BE
ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.26 Letter of Credit in favor of Destec Engineering, Inc.
issued July 19, 1996 by Toronto Dominion in the original
amount of $24,735.00 (ICMS Reference LCD00016) [TO BE
ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
3.27 Letter of Credit in favor of Destec Engineering, Inc.
issued October 8, 1996 by Citibank in the original amount
of $738,153.00 (ICMS Reference LCD00017) [TO BE ASSIGNED TO
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.28 Purchase Agreement, dated 12/29/95, among Destec Energy
Inc., Kingston Power Partners, Inc., Pacific Kingston, Inc.
and Pacific Generation Company
3.29 First Amended and Restated Side Agreement #2, dated
2/23/95, among PanCanadian Petroleum Limited, Destec
Energy, Inc., Kingston Northern Lights, Inc., Kingston
Power Partners, Inc., and PCP (KLP) Cogeneration Ltd.
3.30 Settlement Agreement, dated 5/6/94, among Ontario Hydro,
Kingston CoGen Limited Partnership, and Destec Energy, Inc.
3.31 Release Agreement, dated 5/6/94, among Ontario Hydro,
Kingston CoGen Limited Partnership, and Destec Energy, Inc.
3.32 Each purchase order or other document listed in Attachment
A to this Schedule 1.1 [TO BE ASSIGNED TO DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
3.33 Any notes, debt, dividend receivables, or any other
receivables from any of the International Entities relating
to the Kingston project payable to Destec or any other
affiliate (other than the International Entities)
22
3.34 Any escrow agreements, bank accounts, cash, or other
security or assets pledged in connection with any of the
International Entities relating to the Kingston project
3.35 Any other contracts and agreements in which Destec Energy,
Inc. or any of its Subsidiaries has rights, title, or
interest relating to the Kingston project
4. Elsta
-----
4.1 Restated Joint Development Agreement, dated 2/28/94, among
Dow Benelux NV, Destec Energy, Inc., et al.
4.2 Guaranty Agreement, dated 2/26/96, between Destec Operating
Company and Elsta B.V. & Co. C.V.
4.3 Engineering Services Agreement, dated 6/1/94 and as
amended, between Elsta B.V. & Co. C.V. and Destec
Engineering, Inc. [TO BE ASSIGNED TO DESTEC ENGINEERING,
INC. (CAYMAN ISLANDS COMPANY)]
4.4 Guaranty Agreement, dated 2/28/96, between Destec Energy,
Inc. and Elsta B.V. & Co. C.V.
4.5 Project Memorandum, dated 11/15/94, between Destec
Engineering, Inc. and Dow Engineering Company [TO BE
ASSIGNED TO DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]
4.6 Facility Management Services Agreement, dated 2/28/96,
between Elsta B.V. and Destec Management Services, Inc. [TO
BE ASSIGNED TO AES TERNEUZEN MANAGEMENT SERVICES B.V.]
4.7 Restated & Amended Testing Services Agreement, dated
6/4/96, between KEMA Nederland, B.V. and Elsta B.V. & Co.
C.V., and joined in by Destec Engineering, Inc. and
Terneuzen Operating Co. [TO BE ASSIGNED TO DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
4.8 Consultant Services Agreements, dated 9/15/93, between
Destec Energy, Inc. and each of N.V. Kema, B.V. DGMR, and
Tauw Infra Consult B.V.
23
4.9 Joint Development Agreement Termination & Restated Joint
Development Agreement, dated 11/8/95, among Dow Benelux
N.V., Destec Energy, Inc. et al.
4.10 Side Agreement, regarding Electricity Sale Agreement &
Steam & Electric Power Sales Agreement, dated _________,
among Destec Energy, Inc., Dow Benelux N.V. and N.V.
Provinciale Noordbrabantse Energie Maatschappij
4.11 Supplemental Agreement, dated 12/19/95, by and among
Shareholders and Partners of Elsta V.B. and Elsta E.V. &
Co. C.V. [TO BE ASSIGNED TO AES GLOBAL POWER HOLDINGS B.V.]
4.12 Any notes, debts, dividend receivables, or any other
receivables from any of the International Entities relating
to the Elsta project payable to Destec or any other
affiliate (other than the International Entities)
4.13 Any escrow agreements, bank accounts, cash, or other
security or assets pledged in connection with any of the
International Entities relating to the Elsta project
4.14 Any other contracts and agreements in which Destec Energy,
Inc. or any of its Subsidiaries has rights, title or
interest relating to the Elsta project
5. Los Mina
--------
5.1 Amended and Restated Loan Agreement dated 6/25/97, between
Destec Energy, Inc. and Dominican Power Partners LDC (as of
6/30/97--outstanding principal: US$72,588,157; accrued
interest: US$2,898,743 [TO BE ASSIGNED TO AES LOS MINA
HOLDINGS, INC.]
