EXHIBIT 2.3
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STOCK PURCHASE
AND ASSIGNMENT
AGREEMENT
By and
Among
KES PUERTO RICO, L.P.,
and
KENETECH ENERGY SYSTEMS, INC.
and
KES BERMUDA, INC.
and
EME DEL CARIBE
and
EDISON MISSION ENERGY
dated as
of
December 23, 1998
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TABLE OF CONTENTS
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Page
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1. DEFINITIONS................................................................................................... 2
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2. SALE AND PURCHASE............................................................................................. 2
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3. CLOSING....................................................................................................... 2
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3.1. Time and Place........................................................................................ 2
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3.2. Transactions at Closing............................................................................... 2
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4. REPRESENTATIONS AND WARRANTIES OF THE KES ENTITIES............................................................ 4
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4.1. Organization; Authority............................................................................... 4
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4.2. Approval; Binding Effect.............................................................................. 5
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4.3. Non-Contravention..................................................................................... 5
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4.4. Governmental Consents................................................................................. 5
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4.5. Proceedings........................................................................................... 5
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4.6. Financial Statements.................................................................................. 6
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4.7. Shareholders Agreement................................................................................ 6
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4.8. Brokers............................................................................................... 6
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4.9. Bankruptcy............................................................................................ 6
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4.10. Investment Company Act................................................................................ 7
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4.11. Capitalization........................................................................................ 7
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4.12. Special Purpose Entities.............................................................................. 8
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4.13. Title to the Interest, Liens, etc..................................................................... 8
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4.14. All Required KPR Capital Contributions Made Under Shareholders Agreement.............................. 8
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4.15. The Project........................................................................................... 8
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4.16. Limitations on Representations and Warranties......................................................... 10
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5. REPRESENTATIONS AND WARRANTIES OF BUYER....................................................................... 11
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5.1. Organization; Authority............................................................................... 11
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5.2. Corporate Approval; Binding Effect.................................................................... 11
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5.3. Non-Contravention..................................................................................... 12
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5.4. Governmental Consents................................................................................. 12
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5.5. Brokers............................................................................................... 12
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5.6. No Financing.......................................................................................... 12
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5.7. Investment Company Act................................................................................ 12
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5.8. Due Diligence Review.................................................................................. 12
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5.9. No Registration; Investment Representation: Accredited Investor; Sophisticated Person................. 13
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5.10. Employee Benefits Plan................................................................................ 13
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5.11. Status as an "Electric Utility"....................................................................... 13
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5.12. Compliance with Confidentiality Agreement............................................................. 14
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6. INTENTIONALLY OMITTED......................................................................................... 14
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7. CONDITIONS PRECEDENT TO BUYER PARTIES' OBLIGATIONS........................................................... 14
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7.1. Representations and Warranties True at Closing....................................................... 14
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7.2. Compliance With Agreement............................................................................ 14
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7.3. Officer's Certificate................................................................................ 14
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7.4. Resolution of the QF Issue........................................................................... 14
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7.5. Consents............................................................................................. 14
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7.6. Suits and Proceedings................................................................................ 14
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7.7. No Material Adverse Change........................................................................... 14
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7.8. Resignations of Directors and Officers............................................................... 15
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7.9. Releases............................................................................................. 15
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7.10. Affidavit............................................................................................ 15
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7.11. Fieldstone Fairness Opinion.......................................................................... 15
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7.12. KPMG Comfort Letter.................................................................................. 15
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7.13. Notices Under the Credit Agreement................................................................... 16
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7.14. Opinion of Counsel................................................................................... 16
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7.15. Certificate Documents................................................................................ 16
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8. CONDITIONS PRECEDENT TO KES ENTITY OBLIGATIONS............................................................... 16
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8.1. Representations and Warranties True at Closing....................................................... 16
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8.2. Compliance with Agreement............................................................................ 16
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8.3. Officer's Certificate................................................................................ 16
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8.4. Opinion of Counsel................................................................................... 17
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8.5. Assumption of Certain Obligations.................................................................... 17
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8.6. Certificates, Documents.............................................................................. 17
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9. CONFIDENTIAL INFORMATION..................................................................................... 17
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10. HSR ACT...................................................................................................... 17
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11. POST CLOSING TAX INCENTIVE................................................................................... 17
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12. RELEASE...................................................................................................... 17
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13. GENERAL...................................................................................................... 18
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13.1. Expenses............................................................................................. 18
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13.2. Notices.............................................................................................. 18
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13.3. Entire Agreement..................................................................................... 20
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13.4. Governing Law; CONSENT TO JURISDICTION............................................................... 20
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13.5. Sections and Section Headings........................................................................ 20
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13.6. Assigns.............................................................................................. 20
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13.7. Further Assurances................................................................................... 20
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13.8. No Implied Rights or Remedies........................................................................ 21
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13.9. Knowledge............................................................................................ 21
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13.10. Counterparts......................................................................................... 21
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13.11. Satisfaction of Conditions Precedent................................................................. 21
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13.12. Time is of the Essence and Best Efforts.............................................................. 21
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13.13. Survival of Representations and Warranties........................................................... 21
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Schedules
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4.5 Proceedings
4.6 Material Liabilities
7.5 Required Consents
7.9 Resignations of Directors and Officers
Exhibits
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A Assignment and Assumption Agreement
B Confidentiality Agreement
C PREPA Waiver Agreement
STOCK PURCHASE AND ASSIGNMENT AGREEMENT
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THIS STOCK PURCHASE AND ASSIGNMENT AGREEMENT (this "Agreement") is dated as
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of the 23rd day of December, 1998, by and between (i) EME del Caribe, a Cayman
Islands company limited by shares ("Buyer") and Edison Mission Energy, a
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California corporation ("Assignee," collectively with the Buyer, the "Buyer
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Parties") and (ii) KES Puerto Rico, L.P., a Bermuda exempted limited partnership
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("KPR"), KENETECH Energy Systems, Inc., a Delaware corporation ("KES") and KES
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Bermuda, Inc., a Delaware corporation ("KBI", collectively with KPR and KES, the
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"KES Entities").
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WHEREAS, KPR owns a fifty percent (50%) interest in EcoElectrica Holdings,
Ltd., a Cayman Islands company limited by shares (the "Company"), in the form of
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the issued and outstanding Class B Shares (as defined in Section 4.11 hereof) of
the Company (the "Interest");
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WHEREAS, the Company directly owns a one hundred percent (100%) interest in
EcoElectrica, Ltd., a Cayman Islands company limited by shares (the "General
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Partner"), and owns a ninety-nine percent (99%) interest in EcoElectrica, L.P.,
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a Bermuda exempted limited partnership (the "Project Partnership"), which was
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formed to develop, design, finance, construct, own and operate an approximately
540 megawatt (net) natural gas-fired cogeneration facility, liquefied natural
gas import terminal, a desalination facility and certain other auxiliary and
related assets (collectively, the "Project"); the General Partner owns a one
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percent (1%) interest in the Project Partnership;
WHEREAS, in order to set forth an understanding regarding certain elements
of the relationships involving the Company, the Project Partnership and the
General Partner, KPR entered into that certain Shareholders Agreement, dated as
of December 10, 1997, by and among KPR, the Company and Buenergia Gas & Power,
Ltd., a Cayman Islands company limited by shares (the "Shareholders Agreement");
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WHEREAS, KBI has entered into an Administrative Services Agreement with the
Project Partnership, dated as of October 31, 1997 (the "Administrative Services
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Agreement"), pursuant to which KBI receives a fee, plus expense reimbursement
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for providing advisory services to the Project Partnership;
WHEREAS, KES has received a note issued by the Project Partnership payable
to KES in the original principal amount of $22,064,185 for unpaid development
fees (the "Project Note");
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WHEREAS, KPR desires to sell the Interest to Buyer, KES desires to assign
all of its rights and other interests in the Project Note to Assignee, and KBI
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desires to assign all of its rights and other interests in the Administrative
Services Agreement to Buyer, and Buyer desires to purchase the Interest of KPR
in the Company and to take in assignment the Administrative Services Agreement
from KBI, and Assignee desires to take in assignment the Project Note from KES,
each upon the terms and subject to the conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the Buyer Parties and the KES Entities agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition, which
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are defined in or by reference in the Shareholders Agreement, shall have the
same meanings herein as therein.
2. SALE AND PURCHASE. Subject to the terms and conditions set forth in
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this Agreement: (a) KPR agrees to sell to Buyer, and Buyer agrees to purchase
from KPR, the Interest; (b) KES agrees to assign to Assignee, and Assignee
agrees to take in assignment from KES, all of KES's rights and other interests
in the Project Note; and (c) KBI agrees to assign to Buyer, and Buyer agrees to
take in assignment from KBI, all of KBI's rights and other interests in the
Administrative Services Agreement. In exchange for these items, the Buyer
Parties shall tender payment of an aggregate cash purchase price equal to
$213,500,000, which payment shall be applied in accordance with Section 3.2(c)
plus the payment, if any, to be made pursuant to Section 11 (such payments
collectively, the "Purchase Price").
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3. CLOSING.
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3.1. TIME AND PLACE. The closing of the sale and purchase of the
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Interest and the assignment of the Project Note and the Administrative Services
Agreement (the "Closing") shall be held at the offices of Xxxxxxx Xxxx LLP, 000
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Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000 at 10:00 a.m. on December 23, 1998, or at
such other time, or at such other place as the Buyer Parties and the KES
Entities may agree. The date on which the Closing is actually held hereunder is
sometimes referred to herein as the "Closing Date".
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3.2. TRANSACTIONS AT CLOSING. At the Closing:
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(a) KPR shall deliver to Buyer, free and clear of any lien, claim or
encumbrance, a certificate representing all of the Interest, duly endorsed
in blank or with duly executed stock powers attached, and Buyer shall
undertake certain duties and obligations under the Shareholder's Agreement
pursuant to an Assignment and Assumption Agreement in the form of Exhibit
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A-1 hereto. KBI shall assign to Buyer, free and clear of any lien, claim or
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encumbrance, the Administrative Services Agreement
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pursuant to an Assignment and Assumption Agreement in the form of Exhibit
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A-2 hereto. KES shall assign to Assignee, free and clear of any lien, claim
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or encumbrance, the Project Note pursuant to an Assignment and Assumption
Agreement in the form of Exhibit A-3 hereto (collectively, the "Assignment
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and Assumption Agreements").
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(b) The Buyer Parties shall execute and deliver to the KES Entities
the following documents:
(i) an Equity Support Guarantee in the form attached as
Exhibit E-2-B to the Depositary Agreement (as defined in the Credit
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Agreement), providing a $33.5 million equity funding guarantee;
(ii) a Master Guarantee and Support Instrument in the form
attached as Exhibit D-1 to the Depositary Agreement;
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(iii) a Guarantee Assumption Agreement in the form attached as
Exhibit C to the Shareholders Agreement;
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(iv) a Consent and Assignment in the form of that which was
delivered by KBI on October 31, 1997, mutatis mutandis, pursuant to
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the Credit Agreement; and
(v) the Assignment and Assumption Agreements in the forms of
Exhibit X-0, X-0, and A-3.
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(c) The Buyer Parties shall deliver the Purchase Price by wire
transfer of immediately available funds:
(i) to Fleet National Bank, Hartford, CT to ABA #000-000-000,
for the account of Lyon Credit Corporation at Account No. 007030-0226
in the amount of $27,351,564.53;
(ii) to Sanwa Bank California, Los Angeles, CA to ABA
#000000000, for the account of KENETECH Windpower Inc. Debtor in
Possession, Account No. 0665-28604, in the amount of $6,500,000;
(iii) to Bank of New York, New York, NY to ABA #0210 00018, as
Indenture Trustee for GLA #111-565, for further credit to Account No.