5.2 Replacement Repayment Obligation Note dated 6/25/97, by
Dominican Power Partners LDC to Destec Energy, Inc. [TO BE
ASSIGNED TO AES LOS MINA HOLDINGS, INC.]
5.3 Contractual right of Destec Energy, Inc. to purchase the 1%
interest in Dominican Power Partners LDC not currently held
by Destec Cayman Islands Holdings, Ltd. and/or to purchase
the stock of Turbine Energy, Inc. [TO BE ASSIGNED TO AES
LOS MINA HOLDINGS, INC.]
24
5.4 Any other notes, debts, dividend receivables, or any other
receivables from any of the International Entities relating
to the Los Mina project payable to Destec or any other
affiliate (other than the International Entities)
5.5 Any escrow agreements, bank accounts, cash, or other
security or assets pledged in connection with any of the
International Entities relating to the Los Mina project
5.6 Any other contracts and agreements in which Destec Energy,
Inc. or any of its Subsidiaries has rights, title, or
interest relating to the Los Mina project
6. Other
-----
6.1 Any and all confidentiality or similar agreements the
Company or its Subsidiaries have with any third party to
the extent that such agreement relates to the International
Assets
6.2 Any bank accounts of Destec Engineering, Inc. relating to
the International Assets [TO BE ASSIGNED TO DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
6.3 Non-exclusive, royalty-free licenses to any intellectual
property rights of Destec Energy, Inc. and its Subsidiaries
necessary to own, construct, operate, or maintain the
International Assets in the manner owned, constructed,
operated or maintained on the Closing Date or, with respect
to International Assets under construction as of the
Closing Date, in the manner contemplated as of the Closing
Date to be owned, constructed, operated or maintained
(excluding in each case trademarks and service marks
relating to the Destec Energy, Inc. name and logo and
excluding intellectual property rights related to coal
gasification technology) [TO BE ASSIGNED TO DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]
6.4 Any notes, debts, dividend receivables, or any other
receivables from any Person relating to the International
Assets and payable to Destec Engineering, Inc.
25
Schedule 1.3 of Disclosure Schedule
-----------------------------------
Assumed Liabilities
-------------------
A. All liabilities and obligations of the International Entities arising
under or otherwise related to the contracts and other agreements listed in the
following Sections of the Destec Energy, Inc. Data Room Master Index: (i)
Section V.B.1.c Indian Queens; (ii) Section V.B.1.d. Los Mina; (iii) Section
V.B.2.i. Elsta; (iv) Section V.B.2.x. Xxxxxxxxx; (v) Section V.B. 2.n. Kingston;
and any other written contracts and agreements entered into by any of the
International Entities prior to the Closing Date or listed on Schedule 1.1 of
the Disclosure Schedule (excluding the Excluded Projects).
B. All liabilities and obligations of Destec Energy, Inc. and its
Subsidiaries (other than the International Entitities) arising under or
otherwise related to the following agreements [UNLESS OTHERWISE NOTED, THE
FOLLOWING AGREEMENTS ARE TO BE ASSIGNED TO, AND ASSUMED BY, PARENT]:
1. Each of the following agreements relating to the Xxxxxxxxx project
(each as more fully defined in the noted paragraph of Part III.B.1 of
Schedule 1.1 of the Disclosure Schedule):
1.1 Guarantee Agreement, dated 8/2/96 (see (P) 1.1 of Part III.B.1 of
Schedule 1.1);
1.2 Share Sale Agreement, dated 8/4/96 (see (P) 1.2 of Part III.B.1
of Schedule 1.1);
1.3 Deed of Covenant, dated 9/13/96 (see (P) 1.3 of Part III.B.1 of
Schedule 1.1);
1.4 Guarantee and Indemnity, dated 9/13/96 (see (P) 1.4 of Part
III.B.1 of Schedule 1.1);
1.5 Loan Agreement, dated 6/25/97 (see (P) 1.5 of Part III.B.1 of
Schedule 1.1) [TO BE ASSUMED BY AES PIEDMONT II, INC.];
1.6 Agreement Date Advanced Note, dated 6/25/97 (see (P) 1.6 of Part
III.B.1 of Schedule 1.1) [TO BE ASSUMED BY AES PIEDMONT II,
INC.]; and
1.7 Agreement Date Unadvanced Note, dated 6/25/97 (see (P) 1.7 of
Part III.B.1 of Schedule 1.1) [TO BE ASSUMED BY AES PIEDMONT II,
INC.].