308335, for A/C Risk - KENETECH (the account of the Indenture
Trustee), in the amount of $145,346,695.50;
(iv) to Bank of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, XX to ABA
#000000000, for the account of Fieldstone Private Capital
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Group, L.P. at Account Name: FPCG Services, L.P., Account No.:
8900148829, in the amount of $2,000,000;
(v) to Sanwa Bank California, San Francisco, CA to ABA
#000000000, for the account of KENETECH Energy Systems, Inc., Payroll
Account, Account No. 0662-26054 in the amount of $8,000,000; and
(vi) the balance of the Purchase Price (not including any amount
payable under Section 11) to Bank of New York, New York, NY to ABA
#000000000, Account No. 8900 11 8245, for the account of Fidelity
Group of Funds Institutional Account, for further credit to KENETECH
Energy Systems, Inc., Account No. 0059-00080389620 in the amount of
$24,301,740.00.
(d) The Buyer Parties shall make the payment to PREPA under the
Waiver Agreement (each as defined in Section 7.4), to Citibank, NY, New
York, NY to ABA #000000000, for Citibank, PR as Receiving Bank, Account
No. 10-99-1506, for further credit to PREPA Citi-Cogen Funds, Account No.
0-000000-000, in the amount of $29,275,000;
4. REPRESENTATIONS AND WARRANTIES OF THE KES ENTITIES. The KES Entities
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represent and warrant to the Buyer Parties as follows:
4.1. ORGANIZATION; AUTHORITY. Each of KES and KBI is a corporation
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duly organized, validly existing and in good standing in the State of Delaware.
KPR is a Bermuda exempted limited partnership under the Bermuda Exempted
Limited Partnership Act, 1992 and the Bermuda Limited Partnership Act, 1883,
duly established, validly existing and in good standing in Bermuda. Each of the
Company and the General Partner is a Cayman Islands company limited by shares,
duly organized, validly existing and in good standing in the Cayman Islands. The
Project Partnership is a limited partnership under the Bermuda Exempted Limited
Partnership Act, 1992 and the Bermuda Limited Partnership Act, 1883, duly
established, validly existing and in good standing in Bermuda. Each of the KES
Entities has delivered to the Buyer Parties complete and correct copies of its
limited partnership or corporate charter documents and by-laws or other
organizational documents, and all amendments thereto, as applicable. KPR has
delivered to Buyer complete and correct copies of the limited partnership or
corporate charter documents and by-laws or other organizational documents and
all amendments thereto, as applicable, for the Company, the General Partner and
the Project Partnership. Each of KPR, KES and KBI has all requisite power and
authority under its limited partnership or corporate charter documents and
bylaws or other organizational documents, as applicable, and all
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amendments thereto, and under applicable laws to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and to perform
all its agreements and obligations under this Agreement in accordance with its
terms, and to sell the Interest and assign the Administrative Services Agreement
to the Buyer and the Project Note to Assignee.
4.2. APPROVAL; BINDING EFFECT. The KES Entities have given all
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necessary notices and obtained all necessary authorizations and approvals of any
Person, other than a Governmental Person, required for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by each of the KES
Entities and constitutes the legal, valid and binding obligation of each of the
KES Entities, enforceable against each of the KES Entities in accordance with
its terms, except to the extent such enforceability is subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or other law
affecting or relating to creditors' rights generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
4.3. NON-CONTRAVENTION. Neither the execution and delivery of this
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Agreement by any KES Entity nor the consummation by any KES Entity of the
transactions contemplated hereby will constitute a violation of, or be in
conflict with, or constitute or create a default under, or result in the
creation or imposition of any lien, claim or encumbrance upon any property of
any KES Entity, KENETECH Corporation ("KES's Parent"), the Company, the General
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Partner or the Project Partnership, which either individually or in the
aggregate could reasonably be expected to have a material adverse effect on the
business, operations or financial condition of the Company, the General Partner,
the Project Partnership or any of the KES Entities taken as a whole (a "Material
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Adverse Effect") pursuant to: (a) the charter documents or by-laws or other
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organizational documents of KES's Parent, the Company, the General Partner, the
Project Partnership or any of the KES Entities, each as amended to date; (b) any
material agreement or commitment to which KES's Parent, the Company, the General
Partner, the Project Partnership or any of the KES Entities is a party; (c) the
Settlement Agreement and any other agreement to which KES is or may be a party
with its creditors; or (d) any statute or any judgment, decree, order,
regulation or rule of any court or other Governmental Person.
4.4. GOVERNMENTAL CONSENTS. No consent, approval or authorization of,
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or registration, qualification or filing with, any Governmental Person is
required for the execution and delivery of this Agreement by the KES Entities or
for the consummation by the KES Entities of the transactions contemplated
hereby, other than those already obtained on or prior to Closing.
4.5. PROCEEDINGS. Except as disclosed in Schedule 4.5, to the actual
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knowledge of its officers, the KES Entities know of no material actions, suits,
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proceedings or investigations pending or threatened against or affecting any KES
Entity, the Company, the General Partner or the Project Partnership, in, by or
before any court, agency, commission, arbitrator, board, authority or other
tribunal.
4.6. FINANCIAL STATEMENTS. Each unaudited balance sheet dated
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December 31, 1997, March 31, 1998, June 30, 1998 and September 30, 1998, and
statement of income for the quarter then ended, delivered to Buyer with respect
to each KES Entity, the Company, the General Partner and the Project Partnership
("Financial Statements") has been prepared in accordance with generally accepted
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accounting principles, consistently applied, and fairly and accurately presents
the financial condition and results of operations of each such entity as at the
date and for the period shown therein, subject to normal year-end adjustments
made to conform such statements to generally accepted accounting principles.
Except as (a) reflected in such Financial Statements or, (b) disclosed in
Schedule 4.6 and which will be released at Closing, none of the KES Entities,
the Company, the General Partner or the Project Partnership has any material
liabilities or obligations, which are required to be disclosed in a balance
sheet prepared in accordance with generally accepted accounting principles.
Since the date of such Financial Statements, each of the KES Entities, the
Company, the General Partner and the Project Partnership has conducted its
business in the ordinary course of its business consistent with past practice,
and has not entered into any material agreement, commitment or transaction
except in the ordinary course of its business or increased its indebtedness
(other than by means of preexisting credit facilities) or other material
liabilities.
4.7. SHAREHOLDERS AGREEMENT. Prior to the date hereof, KPR has
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delivered to the Buyer Parties, true, correct and complete copies of the
Company's charter documents and the Shareholders Agreement, each of which is in
full force and effect and has not been amended, modified or supplemented.
4.8. BROKERS. Except for Fieldstone Private Capital Group, L.P.,
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which has been retained by KES, no KES Entity has retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement. KES shall be responsible for the payment of all
commissions, fees and expenses of Fieldstone Private Capital Group, L.P., other
than those payable by the Buyer in connection with the Opinion mentioned in
Section 7.11.
4.9. BANKRUPTCY. Neither KES's Parent, the Company, the General
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Partner, the Project Partnership nor any KES Entity has filed any voluntary
petition in bankruptcy or been adjudicated as bankrupt or insolvent, filed any
petition or answer seeking any reorganization, liquidation, dissolution or
similar relief under any federal bankruptcy, insolvency, or other debtor relief
law, or sought or consented to or acquiesced in the appointment of any trustee,
receiver,
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hundred percent (100%) in the General Partner, which directly owns a one
percent (1%) interest in the Project Partnership.
4.12. SPECIAL PURPOSE ENTITIES. Each of KPR and KBI is a special
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purpose entity, created as a part of the vehicle through which KES holds its
interests in the Project. Neither KPR nor KBI engages in any other business or
activities or holds any material assets other than its indirect interest in the
Project, or is subject to any material contractual liabilities, other than those
incurred in connection with the Project, all of which assets and liabilities
have been disclosed to Buyer in writing on or prior to the date of this
Agreement. Such disclosed liabilities include certain liabilities associated
with employment contracts of certain KES Entity employees and the debt of KES
Penuelas Holdings, Inc., a subsidiary of KES, to Lyon Credit Corporation. All
obligations of KES Penuelas Holdings, Inc. owing to Lyon Credit Corporation
shall be paid in full on the Closing Date. All compensation related to the
Project payable to employees of the KES Entities pursuant to such employment
contracts as of the Closing Date (other than normal salary compensation) will be
paid in full from the proceeds of the transaction contemplated hereby.
4.13. TITLE TO THE INTEREST, LIENS, ETC. Upon consummation of the
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transactions contemplated hereby at Closing, Buyer and Assignee, as the case may
be, will have, record and beneficial ownership of, and good marketable title to
the Interest, the Administrative Services Agreement and the Project Note, free
and clear of any mortgage, lien, pledge, charge, security interest, encumbrance,
option, equity or other adverse claim thereto, except as set forth in the
Shareholders Agreement and the Credit Agreement with respect to the
subordination provisions applicable to the Project Note and the Administrative
Services Agreement.
4.14. ALL REQUIRED KPR CAPITAL CONTRIBUTIONS MADE UNDER SHAREHOLDERS
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AGREEMENT. KPR has made all capital contributions required by the terms of the
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Shareholders Agreement payable prior to the date hereof. No capital
contributions are required to be made by KPR in the future, except as required
by the terms of the Shareholders Agreement.
4.15. THE PROJECT.
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(a) Project Contracts. Prior to the date of this Agreement, the KES
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Entities have delivered to the Buyer Parties true, correct and complete
copies of all Project Agreements, and all amendments, supplements and
modifications thereto. The KES Entities have not received any notice of the
occurrence of any default or event of default or material breach by the
Project Partnership, as such terms are defined under any of the Project
Agreements.
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(b) Project Note and Administrative Services Contract. Each of the
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Project Note and the Administrative Services Agreement is in full force and
effect and has not been modified, amended or supplemented. No breach or
default by any KES Entity has occurred and is continuing under the Project
Note or the Administrative Services Agreement, or will occur as a result of
the transactions contemplated to occur at Closing pursuant to this
Agreement.
(c) Ownership of Property and Assets. As of the date hereof, each of
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the Company, the General Partner and the Project Partnership, as the case
may be, has good and marketable title to, and is in peaceable possession
of, all properties and assets of the Company, the General Partner and the
Project Partnership, respectively, shown on the most recent balance sheet
of each of the Company, the General Partner and the Project Partnership, as
the case may be, free and clear of any material liens, claims or
encumbrances, except those granted by the Project Partnership, the Company
and the Project Partnership pursuant to the Financing Documents.
(d) Tax Matters. Each of the KES Entities, the Company, the General
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Partner and the Project Partnership has filed all federal, state and local
tax returns it is required to file, has paid any tax it is required to pay
to the extent due (other than any tax it is contesting in good faith and by
appropriate proceedings and with appropriate reserves therefore). Neither
KPR, the Company, the General Partner nor the Project Partnership has
taken any action to affect in a material adverse manner the Grant of
Industrial Tax Exemption (Case No. 95-8-1-6) and its amendment (Case Xx.
XX-00-0 (00-0-0-0)X xxx Xxxx Xx. XX-00-0(00-0-0-0)X) by the government of
Puerto Rico. On November 25, 1998, the Project Partnership filed a Petition
for Conversion to the Tax Incentives Act of 1998 (Case No. 95-8-I-6) (the
"Project Partnership's Tax Petition").