2. Each of the following agreements relating to the Indian Queens project
(each as more fully defined in the noted paragraph of Part III.B.2 of
Schedule 1.1 of the Disclosure Schedule):
2.1 Equity Contribution Agreement, dated [8/27/96] (see (P) 2.1 of
Part III.B.2 of Schedule 1.1);
2.2 Intercreditor Agreement, dated [8/27/96] (see (P) 2.2 of Part
III.B.2 of Schedule 1.1);
2.3 Engineering and Services Agreement, dated 6/30/94 (see (P) 2.3 of
Part III.B.2 of Schedule 1.1) [TO BE ASSUMED BY DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)]; and
2.4 Funding Agreement, dated 8/7/96 (see (P) 2.4 of Part III.B.2 of
Schedule 1.1) [TO BE ASSUMED BY AES GLOBAL POWER HOLDINGS B.V.].
3. Each of the following agreements relating to the Kingston project
(each as more fully defined in the noted paragraph of Part III.B.3
of Schedule 1.1 of Disclosure Schedule):
3.1 Letter Agreement, dated 10/31/95 (see (P) 3.1 of Part III.B.3 of
Schedule 1.1);
3.2 Letter Agreement, dated 3/1/96 (see (P) 3.2 of Part III.B.3 of
Schedule 1.1);
3.3 Equity Guaranty, dated 6/30/95 (see (P) 3.3 of Part III.B.3 of
Schedule 1.1);
3.4 Amended & Restated Equity Guaranty, dated 12/29/95 (see (P) 3.4
of Part III.B.3 of Schedule 1.1);
3.5 EPC Guaranty, dated 6/30/95 (see (P) 3.5 of Part III.B.3 of
Schedule 1.1);
3.6 Contingent Equity Reimbursement Guaranty, dated 2/29/95 (see (P)
3.6 of Part III.B.3 of Schedule 1.1);
3.7 Engineering and Procurement Agreement dated Xxxxx 00, 0000 (xxx
(X) 3.7 of Part III.B.3 of Schedule 1.1) [TO BE ASSUMED BY DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
3.8 Consent and Agreement dated June 30, 1995 (see (P) 3.8 of Part
III.B.3 of Schedule 1.1) [TO BE ASSUMED BY DESTEC ENGINEERING,
INC. (CAYMAN ISLANDS COMPANY)];
-2-
3.9 Letter dated June 29, 1995 (see (P) 3.9 of Part III.B.3 of
Schedule 1.1) [TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN
ISLANDS COMPANY)];
3.10 Letter Agreement dated January 23, 1997 (see (P) 3.10 of Part
III.B.3 of Schedule 1.1) [TO BE ASSUMED BY DESTEC ENGINEERING,
INC. (CAYMAN ISLANDS COMPANY)];
3.11 Engineering, Procurement and Construction Agreement dated May 5,
1995 (see (P) 3.11 of Part III.B.3 of Schedule 1.1) [TO BE
ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
3.12 Major Subcontractor Consent and Agreement dated June 30, 1995
(see (P) 3.12 of Part III.B.3 of Schedule 1.1) [TO BE ASSUMED BY
DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
3.13 Letter of Credit in favor of Destec Engineering, Inc. issued
August 21, 1995 (see (P) 3.13 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.14 Letter of Credit in favor of Destec Engineering, Inc. issued
September 26, 1995 (see (P) 3.14 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.15 Letter of Credit in favor of Destec Engineering, Inc. issued
September 20, 1995 (see (P) 3.15 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.16 Letter of Credit in favor of Destec Engineering, Inc. issued
October 23, 1995 (see (P) 3.16 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.17 Letter of Credit in favor of Destec Engineering, Inc. issued
September 22, 1995 (see (P) 3.17 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.18 Letter of Credit in favor of Destec Engineering, Inc. issued
November 22, 1995 (see (P) 3.18 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.19 Letter of Credit in favor of Destec Engineering, Inc. issued
November 22, 1995 (see (P) 3.19 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
-3-
3.20 Letter of Credit in favor of Destec Engineering, Inc. issued
December 24, 1996 (see (P) 3.20 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.21 Letter of Credit in favor of Destec Engineering, Inc. issued
December 7, 1995 (see (P) 3.21 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.22 Letter of Credit in favor of Destec Engineering, Inc. issued
November 30, 1995 (see (P) 3.22 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.23 Letter of Credit in favor of Destec Engineering, Inc. issued
April 10, 1996 (see (P) 3.23 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.24 Letter of Credit in favor of Destec Engineering, Inc. issued
November 9, 1995 (see (P) 3.24 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.25 Letter of Credit in favor of Destec Engineering, Inc. issued
November 9, 1995 (see (P) 3.25 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.26 Letter of Credit in favor of Destec Engineering, Inc. issued
July 19, 1996 (see (P) 3.26 of Part III.B.3 of Schedule 1.1) [TO
BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
3.27 Letter of Credit in favor of Destec Engineering, Inc. issued
October 8, 1996 (see (P) 3.27 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.28 Purchase Agreement, dated 12/29/95 (see (P) 3.28 of Part III.B.3
of Schedule 1.1);
3.29 First Amended and Restated Side Agreement #2, dated 2/23/95 (see
(P) 3.29 of Part III.B.3 of Schedule 1.1);
3.30 Settlement Agreement, dated 5/6/94 (see (P) 3.30 of Part III.B.3
of Schedule 1.1);
3.31 Release Agreement, dated 5/6/94 (see (P) 3.31 of Part III.B.3 of
Schedule 1.1);
-4-
3.32 Each purchase order or other document listed in Attachment A to
Schedule 1.1 (see (P) 3.32 of Part III.B.3 of Schedule 1.1) [TO
BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
and
3.33 Litigation --
i. Statement of Claim filed by LaFarge Canada, Inc. against
Kingston Northern Lights, Inc., Destec Energy, Inc.,
Kingston CoGen Limited Partnership, Xxxxx Power Company
Limited, X.X. Xxx Limited, and C&M Construction (Kingston)
Limited;
ii. Statement of Claim filed by Muttart Builders' Supplies
Limited against Kingston Northern Lights, Inc., C&M
Construction (Kingston) Limited, Xxxx Xxxxxx, and X.X. Xxx
Limited;
iii. Statement of Claim filed by Inspec-Sol (Ontario) Ltd.
against Kingston Northern Lights, Inc., C&M Construction
(Kingston) Limited, Xxxxx Power Company Limited, and X.X.
Xxx Limited;
iv. Statement of Claim filed by Xxxxxx XxXxxxxxxxx Mechanical
Limited against Kingston Northern Lights, Inc., Xxxxx Power
Company Limited, and The Bank of Nova Scotia;
v. Statement of Claim filed by Xxxx Rentals, Inc. against
Kingston Northern Lights, Inc. and C&M Construction
(Kingston) Limited;
vi. Statement of Claim filed by C&M Construction (Kingston)
Limited against Kingston Northern Lights, Inc., Destec
Energy, Inc., Xxxxx Power Company Limited, and X.X. Xxx
Limited;
vii. Statement of Claim filed by X.X. Xxx Limited against
Kingston Northern Lights, Inc., Destec Constructors, Inc.,
Xxxxx Power Company Limited, and Destec Engineering, Inc.;
and
viii. Statement of Claim filed by Xxxxx Power Company Limited
and X.X. Xxxxx Construction Company against Kingston
Northern Lights, Inc., Destec Constructors, Inc., Kingston
CoGen Limited Partnership, and Destec Engineering, Inc.
-5-
4. Each of the following agreements relating to the Elsta project (each
as more fully defined in the noted paragraph of Part III.B.4 of
Schedule 1.1 of Disclosure Schedule):
4.1 Restated Joint Development Agreement, dated 2/28/94 (see (P) 4.1
of Part III.B.4 of Schedule 1.1);
4.2 Guaranty Agreement, dated 2/26/96 (see (P) 4.2 of Part III.B.4 of
Schedule 1.1);
4.3 Engineering Services Agreement, dated 6/1/94 and as amended (see
(P) 4.3 of Part III.B.4 of Schedule 1.1) [TO BE ASSUMED BY DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
4.4 Guaranty Agreement, dated 2/28/96 (see (P) 4.4 of Part III.B.4 of
Schedule 1.1);
4.5 Project Memorandum, dated 11/15/94 (see (P) 4.5 of Part III.B.4
of Schedule 1.1) [TO BE ASSUMED BY DESTEC ENGINEERING, INC.