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(e) Conduct of Business. The Company, the General Partner and the
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Project Partnership have conducted no business other than their activities
with respect to the Project. The Company, the General Partner and the
Project Partnership have no subsidiaries except as set forth in this
Agreement.
(f) Qualifying Facility Status. Without regard to the ownership
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criteria set forth in 18 C.F.R. Section 292.206, the Project is designed
to meet all requirements applicable to qualifying cogeneration facilities
pursuant to 18 C.F.R. Section 292.203(b). The Federal Energy Regulatory
Commission on November 1, 1996, in Docket No. QF 00-000-000, found the
project to be a qualifying facility pursuant to its regulations. A Notice
of self-recertification was filed by the Project Partnership on December
15, 1997, in
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Docket No. QF 00-000-000. Following the consummation of the transactions
pursuant to this Agreement, the Project will no longer qualify to be a
qualifying facility due solely to the change in ownership. Other than the
consummation of the transaction pursuant to this Agreement, there is no
action threatened or pending in respect of the qualifying facility status
of the Project and there have been no other changes that would affect the
qualifying facility status of the Project.
(g) Foreign Utility Company Status. The Project Partnership is a
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"foreign utility company" within the meaning to Section 33(a) of the Public
Utilities Holding Company Act of 1935, as amended by the Energy Policy Act
of 1992 ("PUHCA"), and is therefore not a public utility company (which
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include both electric and gas utility companies) under Section 2(a)(5) of
PUHCA. Pursuant to Section 33(a)(3) of PUHCA, a notice of foreign utility
company status was filed on December 15, 1997, with the Securities and
Exchange Commission. There is no action threatened or pending in respect of
the status of the Project Partnership as a foreign utility company under
PUHCA.
(h) Securities Act. Based in part on the representations and
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warranties of Buyer set forth in Section 5.9 hereof, the transfer by KPR to
Buyer of the Interest is exempt from the registration requirements of the
Securities Act of 1933, as amended from time to time, and neither KPR nor
any Affiliate of KPR has taken any action with respect to the Interest,
which would adversely effect the exemption of the sale of the Interest
pursuant hereto from such registration requirements.
(i) Employees and Employee Benefits. Neither the Company, the General
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Partner nor the Project Partnership has ever maintained or contributed to,
nor has the Company, the General Partner or the Project Partnership ever
been required to contribute to, any "employee welfare benefit plan" (as
defined in Section 3(1) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), any "employee pension benefit plan" (as
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defined in Section 3(2) of ERISA), or any foreign pension benefit plan,
which provides or results in the type of benefits described in section 3(1)
or 3(2) of ERISA. Neither the Company, the General Partner nor the Project
Partnership has any ERISA Affiliates (as defined in Section 3(9) of ERISA).
4.16. LIMITATIONS ON REPRESENTATIONS AND WARRANTIES. KPR is selling
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to Buyer and Buyer is buying from KPR the Interest, and thereby its indirect
interest in the Project Partnership and the Project, KES is assigning to
Assignee and Assignee taking in assignment from KES, the Project Note and KBI is
assigning to Buyer and Buyer is taking in assignment from KBI, the
Administrative Services Agreement, (together with the Interest and the Project
-11-
Note, the "Purchased Assets"), each on a "AS IS" and "WITH ALL FAULTS" basis,
--------- ------
except as expressly set forth herein. The Buyer Parties hereby acknowledge that
OTHER THAN THOSE SPECIFIC REPRESENTATIONS AND WARRANTIES MADE IN THIS SECTION 4,
THE KES ENTITIES HAVE NOT MADE, DO NOT MAKE, AND HEREBY DISCLAIM ANY
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH
PURCHASED ASSETS INCLUDING, BUT NOT LIMITED TO, THE DESIGN, CAPACITY, CONDITION,
MERCHANTABILITY, OR FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE, OF ANY
PORTION OF THE PURCHASED ASSETS, INCLUDING WITHOUT LIMITATION, THE INTEREST AND
THE INDIRECT INTEREST IN THE PROJECT PARTNERSHIP AND/OR THE PROJECT. The Buyer
Parties further acknowledge that the KES Entities are not, except to the extent
of representation and warranties set forth in this Section 4, responsible for
compliance with requirements of any laws, ordinances, governmental rules or
regulations including, but not limited to, laws with respect to environmental
matters, patent, trademark, copyright or trade secret infringement, or for any
direct, indirect, incidental, punitive, consequential or other damages arising
out of the ownership, use of or inability to use the Purchased Assets, including
any portion of the Interest or the indirect interest in the Project Partnership
or the Project.
5. REPRESENTATIONS AND WARRANTIES OF BUYER. Each of the Buyer Parties
---------------------------------------
represent and warrant to the KES Entities as follows:
5.1. ORGANIZATION; AUTHORITY. Buyer is a Cayman Islands exempted
------------- ---------
company limited by shares, duly organized, validly existing and in good standing
under the laws of the Cayman Islands. Assignee is a corporation duly organized,
validly existing and in good standing under the laws of the State of California.
Buyer and Assignee each has all requisite power and authority under its charter
or other organization documents as applicable and applicable laws to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and to perform all its agreements and obligations under this Agreement in
accordance with its terms, and to purchase the Interest and take assignment of
the Administrative Services Agreement and the Project Note from the KES
Entities.
5.2. CORPORATE APPROVAL; BINDING EFFECT. Each of the Buyer Parties
--------- --------- ------- ------
has obtained all necessary authorizations and approvals required for the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Buyer Party and constitutes the legal, valid and binding
obligation of such Buyer Party, enforceable against such Buyer Party in
accordance with its terms, except to the extent such enforceability is subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or
-12-
other law affecting or relating to creditors' rights generally and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3. NON-CONTRAVENTION. Neither the execution and delivery of this
-----------------
Agreement by such Buyer Party nor the consummation by such Buyer Party of the
transactions contemplated hereby will constitute a violation of, or be in
conflict with, constitute or create a default under, or result in the creation
or imposition of any liens upon any property of such Buyer Party pursuant to (a)
the charter documents or by-laws or other organization documents of such Buyer
Party, each as amended to date; (b)any agreement or commitment to which such
Buyer Party is a party or by which such Buyer Party or any of its properties is
bound or to which such Buyer Party or any of its properties is subject; or (c)
any statute or any judgment, decree, order, regulation or rule of any court or
other Governmental Person relating to Buyer.
5.4. GOVERNMENTAL CONSENTS. No consent, approval or authorization of,
------------ --------
or registration, designation, declaration or filing with, any Governmental
Person is required for the execution and delivery of this Agreement by such
Buyer Party or for the consummation by such Buyer Party of the transactions
contemplated hereby, other than those already obtained on or prior to Closing.
5.5. BROKERS. Such Buyer Party has not retained, utilized or been
-------
represented by any broker or finder in connection with the transactions
contemplated by this Agreement. No broker's, finder's or financial advisor's
fees or commissions are or will become payable by any KES Entity arising out of
any action, or omissions to act on the part of such Buyer Party in connection
with the transactions contemplated hereby.
5.6. NO FINANCING. The Buyer Parties have adequate funds at their
-- ---------
disposal to finance the Purchase Price on the Closing Date. The consummation of
the purchase described in this Agreement is not subject to the Buyer Parties'
ability to obtain financing.
5.7. INVESTMENT COMPANY ACT. Neither the Buyer nor Assignee is an
---------- ------- ---
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
5.8. DUE DILIGENCE REVIEW. Each of the Buyer Parties acknowledges and
--- --------- ------
agrees that, except for the representations and warranties of the KES Entities
contained in Section 4 hereof, it is purchasing the Interest and taking
assignment of the Administrative Services Agreement and the Project Note on an
AS IS/WHERE IS basis. Each of the Buyer Parties further acknowledges and agrees
that upon consummation of the transactions contemplated hereby, it
-13-
will have no further recourse against the KES Entities or KES's Parent with
respect to the Interest, the Administrative Services Agreement or the Project
Note, except in connection with any breach of such representations and
warranties as contemplated by Section 4.16. The Buyer Parties are sophisticated
and knowledgeable with respect to independent power projects and related matters
and have performed their own independent investigation, with due diligence,
assisted by legal counsel and other professionals, of the investment represented
by the sale of the Interest, the Administrative Services Agreement and the
Project Note and have formed their own independent assessment of the risks and
potential returns of the Interest, the Administrative Services Agreement and the
Project Note. The Buyer Parties acknowledge that they have completed to their
satisfaction their own due diligence investigation with respect to the KES
Entities, the Interest, the Project Note and the Administrative Services
Agreement. The Buyer Parties, except as to any representation expressly set
forth in a closing document, are not relying, to any extent, on any
representation or statement of any KES Entity or KES's Parent.
5.9. NO REGISTRATION; INVESTMENT REPRESENTATION; ACCREDITED INVESTOR;
-- ------------- ---------- --------------- ---------- ---------
SOPHISTICATED PERSON. The Buyer Parties acknowledge that the Interest has not
------------- ------
been registered under any federal, state or local securities laws, and may not
be resold unless permitted under applicable exemptions contained in such
securities laws or upon satisfaction of the registration or qualification
requirements of such securities laws (nor does KPR have any obligation to
effect any such registration). The Buyer Parties will refrain from acquiring,
transferring or otherwise disposing of the Interest or any interest therein, in
such manner as to violate any registration requirements of any applicable
federal, state or local securities laws, and the rules and regulations
promulgated thereunder regulating the disposition thereof. Buyer is acquiring
the Interest for its own account for investment purposes only, and not with a
view to, or for sale in connection with, any distribution or public offering
thereof or any portion thereof. The Buyer Parties have extensive financial
experience with investments such as the investment contemplated by this
Agreement and therefore have the ability to protect their own interests in
connection with this Agreement. The Buyer is a "Sophisticated Person" as defined
in the Credit Agreement.
5.10. EMPLOYEE BENEFITS PLAN. The Buyer Parties are buying the
----------------------
Interest, the Administrative Services Agreement and the Project Note with their
general assets. No funds used to acquire the Interest, the Administrative
Services Agreement or the Project Note will be furnished directly or indirectly
out of the assets of or in connection with any Employee Benefit Plan.
5.11. STATUS AS AN "ELECTRIC UTILITY". Each Buyer Party is a
------ -- -- ------------------
subsidiary of an electric utility holding company exempt under Section 3(a)(1)
of PUHCA.
-14-
5.12. COMPLIANCE WITH CONFIDENTIALITY AGREEMENT. The Buyer Parties
---------- ---- --------------- ---------
have complied with all the terms and conditions of that certain Confidentiality
Agreement, by and between KES and Assignee, and attached hereto as Exhibit B
------- -
(the "Confidentiality Agreement").
--------------- ---------
6. INTENTIONALLY OMITTED.
--------------------
7. CONDITIONS PRECEDENT TO BUYER PARTIES' OBLIGATIONS. The obligation of
--------------------------------------------------
the Buyer Parties to consummate the Closing shall be subject to the satisfaction
at the Closing of each of the following conditions:
7.1. REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
--------------- --- ---------- ---- -- -------
representations and warranties made by the KES Entities in or pursuant to this
Agreement shall be true and correct in all material respects at and as of the
Closing Date.
7.2. COMPLIANCE WITH AGREEMENT. The KES Entities shall have performed
---------- ---- ---------
and complied in all material respects with all of their obligations under this
Agreement to be performed or complied with by the KES Entities on or prior to
the Closing Date.