(CAYMAN ISLANDS COMPANY)];
4.6 Facility Management Services Agreement, dated 2/28/96 (see (P)
4.6 of Part III.B.4 of Schedule 1.1);
4.7 Restated & Amended Testing Services Agreement, dated 6/4/96 (see
(P) 4.7 of Part III.B.4 of Schedule 1.1) [TO BE ASSUMED BY DESTEC
ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
4.8 Consultant Services Agreements, dated 9/15/93 (see (P) 4.8 of
Part III.B.4 of Schedule 1.1);
4.9 Joint Development Agreement Termination & Restated Joint
Development Agreement, dated 11/8/95 (see (P) 4.9 of Part III.B.4
of Schedule 1.1);
4.10 Side Agreement, regarding Electricity Sale Agreement & Steam &
Electric Power Sales Agreement, dated _________ (see (P) 4.10 of
Part III.B.4 of Schedule 1.1); and
4.11 Supplemental Agreement, dated 12/19/95 (see (P) 4.11 of Part
III.B.4 of Schedule 1.1) [TO BE ASSUMED BY AES GLOBAL POWER
HOLDINGS B.V.].
-6-
5. Each of the following agreements relating to the Los Mina project
(each as more fully defined in the noted paragraph of Part III.B.5 of
Schedule 1.1 of Disclosure Schedule):
5.1 Amended and Restated Loan Agreement dated 6/25/97 (see (P) 5.1 of
Part III.B.5 of Schedule 1.1) [TO BE ASSUMED BY AES LOS MINA
HOLDINGS]; and
5.2 Replacement Repayment Obligation Note dated 6/25/97 (see (P) 5.2
of Part III.B.5 of Schedule 1.1) [TO BE ASSUMED BY AES LOS
MINA HOLDINGS].
-7-
Schedule 6.2 of Disclosure Schedule
-----------------------------------
Employees
----------
AES will assume the severance and related employee benefits costs for the
following international personnel:
Xxxx Xxxxxxxx 100%
Xxxxxxx Xxxxxx 100%
Xxxxxx Xxxxxxxx 100%
Xxxxxx Faire 100%
Xxxxx Xxxxxxxx 100%
Xx Xxxxxxxxx 100%
Xxxxxxx Xxxxx 100%
Xxxxxx Xxxxxxxx 100%
Xxxxxxx XxXxxxxxx 100%
Xxxxx Xxxxx 100%
Xxxxx Xxxxxx 100%
Xxxxxxx Xxxxxx 100%
X. Xxxxxxx 100%
Xxx Xxxxxxxx 100%
Schedule 6.3(b) of Disclosure Schedule
--------------------------------------
Credit Support Obligations, Guarantees, and Contribution Obligations
--------------------------------------------------------------------
A. All credit support obligations, guarantees, and contribution
obligations of the International Entities arising under or otherwise related to
the contracts and other agreements listed in the following Sections of the
Destec Energy, Inc. Data Room Master Index: (i) Section V.B.1.c Indian Queens;
(ii) Section V.B.1.d. Los Mina; (iii) Section V.B.2.i. Elsta; (iv) Section
V.B.2.x. Xxxxxxxxx, and (v) Section V.B.2.n. Kingston.
B. All liabilities and obligations of Destec Energy, Inc. and its
Subsidiaries (other than the International Entitities) arising under or
otherwise related to the following specified agreements:
1. Each of the following agreements relating to the Xxxxxxxxx project
(each as more fully defined in the noted paragraph of Part III.B.1 of
Schedule 1.1 of the Disclosure Schedule):
1.1 Guarantee Agreement, dated 8/2/96 (see (P) 1.1 of Part III.B.1 of
Schedule 1.1);
1.2 Share Sale Agreement, dated 8/4/96 (see (P) 1.2 of Part III.B.1
of Schedule 1.1);
1.3 Guarantee and Indemnity, dated 9/13/96 (see (P) 1.4 of Part
III.B.1 of Schedule 1.1); and
1.4 Any other credit support obligations, guarantees, and
contribution obligations of Destec Energy, Inc. or its
Subsidiaries relating to the Xxxxxxxxx Project.