7.3. OFFICER'S CERTIFICATE. The KES Entities shall have delivered to
--------- -----------
the Buyer Parties in writing, at and as of the Closing, a certificate, in form
and substance satisfactory to the Buyer Parties, certifying that the conditions
in each of Sections 7.1 and 7.2 hereof have been satisfied.
7.4. RESOLUTION OF THE QF ISSUE. As of the Closing Date, KES and
---------- -- --- -- -----
Assignee shall have entered into that certain Waiver Agreement with the Puerto
Rico Electric Power Authority ("PREPA"), EcoElectrica, L.P., and Enron
-----
Development Corp., substantially in the form of Exhibit C hereto (the "Waiver
------- - ------
Agreement").
---------
7.5. CONSENTS. The Buyer Parties shall have received copies of any
--------
and all consents set forth on Schedule 7.5, which shall be in full force and
effect.
7.6. SUITS AND PROCEEDINGS. There shall not be pending or threatened
----- --- -----------
against the Buyer Parties, any KES Entity, the Company, the General Partner or
the Project Partnership, any suit, action, proceeding or investigation seeking
to challenge, enjoin, delay or set aside any of the transactions contemplated
hereby.
7.7. NO MATERIAL ADVERSE CHANGE. Between July 31, 1998, and the
-- -------- ------- ------
Closing Date, there shall be no change in the business or the assets of the
Company, the General Partner, any KES Entity, or the Project Partnership,
-15-
including any Unfavorable Decision (as defined in the Credit Agreement), which
either individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.
7.8. RESIGNATIONS OF DIRECTORS AND OFFICERS. Except as set forth on
------------ -- --------- --- --------
Schedule 7.8 hereto, all the directors, officers and authorized signatories
appointed by KPR to the Company, the General Partner and the Project
Partnership shall have resigned their positions with the Company, the General
Partner or the Project Partnership on or prior to the Closing Date, and all
necessary notices shall have been given pursuant to the Shareholders Agreement
and the Articles of Association and other organizational documents of the
Company, the General Partner and the Project Partnership, as applicable,
substituting representatives of the Buyer Parties on the Board of Directors
pursuant to the Shareholders Agreement and the Articles of Association of the
Company, the General Partner and the Project Partnership as applicable.
7.9. RELEASES. The KES Entities shall have provided to the Buyer
--------
Parties at Closing executed releases of all liens held by Lyon Credit
Corporation and by each Person party to the employment contracts listed on
Schedule 4.6 a Satisfaction and Discharge from the Bank of New York, as
Indenture Trustee and representative of bondholders of KES's Parent evidencing
satisfaction and discharge of claims by the bondholders, a receipt or other
appropriate documentation acknowledging receipt of funds by the bankruptcy
trustee in respect of the KENETECH Windpower Inc. estate in the full amount of
KES's Settlement Obligation as defined in the Settlement Agreement in form and
substance reasonably satisfactory to the Buyer Parties.
7.10. AFFIDAVIT. An affidavit of Xxxxxxx X. Xxxxxxx in form and
---------
substance acceptable to the Buyer Parties addressing certain issues concerning
the transactions contemplated under this Agreement shall be signed.
7.11. FIELDSTONE FAIRNESS OPINION. Fieldstone Private Capital Group,
---------- -------- -------
L.P., financial advisor to KES, shall have delivered to the Buyer Parties a
written opinion, addressed to the Buyer Parties and dated the Closing Date,
addressing the fairness of the terms and conditions of the transactions
contemplated under this Agreement.
7.12. KPMG COMFORT LETTER. KMPG, auditors of KES's Parent shall have
---- ------- ------
delivered to the Buyer Parties a comfort letter dated as of the Closing Date and
covering all information included in KES's Parent's Form 10-Q filed with the
Securities and Exchange Commission for the quarter ended September 30, 1998,
including a bring down of such information as of the Closing Date, which shall
identify any material changes in the financial condition of KES's Parent
subsequent to September 30, 1998.
-16-
7.13. NOTICES UNDER THE CREDIT AGREEMENT. The Project Partnership
------- ----- --- ------ ---------
shall provide a copy to the Buyer Parties of the acknowledgment of receipt by
the Administrative Agent of the draft PREPA Waiver Agreement including an
acknowledgment that no further action under the Credit Agreement is required by
the Project Partnership in respect of executing the PREPA Waiver Agreement,
other than the delivery of a certified copy of the same promptly after the
execution and delivery thereof.
7.14. OPINION OF COUNSEL. (a) Xxxxxxx Xxxx LLP, special counsel the
------- -- -------
KES Entities, shall have delivered to the Buyer Parties a written opinion,
addressed to Buyer and dated the Closing Date, covering the matters referred to
in Sections 4.1, 4.2, 4.3(a), Section 4.3(c) hereof relating to the Settlement
Agreement and 4.10 with respect to KES and KBI; (b)Xxxxxxx, Xxxxxxxx & Xxxxx,
special counsel to KPR in Bermuda and Xxxxxx, Westwood & Riegels, special
counsel to the KES Entities in the British Virgin Islands ("HWR"), shall have
each delivered to the Buyer Parties an opinion, addressed to Buyer Parties and
dated the Closing Date, having the matters referenced in 4.1, 4.2, 4.3(a) and
4.10 with respect to KPR; and (c) Xxxxxxxx Xxxxxx and Finger, special Delaware
counsel to KES's Parent, shall have delivered to the Buyer Parties a written
opinion, addressed to the Buyer Parties and dated the Closing Date, covering
certain issues identified by the Parties to the KES Entities, including but not
limited to due authorization by KES's Parent of the transactions contemplated by
this Agreement and the corporate separateness of KES's Parent and the KES
Entities (other than KPR).
7.15. CERTIFICATE, DOCUMENTS. The Buyer Parties shall have received
------------ ---------
such other certificates and documents as may be reasonably requested by it with
respect to the foregoing matters.
8. CONDITIONS PRECEDENT TO KES ENTITY OBLIGATIONS. The obligation of the
----------------------------------------------
KES Entities to consummate the Closing shall be subject to the satisfaction, at
the Closing, of each of the following conditions:
8.1. REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
--------------- --- ---------- ---- -- -------
representations and warranties made by the Buyer Parties in this Agreement shall
be true and correct in all material respects at and as of the Closing Date.
8.2. COMPLIANCE WITH AGREEMENT. Each of the Buyer Parties shall have
---------- ---- ---------
performed and complied in all material respects with all of its obligations
under this Agreement that are to be performed or complied with by it at or prior
to the Closing.
8.3. OFFICER'S CERTIFICATE. The Buyer Parties shall have delivered
--------- -----------
to the KES Entities in writing, at and as of the Closing, a certificate, in form
and
-17-
substance satisfactory to the KES Entities, to the effect that the conditions in
each of Sections 8.1 and 8.2 hereof have been satisfied.
8.4. OPINION OF COUNSEL. Hunton & Xxxxxxxx, counsel to Buyer Parties,
------- -- -------
shall have delivered to the KES Entities a written opinion, addressed to the KES
Entities and dated the Closing Date, covering the matters referred to in
Sections 5.1, 5.2 and 5.3. X.X. Xxxxxx & Company, special counsel to the Buyer
in the Cayman Islands, shall have delivered to the KES Entities a written
opinion, addressed to the KES Entities and dated the Closing Date, covering the
matters referenced to in Sections 5.1, 5.2 and 5.3 with respect to the Buyer.
8.5. ASSUMPTION OF CERTAIN OBLIGATIONS. Buyer shall have executed
---------- -- ------- -----------
and/or delivered the documentation required in Section 3.2(b) and the cash
collateral pledged by KES to secure its obligation to Union Bank of California,
shall have been released by Union Bank of California to KES.
8.6. CERTIFICATES, DOCUMENTS. The KES Entities shall have received
------------- ---------
such other certificates and documents as may be reasonably requested by them
with respect to the foregoing material.
9. CONFIDENTIAL INFORMATION. The KES Entities and the Buyer Parties agree
------------------------
that the Confidentiality Agreement shall remain in full force and effect for the
duration thereof, and that the parties hereto shall be governed by its terms and
conditions, which are hereby incorporated into this Agreement by reference.
10. HSR ACT. Each of the Buyer Parties and the KES Entities acknowledge
-------
that they have filed with the United States Department of Justice and the United
States Federal Trade Commission the Notification and Report Form required to be
filed under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
(the "HSR Act"), concerning the transactions contemplated hereby, and that the
-------
waiting period for such filing specified in the HSR Act has expired.
11. POST CLOSING TAX INCENTIVE. Within five (5) business days of receipt
--------------------------
by the Company of notice of final approval not subject to appeal by the
Government of Puerto Rico of the Project Partnership's Tax Petition referred to
in Section 4.15(d), the Buyer Parties shall remit to KES by wire transfer to
Sanwa Bank California, San Francisco, CA to ABA #000000000, for the account of
KENETECH Energy Systems, Inc., Account No. 0668-26065, a payment in an amount
equal to $5,000,000.
12. RELEASE. In consideration of the Purchased Assets, and for other
-------
valuable consideration, the receipt of which is hereby acknowledged, each of the
Buyer Parties, for itself and on behalf of its successors and assigns, hereby
-18-
releases and discharges the KES Entities and KES's Parent, their past and
present partners, heirs, assigns, successors, officers, directors, agents,
employees and affiliates of and from any and all actions, causes of actions,
claims, demands, damages, liabilities, costs or expenses of any kind arising
from the beginning of time to the date hereof in connection with the KES
Entities, KES's Parent, the Company, the General Partner, the Project
Partnership and/or the Project, except to the extent any liability for breach of
representations and warranties set forth in Section 4 to the extent set forth in
Section 4.13.
13. GENERAL.
-------
13.1. EXPENSES. All expenses of the preparation, execution and
--------
consummation of this Agreement and of the transactions contemplated hereby,
including, without limitation, attorneys', accountants' and outside advisers'
fees and disbursements, shall be borne by (a) the Buyer Parties, if incurred for
the Buyer Parties' account or (b) the KES Entities, if incurred for the account
of the KES Entities or any of the KES Entities. Notwithstanding the foregoing,
all commissions, fees and expenses of Fieldstone Private Capital Group, L.P.
shall be paid by the KES Entities, except for those incurred by the Buyer
Parties at their request, which shall be paid by the Buyer Parties.
13.2. NOTICES. All notices, demands and other communications
-------
hereunder shall be in writing or by written telecommunication, and shall be
deemed to have been duly given if delivered personally or by overnight courier
or if mailed by certified mail, return receipt requested, postage prepaid, or
sent by written telecommunication, as follows:
If to the KES Entities, to: KENETECH Energy Systems, Inc.
0000 X. Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx, Vice President
---------
Xxxxx Xxxxxx, Vice President
with copies sent contemporaneously to:
KENETECH Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
---------
Vice President and
Chief Financial Officer
-19-
and to: Xxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Assignee, to: Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
---------
Regional Vice President
If to Buyer, to: EME del Caribe
c/o X.X. Xxxxxx & Company
X.X. Xxx 000XX
Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Attn: Xxxxxxx X. Xxxxxxxx, Director
with a copy sent contemporaneously to:
Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxx, Esq.
Director, Legal Department Americas
Xxxxx X. Xxxxxxxx, Esq.
Hunton & Xxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
-20-
13.3. ENTIRE AGREEMENT. This Agreement, together with the
------ ---------
Confidentiality Agreement, incorporated herein by reference and the Assignment
and Assumption Agreements, entered into contemporaneously herewith, contain the
entire understanding of the parties, supersede all prior agreements and
understandings relating to the subject matter hereof and shall not be amended
except by a written instrument hereafter signed by all of the parties hereto. If
the terms of this Agreement shall conflict with any of those of the Assignment
and Assumption Agreements, this Agreement shall govern.
13.4. GOVERNING LAW; CONSENT TO JURISDICTION.
--------- ---- ------- -- ------------
(a) The validity and construction of this Agreement shall be governed
by the internal laws (and not the choice-of-law rules other than Section 5-
1401 of the New York General Obligations Law) of the State of New York.
(B) THE PARTIES AGREE THAT ANY SUIT BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE KES
ENTITIES AND BUYER PARTIES AND EITHER PARTY'S SUCCESSORS AND ASSIGNS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE FEDERAL COURT OF THE
SOUTHERN DISTRICT OF NEW YORK AND CONSENT TO THE NON-EXCLUSIVE JURISDICTION
OF SUCH COURT AND TO SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON
EITHER PARTY BY MAIL IN THE MANNER SPECIFIED IN SECTION 13.2 HEREOF. EACH
OF BUYER PARTIES AND THE KES ENTITIES HEREBY WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT
OR THAT SUCH SUIT WAS BROUGHT IN AN INCONVENIENT FORUM.
13.5. SECTIONS AND SECTION HEADINGS. All enumerated subdivisions of
-------- --- ------- --------
this Agreement are herein referred to as "Section" or "subsection." The headings
of Sections and subsections are for reference only and shall not limit or
control the meaning thereof.
13.6. ASSIGNS. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Neither this Agreement nor the obligations of any party
hereunder shall be assignable or transferable by such party without the prior
written consent of the other parties hereto, except that either of the Buyer
Parties may assign or transfer its rights hereunder to one or more Affiliates,
without the prior written consent of the KES Entities. Such transfer shall not
relieve either of the Buyer Parties of any of its obligations hereunder.
13.7. FURTHER ASSURANCES. The KES Entities and Buyer Parties shall
------- ----------
execute and deliver to all appropriate other parties such other instruments as
may be reasonably required in connection with the performance of this
-21-
Agreement and each shall take all such further actions as may be reasonably
required to carry out the transactions contemplated by this Agreement.
13.8. NO IMPLIED RIGHTS OR REMEDIES. Except as otherwise expressly
-- ------- ------ -- --------
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any person, firm or corporation, other than
the KES Entities and the Buyer Parties and their respective shareholders, any
rights or remedies under or by reason of this Agreement.
13.9. KNOWLEDGE. Whenever the phrase "to the knowledge of the
---------
KES Entities" or another similar qualification is used herein, the relevant
knowledge is limited solely to the actual knowledge the officers and directors
of the KES Entities, without imputing to the KES Entities any knowledge of any
other Person.
13.10. COUNTERPARTS. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.11. SATISFACTION OF CONDITIONS PRECEDENT. The KES Entities and
------------ -- ---------- ---------
Buyer Parties will each use their best efforts to cause the satisfaction of the
conditions precedent contained in this Agreement; provided, however, that
--------- -------
nothing contained in this Section 14.11 shall obligate any party hereto to waive
any right or condition under this Agreement.
13.12. TIME IS OF THE ESSENCE AND BEST EFFORTS. With regard to all
---- -- -- --- ------- --- ---- -------
dates and time periods set forth or referred to in this Agreement, time is of
the essence.
13.13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
-------- -- --------------- --- ----------
and warranties contained herein shall survive the execution and delivery of this
Agreement and the Closing, regardless of any investigation made by or on behalf
of any party hereto; provided, however, that all representations and warranties
--------- -------
(and any claim for indemnification made in respect thereof) shall expire and be
of no further force and effect from and after the date six (6) months following
the Closing except to the extent a claim is made in good faith by the aggrieved
party against the other party with respect thereto prior to the expiration of
such 6 month period. If, under any applicable federal or state bankruptcy,
insolvency, reorganization or other laws relating to creditors' rights
generally, any of the transfers contemplated by Section 3.2(a) or the payment
contemplated by Section 3.2(d) is avoided or invalidated within six (6) years of
the Closing, Buyer Parties shall have a claim for damages to the extent of any
such avoidance or invalidation; and any claim for damages they may have as a
result of such avoidance or invalidation shall be expressly preserved.
-23-
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed and delivered by their
respective duly authorized officers as of the date and year first above written.
SELLER:
KES PUERTO RICO L.P.
By: KES LNG, Ltd.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
KENETECH ENERGY SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
KES BERMUDA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BUYER PARTIES:
EME DEL CARIBE
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
-24-
EDISON MISSION ENERGY
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice-President
SCHEDULE 4.5
------------
PROCEEDINGS
-----------
1. Settlement Agreement - KENETECH Energy Systems, Inc.
SCHEDULE 4.6
------------
MATERIAL LIABILITIES
--------------------
1. Employment Contracts for:
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxxxxxxx Xxxx
SCHEDULE 7.5
------------
REQUIRED CONSENTS
-----------------
1. Filing with Office of Industrial Tax Exemption of Puerto Rico, request
for approval of Transfer.
2. Puerto Rico Electric Power Authority waiver of requirement under Power
Purchase Agreement that Project maintain Qualifying Facility status by
entry into a Waiver Agreement, substantially in the form of Exhibit C.
------- -
SCHEDULE 7.8
------------
RESIGNATION OF DIRECTORS,
-------------------------
OFFICERS AND AUTHORIZED SIGNATORIES
-----------------------------------
The following individuals shall resign as of the Closing Date:
1. Company:
-------
A. Directors: Xxxxxxx X. Xxxxxxx, Director
Xxxxx X. Xxxxxx, Director
B. Officers: Xxxxxxx X. Xxxxxxx, Assistant Secretary
Xxxxx X. Xxxxxx, Assistant Secretary
C. Authorized Signatory:
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxx El Xxxxx
2. General Partner: EcoElectrica, Ltd.
---------------
A. Directors: Xxxxxxx X. Xxxxxxx, Director
Xxxxx X. Xxxxxx, Director
B. Officers: Xxxxxxx X. Xxxxxxx, Assistant Secretary
Xxxxx X. Xxxxxx, Assistant Secretary
C. Authorized Signatory:
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxx El Xxxxx
3. Project Partnership: None
-------------------
Exhibit C
---------
FORM OF WAIVER AGREEMENT
------------------------
(form to be attached)
EXHIBIT A-1
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Shareholders Agreement)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is dated as of
---------
the 23rd day of December, 1998, by and between KES Puerto Rico, L.P., a Bermuda
exempted limited partnership ("Assignor") and EME del Caribe, a Cayman Islands
--------
company limited by shares ("Assignee").
--------
WHEREAS, Assignor owns a fifty percent (50%) interest in EcoElectrica
Holdings, Ltd., a Cayman Islands company limited by shares (the "Company"), in
-------
the form of the issued and outstanding Class B Shares of the Company (the
"Interest");
--------
WHEREAS, the Company directly owns a one hundred percent (100%) interest in
EcoElectrica, Ltd., a Cayman Islands company limited by shares (the "General
-------
Partner"), and owns a ninety-nine percent (99%) interest in EcoElectrica, L.P.,
-------
a Bermuda exempted limited partnership (the "Project Partnership"), which was
------- -----------
formed to develop, design, finance, construct, own and operate an approximately
540 megawatt (net) natural gas-fired cogeneration facility, liquefied natural
gas import terminal, a desalination facility and certain other auxiliary and
related assets (collectively, the "Project"); the General Partner owns a one
-------
percent (1%) interest in the Project Partnership;
WHEREAS, in order to set forth an understanding regarding certain elements
of the relationships involving the Company, the Project Partnership and the
General Partner, Assignor entered into that certain Shareholders Agreement,
dated as of December 10, 1997, by and among Assignor, the Company and Buenergia
Gas & Power, Ltd., a Cayman Islands company limited by shares ("BGP") (the
"Shareholders Agreement");
------------ ---------
WHEREAS, in connection with that certain Stock Purchase and Assignment
Agreement, dated as of the date hereof, by and between KENETECH Energy Systems,
Inc., a Delaware corporation ("KES"), KES Bermuda, Inc., a Delaware
---
corporation, Edison Mission Energy, a California corporation, Assignee and
Assignor (the "Stock Purchase Agreement"), Assignee is taking in assignment from
----- -------- ---------
Assignor, all of Assignor's rights, title and interest in and obligations under
the Shareholders Agreement, upon the terms and subject to the conditions
contained in the Stock Purchase Agreement (defined terms used herein without
definition shall have the meaning given thereto in the Stock Purchase
Agreement).
NOW, THEREFORE, in consideration of the premises herein contained and of
other good and valuable consideration, and intending legally to be bound
thereby, the parties hereby agree as follows:
-2-
1. Assignment Assumption and Substitution of Rights and Obligations;
---------- ---------- --- ------------ -- ------ --- -----------
Closing. Assignor hereby sells, transfers and conveys, assigns absolutely to
-------
Assignee, its successor and assigns, and Assignee hereby purchases and accepts
from Assignor, all of Assignor's right, title and interest, in, to, and under
the Shareholders Agreement, together with all rights, benefits and privileges of
Assignor thereunder, to Assignee in accordance with the Stock Purchase Agreement
all upon the terms and conditions set forth herein and in the Stock Purchase
Agreement. The Assignee hereby expressly, succeeds to, and is substituted for,
and may exercise every right and power, and expressly assumes and is liable for
every duty and obligation of Assignor and agrees to perform and fulfill all
terms, conditions and obligations of Assignor related to the Shareholders
Agreement arising from and after the date hereof. Assignee agrees to be bound by
the Shareholders Agreement from and after the date hereof. Assignee, however,
does not assume any obligation or liability of Assignor for payment of any
amount due and payable under the Shareholders Agreement, arising prior to the
date hereof. The consummation of the sale and assignment transactions
contemplated hereby shall be effected as of the date hereof (the "Closing"). The
-------
sale, transfer and assignment of the Shareholders Agreement hereunder is and
shall be without recourse, representation or warranty of any kind whatsoever,
except as contained in Section 4 of the Stock Purchase Agreement.
2. Withdrawal of Assignor. Contemporaneously with the execution of this
----------------------
Agreement, Assignor will execute all documents necessary to withdraw from the
Project Partnership as contemplated under the Stock Purchase Agreement.
3. Execution of Supplemental Signature Page. Assignee shall execute a
--------- -- ------------ --------- ----
supplemental signature page in the form of Exhibit A hereto.
------- -
4. Governing Law; CONSENT TO JURISDICTION.
---- ------- -- ------------
(a) The validity and construction of this Agreement shall be governed
by the internal laws (and not the choice-of-law rules other than Section 5-
1401 of the New York General Obligations Law) of the State of New York.
(b) THE PARTIES AGREE THAT ANY SUIT BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ASSIGNOR AND
ASSIGNEE AND EITHER PARTY'S SUCCESSORS AND ASSIGNS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR THE FEDERAL COURT OF THE SOUTHERN
DISTRICT OF NEW YORK AND CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF SUCH
COURT AND TO SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON EITHER
PARTY BY MAIL IN THE MANNER SPECIFIED IN SECTION 13.2 OF THE STOCK PURCHASE
AGREEMENT. EACH OF ASSIGNEE AND ASSIGNOR HEREBY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT WAS BROUGHT IN AN INCONVENIENT FORUM.
-3-
5. Entire Agreement. This Agreement, together with the other documents
------ ---------
delivered in connection with the Closing, including the Stock Purchase
Agreement, set forth the entire agreement and understanding of the parties
hereto, and supersede all prior agreements and understandings between the
parties hereto with respect to the transactions contemplated hereby. This
Agreement shall be binding on, and inure to the benefit of, the parties hereto
and their successors and assigns.