2. Each of the following agreements relating to the Indian Queens Project
(each as more fully defined in the noted paragraph of Part III.B.2 of
Schedule 1.1 of the Disclosure Schedule):
2.1 Equity Contribution Agreement, dated 8/27/96 (see (P) 2.1 of Part
III.B.2 of Schedule 1.1); and
2.2 Any other credit support obligations, guarantees, and
contribution obligations of Destec Energy, Inc. or its
Subsidiaries relating to the Indian Queens Project.
3. Each of the following agreements relating to the Kingston Cogen
Project (each as more fully defined in the noted paragraph of Part
III.B.3 of Schedule 1.1 of the Disclosure Schedule):
3.1 Letter Agreement, dated 10/13/95 (see (P) 3.1 of Part III.B.3 of
Schedule 1.1);
3.2 Equity Guaranty, dated 6/30/95 (see (P) 3.3 of Part III.B.3 of
Schedule 1.1);
3.3 Amended and Restated Equity Guaranty, dated 12/29/95 (see (P) 3.4
of Part III.B.3 of Schedule 1.1);
3.4 EPC Guaranty, dated 6/30/95 (see (P) 3.5 of Part III.B.3 of
Schedule 1.1);
3.5 Contingent Equity Reimbursement Guaranty, dated 2/29/95 (see (P)
3.6 of Part III.B.3 of Schedule 1.1);
3.6 Letter of Credit in favor of Destec Engineering, Inc. issued
August 21, 1995 (see (P) 3.13 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.7 Letter of Credit in favor of Destec Engineering, Inc. issued
September 26, 1995 (see (P) 3.14 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.8 Letter of Credit in favor of Destec Engineering, Inc. issued
September 20, 1995 (see (P) 3.15 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.9 Letter of Credit in favor of Destec Engineering, Inc. issued
October 23, 1995 (see (P) 3.16 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.10 Letter of Credit in favor of Destec Engineering, Inc. issued
September 22, 1995 (see (P) 3.17 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.11 Letter of Credit in favor of Destec Engineering, Inc. issued
November 22, 1995 (see (P) 3.18 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.12 Letter of Credit in favor of Destec Engineering, Inc. issued
November 22, 1995 (see (P) 3.19 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
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3.13 Letter of Credit in favor of Destec Engineering, Inc. issued
December 24, 1996 (see (P) 3.20 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.14 Letter of Credit in favor of Destec Engineering, Inc. issued
December 7, 1995 (see (P) 3.21 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.15 Letter of Credit in favor of Destec Engineering, Inc. issued
November 30, 1995 (see (P) 3.22 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.16 Letter of Credit in favor of Destec Engineering, Inc. issued
April 10, 1996 (see (P) 3.23 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.17 Letter of Credit in favor of Destec Engineering, Inc. issued
November 9, 1995 (see (P) 3.24 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.18 Letter of Credit in favor of Destec Engineering, Inc. issued
November 9, 1995 (see (P) 3.25 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)];
3.19 Letter of Credit in favor of Destec Engineering, Inc. issued
July 19, 1996 (see (P) 3.26 of Part III.B.3 of Schedule 1.1) [TO
BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS COMPANY)];
3.29 Letter of Credit in favor of Destec Engineering, Inc. issued
October 8, 1996 (see (P) 3.27 of Part III.B.3 of Schedule 1.1)
[TO BE ASSUMED BY DESTEC ENGINEERING, INC. (CAYMAN ISLANDS
COMPANY)]; and
3.21 Any other credit support obligations, guarantees and contribution
obligations of Destec Energy, Inc. or its Subsidiaries relating
to the Kingston Cogen Project.
4. Each of the following agreements relating to the Elsta Project (each
as more fully described in the noted paragraph of Part III.B.4 of
Schedule 1.1):
4.1 Guaranty Agreement, dated 2/26/96 (see (P) 4.2 of Part III.B.4 of
Schedule 1.1);
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4.2 Guaranty Agreement, dated 2/28/96 (see (P) 4.3 of Part III.B.4 of
Schedule 1.1);
4.3 Supplemental Agreement, dated 12/95 (see (P) 4.12 of Part III.B.4
of Schedule 1.1) [TO BE ASSUMED BY GLOBAL POWER HOLDINGS B.V.];
and
4.4 Any other credit support obligations, guarantees, and
contribution obligations of Destec Energy, Inc. or its
Subsidiaries relating to the Elsta Project.
5. Any other credit support obligations, guarantees, and contribution
obligations of Destec Energy, Inc. or its Subsidiaries (other than the
International Entities) relating to the International Assets and
International Businesses.
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