6. Counterparts. This Agreement may be signed in counterparts, each of
------------
which shall be an original and both of which taken together shall constitute one
agreement.
7. Successors and Assigns. The terms of this Assignment shall be binding
---------- --- -------
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.
8. Headings. Section and title headings in this Agreement are for
--------
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-4-
IN WITNESS WHEREOF, the undersigned have duly executed this Assignment and
Assumption Agreement on the date above first written.
KES PUERTO RICO L.P.
By: KES LNG, Ltd.,
its General Partner
By:_____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
EME DEL CARIBE
By:_____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
EXHIBIT A
Supplemental Signature Page
------------ --------- ----
[form attached]
IN WITNESS WHEREOF, the undersigned has caused this Shareholders Agreement
to be duly executed and delivered by its officer thereunto duly authorized as of
this __th day of December, 1998.
EME DEL CARIBE
____________________________________
By:
Title:
Counterpart Signature Page to that certain
SHAREHOLDER'S AGREEMENT OF ECOELECTRICA
HOLDINGS, LTD., (the "Company") dated as of
December 10, 1997, by and among the Company,
KES Puerto Rico, L.P. (which company is
simultaneously withdrawing from this
agreement) and Buenergia Gas & Power, Ltd.
-2-
ACKNOWLEDGED AND AGREED TO:
COMPANY: ECOELECTRICA HOLDINGS LTD.,
a Cayman Islands company limited by shares
By: ______________________________________
Name: Xxxxx Xxxx
Director and
Class A Authorized Signatory
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Withdrawing Director and
Class B Authorized Signatory
SHAREHOLDERS: BUENERGIA GAS & POWER, LTD.
By: ______________________________________
Title: ______________________________________
Withdrawing Shareholder:
-----------------------
KES PUERTO RICO, L.P.
By: KES LNG, Ltd., its General Partner
By: ______________________________________
Title:______________________________________
-3-
ACKNOWLEDGED AND AGREED TO:
ECOELECTRICA LTD., a Cayman Islands company
limited by shares, for itself and in its
capacity as general partner of the Project
Partnership
By: __________________________________
Name: Xxxxx Xxxx
Director and Class A Authorized Signatory
By: __________________________________
Name: Xxxxx X. Xxxxxx
Withdrawing Director and
Class B Authorized Signatory
EXHIBIT A-2
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Project Note)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is dated as of
---------
the 23rd day of December, 1998, by and between KENETECH Energy Systems, Inc., a
Delaware corporation ("Assignor") and Edison Mission Energy, a California
--------
corporation ("Assignee").
--------
WHEREAS, KES is a party to the Financing and Development Services
Agreement, effective as of September 30, 1994 (the "Financing Agreement"), by
--------- ---------
and between Assignor and EcoElectrica, L.P., a Bermuda exempted limited
partnership (the "Obligor"), pursuant to which the Obligor executed and
-------
delivered that certain KESI Subordinated Promissory Note, dated December 15,
1997, in the original principal amount of $22,064,185.00 (the "Project Note",
------- ----
collectively with the Financing Agreement, the "Project Loan Documents");
------- ---- ---------
WHEREAS, in connection with that certain Stock Purchase and Assignment
Agreement, dated as of the date hereof, by and between Assignor, KES Bermuda,
Inc., a Delaware corporation, Assignee, EME del Caribe, a Cayman Islands
exempted company limited by shares and KES Puerto Rico, L.P., a Bermuda
exempted limited partnership (the "Stock Purchase Agreement"), Assignee is
----- -------- ---------
purchasing from Assignor all of the Assignor's right, title and interest in, to,
and under the Project Loan Documents (hereinafter referred to as the "Rights")
------
and taking in assignment from KES the Project Note upon the terms and subject
to the conditions contained in the Stock Purchase Agreement (defined terms used
herein without definition shall have the meaning given thereto in the Stock
Purchase Agreement).
NOW, THEREFORE, in consideration of the premises herein contained and of
other good and valuable consideration, and intending legally to be bound
thereby, the parties hereby agree as follows:
1. Assignment Assumption and Substitution of Rights and Obligations;
---------- ---------- --- ------------ -- ------ --- -----------
Closing. Assignor hereby sells, transfers, conveys and assigns absolutely to
-------
Assignee, and Assignee hereby purchases and accepts from Assignor, all of
Assignor's right, title and interest, in, to, and under the Rights as evidenced
by the Project Loan Documents, all upon the terms and conditions set forth
herein and in the Stock Purchase Agreement together with all rights, benefits
and privileges of Assignee thereunder. The Assignee hereby expressly succeeds
to, and is substituted for, and may exercise every right and power, and
expressly assumes and is liable for every duty and obligation of Assignor and
agrees to perform and fulfill all terms, conditions and obligations of Assignor
related to the Project Loan Documents arising from and after the effective date
hereof. Assignee, however, does not assume any obligation of any amount due and
payable prior to the date hereof. The consummation of the sale and assignment
transactions contemplated hereby shall be effected as of the date hereof (the
"Closing"). The sale, transfer and assignment of the Rights and the
-------
-2-
Project Loan Documents hereunder is and shall be without recourse,
representation or warranty of any kind whatsoever, except as contained in
Section 4 of the Stock Purchase Agreement.
2. Governing Law; CONSENT TO JURISDICTION.
--------- ---- ------- -- ------------
(a) The validity and construction of this Agreement shall be governed
by the internal laws (and not the choice-of-law rules, other than Section
5-1401 of the New York General Obligations Law) of the State of New York.
(b) THE PARTIES AGREE THAT ANY SUIT BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ASSIGNOR AND
ASSIGNEE AND EITHER PARTY'S SUCCESSORS AND ASSIGNS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR THE FEDERAL COURT OF THE SOUTHERN
DISTRICT OF NEW YORK AND CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF SUCH
COURT AND TO SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON EITHER
PARTY BY MAIL IN THE MANNER SPECIFIED IN SECTION 13.2 OF THE STOCK PURCHASE
AGREEMENT. EACH OF ASSIGNEE AND ASSIGNOR HEREBY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT WAS BROUGHT IN AN INCONVENIENT FORUM.
3. Entire Agreement. This Agreement, together with the other documents
------ ---------
delivered in connection with the Closing, including the Stock Purchase
Agreement, set forth the entire agreement and understanding of the parties
hereto, and supersede all prior agreements and understandings between the
parties hereto with respect to the transactions contemplated hereby. This
Agreement shall be binding on, and inure to the benefit of, the parties hereto
and their successors and assigns.
4. Counterparts. This Agreement may be signed in counterparts, each of
------------
which shall be an original and both of which taken together shall constitute one
agreement.
5. Successors and Assigns. The terms of this Assignment shall be binding
---------- --- -------
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.
6. Headings. Section and title headings in this Agreement are for
--------
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text.
-3-
IN WITNESS WHEREOF, the undersigned have duly executed this Assignment and
Assumption Agreement on the date above first written.
KENETECH ENERGY SYSTEMS, INC.
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
EDISON MISSION ENERGY
By:___________________________________
Name:______________________________
Title:_____________________________
EXHIBIT A-3
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Administrative Services Agreement)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is dated as of
---------
the 23rd day of December, 1998, by and between KES Bermuda, Inc., a Delaware
corporation ("Assignor") and EME del Caribe, a Cayman Islands company limited by
--------
shares ("Assignee").
--------
WHEREAS, Assignor is a party to the Administrative Services Agreement, by
and between Assignor and EcoElectrica, L.P., a Bermuda exempted limited
partnership (the "Obligor") dated as of October 31, 1997 (the "Administrative
------- --------------
Services Agreement"), by and between Assignor and the Obligor, pursuant to which
-------- ---------
Assignor receives a fee, plus expense reimbursement in return for providing
advisory services to the Obligor;
WHEREAS, in connection with that certain Stock Purchase and Assignment
Agreement, dated as of the date hereof, by and between KENETECH Energy Systems,
Inc., a Delaware corporation ("KES"), Assignor, Assignee, Edison Mission Energy,
a California corporation ("EME") and KES Puerto Rico, L.P., a Bermuda exempted
limited partnership ("KPR") (the "Stock Purchase Agreement"), Assignee is
--- ----- -------- ---------
taking in assignment from Assignor the Administrative Services Agreement, upon
the terms and subject to the conditions contained in the Stock Purchase
Agreement (defined terms used herein without definition shall have the meaning
given thereto in the Stock Purchase Agreement).
NOW, THEREFORE, in consideration of the premises herein contained and of
other good and valuable consideration, and intending legally to be bound
thereby, the parties hereby agree as follows:
1. Assignment Assumption and Substitution of Rights and Obligations;
---------- ---------- --- ------------ -- ------ --- -----------
Closing. Assignor hereby sells, transfers, conveys and assigns to Assignee, and
-------
Assignee hereby purchases and accepts from Assignor, all of Assignor's right,
title and interest, in, to, and under the Administrative Services Agreement. The
Assignee hereby expressly, succeeds to, and is substituted for, and may exercise
every right and power, and expressly assumes and is liable for every duty and
obligation of Assignor and agrees to perform and fulfill all terms, conditions
and obligations of Assignor related to the Administrative Services Agreement
arising from and after the date hereof. Assignee, however does not assume any
obligations of any amount due and payable related to the Administrative Services
Agreement, arising prior to the date hereof. The consummation of the sale and
assignment transactions contemplated hereby shall be effected as of the date
hereof.
-2-
2. Governing Law; CONSENT TO JURISDICTION.
--------- ---- ------- -- ------------
(a) The validity and construction of this Agreement shall be governed
by the internal laws (and not the choice-of-law rules other than Section 5-
1401 of the new York General Obligations Law) of the State of New York.
(b) THE PARTIES AGREE THAT ANY SUIT BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ASSIGNOR AND
ASSIGNEE AND EITHER PARTY'S SUCCESSORS AND ASSIGNS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR THE FEDERAL COURT OF THE SOUTHERN
DISTRICT OF NEW YORK AND CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF SUCH
COURT AND TO SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON EITHER
PARTY BY MAIL IN THE MANNER SPECIFIED IN SECTION 13.2 OF THE STOCK PURCHASE
AGREEMENT. EACH OF ASSIGNEE AND ASSIGNOR HEREBY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT WAS BROUGHT IN AN INCONVENIENT FORUM.
3. Entire Agreement. This Agreement, together with the other documents
------ ---------
delivered in connection with the Closing, including the Stock Purchase
Agreement, set forth the entire agreement and understanding of the parties
hereto, and supersede all prior agreements and understandings between the
parties hereto with respect to the transactions contemplated hereby. This
Agreement shall be binding on, and inure to the benefit of, the parties hereto
and their successors and assigns.
4. Counterparts. This Agreement may be signed in counterparts, each of
------------
which shall be an original and both of which taken together shall constitute one
agreement.
5. Successors and Assigns. The terms of this Assignment shall be binding
---------- --- -------
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.
6. Headings. Section and title headings in this Agreement are for
--------
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text.
-3-
IN WITNESS WHEREOF, the undersigned have duly executed this Assignment and
Assumption Agreement on the date above first written.
KES BERMUDA, INC.
By:________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
EME DEL CARIBE
By:________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
Exhibit B
[LETTERHEAD OF KENETECH APPEARS HERE]
CONFIDENTIALITY AGREEMENT
-------------------------
April __, 1998
Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Vice President
In connection with your consideration of a possible transaction
involving KENETECH Energy Systems, Inc., a Delaware corporation, and/or an
affiliate or subidiary thereof (collectively, the "Company"), you are being
furnished with confidential information regarding the Company and EcoElectrica,
L.P., a Bermuda limited partnership ("Eco"), and you may be furnished with
additional information by the Company or by its representatives or agents in
connection with such potential transaction.
As a condition to your being furnished with such information, you
agree to treat any information concerning the Company and Eco and their
affiliates which is furnished to you by or on behalf of the Company, whether
furnished before or after the date of this letter and regardless of the manner
in which it is furnished, together with analyses, compilations, studies or other
documents or records prepared by you or any of your directors, officers,
employees, agents or advisors (including, without limitation, attorneys,
accountants, consultants, bankers, financial advisors and any representatives of
your advisors) (collectively, "Representatives") to the extent that such
analysis, compilations, studies, documents or records contain or otherwise
reflect or are generated from such information (hereinafter collectively
referred to as the "Evaluation Material"), in accordance with the provisions of
this agreement. The Term "Evaluation Material" does not include information
which (i) was or becomes generally available to the public other than as a
result of a disclosure by you or your Representatives, (ii) was or becomes
available to you on a non-confidential basis from a source other than the
Company or its advisors provided that such source is not known to you to be
bound by a confidentiality agreement with the Company or otherwise prohibited
from transmitting the information to you by a contractual, legal or
-2-
fiduciary obligation or (iii) was within your possession prior to its being
furnished to you by or on behalf of the Company, provided that the source of
such information was not bound by a confidentiality agreement with the Company
or otherwise prohibited from transmitting the information to you by a
contractual, legal or fiduciary obligation.
You hereby agree that the Evaluation Material will be used solely for
the purpose of evaluating a possible transaction between the Company and you,
and that such information will be kept confidential by you and your
Representatives and you will not permit such information to be discussed,
furnished or disclosed to any person other than as provided herein; provided,
however, that any of such information may be disclosed to your Representatives
who need to know such information for the purpose of evaluating any such
possible transaction between the Company and you (it being understood that each
of such Representatives shall have been advised of and furnished a copy of this
agreement and shall have agreed to be bound by the provisions hereof).
Notwithstanding the foregoing, you hereby agree that you will not disclose any
of the Evaluation Material or otherwise consult with legal counsel or advisors
primarily based or located in Puerto Rico (other than with our express written
permission) until such time as you are notified by us in writing that you have
been included on a short list of bidders. You also agree not to disclose any of
the Evaluation Material to any counsel or other advisor unless such counsel or
other advisor has been approved by us in writing. In any event, you shall be
responsible for any breach of this agreement by any of your Representatives and
you agree, at your sole expense, to take all reasonable measures (including but
not limited to court proceedings) to restrain your Representatives from
prohibited or unauthorized disclosure or use of the Evaluation Material, and
agree that we may do likewise.
In addition, without the prior written consent of the Company, you
will not, and will direct your Representatives not to, disclose to any person
(i) that the Evaluation Material has been made available, to you or your
Representatives, (ii) that discussions or negotiations are taking place
concerning a possible transaction between the Company and you or (iii) any
terms, conditions, suggested price range or other facts with respect to any such
possible transaction, including the status thereof.
You agree not to arrange, participate in or conduct any meeting or
substantive discussions regarding the Company or Eco or any of the Evaluation
Material with representatives of the Puerto Rico Electric Power Authority or any
other Puerto Rican governmental agency or authority prior to being notified in
writing by us that you have been
-3-
included on a short list of bidders and to notify us of any such meeting or
substantive discussion so that we may have a representative present. You agree
not to disclose in any such meeting or discussions any of the Evaluation
Material. You agree not to arrange, participate in or conduct any meeting or
substantive discussions regarding the Company or Eco with representatives of
Enron Corp. or any of its affiliates or subsidiaries without our prior written
consent and you agree to notify us of the substance of any such meeting or
discussion.
You agree that you will not initiate discussions with any person other
than the Company relating to the purchase of any direct or indirect interest of
such person in EcoElectrica, L.P. until such time as either of us notifies the
other that it no longer desires to pursue a transaction. You agree that you will
not initiate discussions With Enron Corp. or any of its affiliates or
subsidiaries relating to the purchase of any of their respective direct or
indirect interest in EcoElectrica, L.P. until the earlier of June 30, 1999 or
the date on which we notify you in writing that the Company has sold its
interest in Eco.
In the event that you are requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or other process) to disclose any Evaluation Material, it
is agreed that you will provide the Company with prompt written notice of any
such request or requirement so that the Company may seek an appropriate
protective order or waive your compliance with the provisions of this agreement.
If, failing the entry of a protective order or the receipt of a waiver
hereunder, you are, in the opinion of your counsel, compelled to disclose.
Evaluation Material, you may disclose that portion of the Evaluation Material,
which the Company's counsel advises that you are compelled to disclose and will
exercise reasonable efforts to obtain assurance that confidential treatment will
be accorded to that portion of the Evaluation Material which is being disclosed
In any event, you will not oppose action by the Company to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the Evaluation Material.
You understand and acknowledge that any and all information contained
in the Evaluation Material is being provided without any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material on the part of the Company or the Advisor. You agree that
none of the Company, the Advisor or any of their respective affiliates or
representatives shall have any liability to you or any of your Representatives.
It is understood that the scope of any representations and warranties to be
given by the
-4-
Company will be negotiated along with other terms and conditions in arriving at
a mutually acceptable form of definitive agreement should discussions between
you and the Company progress to such a point.
In consideration of the Evaluation Material being furnished to you,
you hereby further agree that, without the prior written consent of the Board of
Directors of the Company, for a period of one year from the date hereof, neither
you nor any of your affiliates (as such term is defined in Rule 12b-2 of the
Securities and Exchange Act of 1934, as amended), acting alone or as part of a
group, will acquire or agree to acquire, directly or indirectly, by purchase or
otherwise, any voting securities or securities convertible into voting
securities of the Company, or otherwise seek to influence or control, in any
manner whatsoever (including proxy solicitation or otherwise), the management or
policies of the Company. All Evaluation Material disclosed by the Company shall
be and shall remain the property of the Company. In the event that the parties
do not proceed with the transaction which is the subject of this letter within
a reasonable time, or within five days after being so requested by the Company,
you shall return or destroy all documents thereof furnished to you by the
Company. Except to the extent a party is advised in writing by counsel that such
destruction is prohibited by law, you will also destroy all written material,
memoranda, notes, copies, excerpts and other writings or recordings whatsoever
prepared by you or your Representatives based upon, containing or otherwise
reflecting any Evaluation Material. Any destruction of materials shall be
verified by you in writing and signed by one of your officers. Any Evaluation
Material that is not returned or destroyed, including without limitation, any
oral Evaluation Material, shall remain subject to the confidentiality
obligations set forth in this agreement.
You agree that unless and until a definitive agreement regarding a
transaction between the Company and you has been executed, neither the Company
nor you will be under any legal obligation of any kind whatsoever with respect
to such a transaction by virtue of this agreement except for the matters
specifically agreed to herein. You further acknowledge and agree that the
Company reserves the right, in its sole discretion, to reject any and all
proposals made by you or any of your Representatives with regard to a
transaction between the Company and you, and to terminate discussions and
negotiations with you at any time. It is understood and agreed that money
damages would not be a sufficient remedy for any breach of this agreement and
that the Company shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach and you further agree to
waive any requirement for the security or posting of any bond in connection with
-5-
such remedy. Such remedy shall not be deemed to be the exclusive remedy for
breach of this agreement but shall be in addition to all other remedies
available at law or equity to the Company.
In the event of litigation relating to this agreement, if a court of
competent jurisdiction determines in a final, non-appealable order that a party
has breached this agreement, then such party shall be liable and pay to the non-
breaching party the reasonable legal fees such non-breaching party has incurred
in connection with such litigation including any appeal therefrom.
You are aware, and will advise your Representatives who are informed
of the matters that are the subject of this agreement of the restrictions
imposed by the United States securities laws on the purchase or sale of
securities by any person who has received material, non-public information from
the issuer of such securities and on the communication of such information to
any other person when it is reasonably foreseeable that such other person is
likely to purchase or sell such securities in reliance upon such information.
You acknowledge that you have received the attached copy of Article 17
of the LNG Sales Contract between Cabot LNG Corporation and EcoElectrica, L.P.
and agree, on behalf of yourself and each employee to whom you make disclosures
of the Confidential Information (as defined in such Article 17), to notify each
recipient of, and to abide by, the provisions of such Article 17.
This agreement is for the benefit of the Company and the advisor and
shall be governed and construed in accordance with the laws of the State of New
York, without regard to its conflicts of law principles. This agreement may not
be assigned by operation of law or otherwise. Your obligations under this
agreement shall expire three years from the date hereof, except as otherwise
explicitly stated above. Following the consummation of a transaction between
the Company and you, the terms of this agreement may be enforced directly by
either the Company or EcoElectrica, L.P., a Bermuda limited partnership, which
shall after such event be deemed a third party beneficiary of this agreement.
This agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement. Please confirm that the foregoing is in accordance with
your understanding of our agreement by signing and returning to us a copy of
this letter.
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Very truly yours,
KENETECH Energy Systems Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
ACCEPTED AND AGREED:
EDISON MISSION ENERGY
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Exhibit to
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Confidentiality Agreement
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LNG SALES CONTRACT
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ARTICLE 17 - CONFIDENTIALITY
----------------------------
Except as provided below, information or documents which come into the
possession of one Party from the other Party in connection with the negotiation
or performance of this Contract (including this Contract or any summary or
description thereof) ("Confidential Information") may not be communicated or
otherwise disclosed to third parties without mutual written agreement of the
Parties. However, either Party shall have the right to disclose such information
or documents:
(a) to its direct or indirect shareholders (or partners); to Atlantic LNG and
its direct and indirect shareholders; to legal counsel, accountants, other
professional consultants (collectively "Consultants") for either party or for
the parents or owners of a Party, provided, in the case of Consultants, such
disclosure is solely to further the purpose for which such persons were engaged;
(b) to (1) underwriters or providers (or prospective providers) of finance or
equity capital or (2) purchasers (and prospective purchasers) of significant
equity interests in (or interests in assets of) either Party or the parents,
owners of subsidiaries of a Party (and to such person's Consultants) provided
(i) such disclosure is solely to further the purpose for which such persons were
engaged, (ii) in the case of purchasers (or prospective purchasers) that the
material to be disclosed is submitted in advance to the non-disclosing Party for
its consent that such material is not misleading, and (iii) no such disclosure
may be made to any persons identified by the non-disclosing Party to the extent
the non-disclosing Party reasonably believes such disclosure would have a
material adverse impact on the competitive position of such Party and so informs
the other Party;
(c) if required by any order of court or any law, rule, regulation, or
directive of any governmental agency or entity with jurisdiction over a Party or
an affiliate of such Party and having authority to require such disclosure in
accordance with that authority or pursuant to the rules of any recognized stock
exchange or agency established in connection therewith; and
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(d) to the extent any such information or document has entered the public
domain other than through the fault or negligence of the Party making the
disclosure or by those to whom it previously made disclosures hereunder.
In the case of disclosures under (a) or (b) above, such disclosures can
only be made if the recipient of the information executes the following
acknowledgment: "The undersigned has received the attached copy of Article 17 of
the LNG Sales Contract between Cabot LNG Corporation and EcoElectrica L.P. and
agrees, on behalf of itself and each employee to whom it makes disclosures of
the Confidential Information. to notify each recipient of, and to abide by, the
provisions of such Article 17."
EXHIBIT C
WAIVER AGREEMENT
This Waiver Agreement (this "Agreement") is made as of December 23, 1998,
by and among EcoElectrica, L.P. ("ECOELECTRICA"), the Puerto Rico Electric Power
Authority ("PREPA"), Enron Development Corp. ("ENRON"), KENETECH Energy Systems,
Inc. ("KES") and Edison Mission Energy ("EME"). Capitalized terms used herein
have the same meanings given in the PPOA (as defined below), unless the context
otherwise requires.
WHEREAS: EcoElectrica and PREPA have entered into that certain Power
Purchase and Operating Agreement, dated as of March 10, 1995, as amended by
Amendment No. 1 to Power Purchase and Operating Agreement, dated as of October
31, 1997 (as amended, the "PPOA");
WHEREAS: KES intends to transfer its indirect interest in EcoElectrica
(the "KES INTEREST") to a subsidiary of EME (EME and/or its subsidiaries,
"MISSION");
WHEREAS: Section 2.3(c) and Article 23 of the PPOA contains certain
requirements regarding Qualifying Facility status;
WHEREAS: EcoElectrica has received an order from FERC (and has filed
notices of self-certification) to the effect that the Facility is a Qualifying
Facility, based on the technical characteristics of the Facility and the current
indirect ownership in EcoElectrica by KES (50%) and affiliates of Enron (50%);
WHEREAS: The regulations promulgated pursuant to PURPA (18 C.F.R.
Section 292.206) limit the ownership of a qualifying facility by a person
primarily engaged in the generation or sale of electric power (i.e., an electric
utility or utilities, or an electric utility holding company, or companies, or
any combination thereof) to no more than 50% of the equity interest in a
qualifying facility (the "Utility Ownership Level");
WHEREAS: EcoElectrica has requested, at the request of Mission and PREPA
has agreed, to grant EcoElectrica pursuant to the terms of this Agreement, a
limited waiver of the provisions of Section 2.3(c) and Article 23 of the PPOA as
set forth below;
NOW THEREFORE, in consideration of the payment to PREPA of the sum of
$29,275,000 and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the undersigned and PREPA acknowledge and
agree as follows:
1. Limited Waiver. PREPA hereby grants a waiver of any requirement that
--------------
EcoElectrica have, achieve, maintain or reobtain status as a Qualifying
Facility under Section 2.3(c) and Article 23 of the PPOA for the
duration of EME's direct or indirect ownership of the KES Interest,
provided that the sole reason for the non-existence of such status is
the failure to comply with the Utility Ownership Level. PREPA also
hereby forgoes, waives and agrees not to assert any right to declare
any claim or default under or breach of the
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PPOA, to the extent that such claim or default or breach results solely
from EcoElectrica's failure to have, achieve, reobtain, obtain or
maintain Qualifying Facility status due to EME's ownership of the KES
interest and the subsequent failure to comply with the Utility
Ownership Level. This limited waiver shall be effective following
PREPA's receipt of the $29,275,000 payment set forth in this letter
agreement, in full, in United States dollars, from Mission.
2. Limited Indemnity. EME hereby agrees to hold PREPA harmless and to
-----------------
indemnify PREPA against any actual, direct loss, damage, cost, expense
or liability (including reasonable attorneys' fees) resulting solely
from any attempt by KENETECH Corporation or any of its affiliates, or
any creditor or shareholder of KENETECH Corporation or any of its
affiliates, pursuant to this Agreement to invalidate or otherwise
unwind the transfer of consideration by Mission to PREPA for the waiver
granted by PREPA pursuant to this Agreement, within the applicable
state statute of limitations following the date of execution and
delivery of this Agreement ("Kenetech Creditor Claim"). Notwithstanding
anything in this Agreement to the contrary, EME's obligation to
indemnify PREPA shall in no event exceed the value paid for this waiver
by Mission pursuant to Section 1, and EME's obligations under this
paragraph shall expire and terminate without any action by any person,
in the event that no such Kenetech Creditor Claim is raised. The waiver
granted under Section 1 shall remain in full force and effect during
any contest or proceeding with respect to any KENETECH Creditor Claim,
and provided that EME satisfies its indemnity obligations hereunder,
from and after satisfaction of any KENETECH Creditor Claim. PREPA shall
promptly notify EME of any claim as to which indemnification is sought
under this Section 2. Promptly after EME receives notification of such
claim (and in no event later than the 30/th/ day following EME's
receipt of notice of such claim), EME shall notify PREPA whether it
believes such claim to be covered by the indemnity set forth in this
Section 2, and if so, whether it intends to pay, object to, comprise or
defend any matter involving the asserted liability of PREPA.
EME shall have the right to investigate, and the right in its sole
discretion to defend, settle or compromise, any claim for which
indemnification is sought under this Section to the extent that such
claim does not exceed the maximum indemnification amount set forth in
this Section. If EME elects to defend, settle or compromise any such
asserted claim it shall do so at its own expense and by counsel
selected by it and reasonably acceptable to PREPA. Upon EME's election
to defend, settle or compromise any such claim and notification to
PREPA of its intent to do so, EME shall be entitled to control the
defense, settlement or compromise thereof. PREPA shall cooperate with
EME in good faith and comply with all reasonable requests of EME in
connection therewith, at EME's expense. Where EME undertakes the
defense with respect to a claim, no additional legal fees or
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expenses of PREPA in connection with the defense of such claim shall be
indemnified by EME hereunder unless such fees or expenses are incurred
at the request of EME and except for reasonable fees and expenses
incurred prior to EME's election to defend such claim.
If, after due notice thereof from PREPA, EME fails to acknowledge or
denies that any such claim is one for which it is obligated to
indemnify, then PREPA may pay, settle, compromise, defend or take any
such action it may reasonably deem necessary with respect to such
asserted claim without affecting in any way PREPA's right to claim
indemnification from EME under this Section. EME shall be entitled to
participate at its own expense in any such proceeding controlled by
PREPA and shall be kept informed of the status of such proceeding by
PREPA.
PREPA shall not enter into or agree to any settlement of any claim for
which indemnity is provided hereunder without EME's prior written
consent, unless PREPA waives any indemnification by EME in respect
thereof. PREPA may participate at its own expense in any defense,
settlement, compromise or proceeding controlled by EME, provided that
PREPA's participation does not, in the opinion of counsel appointed by
EME to conduct such proceedings, interfere with such control. In the
event PREPA receives any refund, reimbursement or other payment, in
whole or in part, with respect to any amount paid by EME hereunder, it
shall segregate the same from its own funds and immediately pay the
amount so received to EME.
To the extent a claim against PREPA for which indemnification is sought
under this Section exceeds the maximum indemnification amount provided
for in this Section: (i) PREPA may oppose such claim without EME's
consent or approval; (ii) EME shall consult with and seek PREPA consent
prior to finalizing any settlement or resolution in which an amount in
excess of such maximum indemnification amount is payable; and (iii) EME
and PREPA agree to consult and cooperate with each other in good faith
with regard to such claim.
PREPA agrees that it shall not at any time take any action, and it
shall actively oppose any attempt by others, to challenge the validity
or enforceability of the limited waiver by PREPA contemplated by
Section 1, so long as (a) the payment by Mission pursuant to Section 1
is made and is not invalidated or rescinded, and (b) EME does not
breach its indemnification obligations pursuant to Section 2.
3. No Liability. Each of the undersigned acknowledges and agrees that
------------
EcoElectrica has requested that PREPA grant the waiver set forth in
Section 1 above, that such waiver is satisfactory and is responsive to
such request. Each of the undersigned (other than PREPA) agrees that it
will under no
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circumstances hold PREPA or its officers, directors, agents, advisors,
employees, parent, subsidiaries, or affiliates, or their officers,
directors, agents, advisors or employees ("PREPA Related Entities")
liable or responsible in any way for performing any actions or
exercising any rights pursuant to this Agreement, including granting
the waiver and receiving the payment, or hold PREPA or any PREPA
Related Entities or any other party liable in any way for any
consequences suffered by the undersigned due to performance of such
actions or exercise of such rights; provided, however, that the
foregoing shall in no way be deemed to waive or release any claim
arising from a breach of the representations, warranties or
acknowledgments contained in Sections 7 or 10 of this Agreement, any
claim arising from any other breach of this Agreement or any other
right of any signatory arising under the terms and conditions of this
Agreement.
4. Other Provisions of the PPOA. Except to the extent set forth herein,
----------------------------
the PPOA remains in full force and effect and is hereby ratified and
confirmed in all respects; provided however, the foregoing ratification
and confirmation shall not be deemed a waiver of any rights any party
may hereto have under the PPOA.
5. Governing Law. This Agreement shall be governed by the laws of the
-------------
Commonwealth of Puerto Rico.
6. Dispute Resolution. Any dispute relating to the subject matter of this
------------------
Agreement shall be resolved in the manner contemplated in the PPOA with
respect to disputes arising thereunder.
7. Authority. Each of the undersigned and PREPA represents and warrants to
---------
the other that the execution and delivery of this Agreement by such
party: (a) has been authorized by all necessary corporate or
partnership action, as the case may be, of such party, and this
Agreement is a legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms; (b) does
not conflict with or result in a breach of (i) any provision of its
organizational or governance documents or (ii) any other agreement or
instrument binding on it or its properties; and (c) does not require
any consent or approval from any governmental authority or other person
or entity which has not been obtained prior to the date hereof.
8. No Bankruptcy Court Approval Required for KES or KES Affiliates. KES
---------------------------------------------------------------
hereby represents and warrants to PREPA and to Mission that the
execution and delivery of this Agreement and other transactions
relating to the transfer of the KES Interest by KES do not require any
approval or consent from any bankruptcy or insolvency court, and will
not constitute a breach of its obligations under that certain
Settlement Agreement and Release dated as of May 13, 1998, among KES,
KENETECH Windpower, Inc., the Official
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Unsecured Creditors' Committee of KWI, and certain other parties named
therein.
9. Payoff of Noteholders. KES hereby represents and warrants to PREPA and
---------------------
to Mission that concurrently with the execution and delivery of this
Agreement by KES, the noteholders under that certain Indenture, dated
as of December 28, 1992, by and between KENETECH Corporation and Bank
of New York (as successor trustee for Meridian Trust Company of
California) shall be paid from or payment shall be provided for out of
the proceeds from the disposition of the KES Interest at the closing
for the transfer thereof.
10. Miscellaneous. This Agreement shall bind and be for the benefit of the
-------------
parties hereto and their respective successors, affiliates and assigns.
The waiver set forth in this Agreement is limited to the transaction
described in this Agreement and may not be relied upon by any other
person or entity other than the parties hereto and their respective
successors, affiliates and assigns. It may be signed in separate
counterparts. Other than any invalidity or rescission of the payment
from Mission to PREPA as a result of a KENETECH Creditor Claim for
which EME does not indemnify PREPA in accordance with Section 2, if any
term or provision of this Agreement, or the application thereof to any
person or circumstance, shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid
and be enforceable to the fullest extent permitted by law. The captions
in this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this
Agreement or the scope or content of any of its provisions. This
Agreement may not be modified except by a written agreement duly
executed by all parties. The parties acknowledge that Mission has
agreed to purchase the KES Interest in reliance, among other things, on
the acknowledgments and agreements set forth in this Agreement;
provided, however that no party hereto other than Mission or KES shall
have any liability under the agreements by which Mission agrees to
acquire the KES Interest. Each of the undersigned acknowledges that it
has no objection to such purchase. PREPA acknowledges that
EcoElectrica, its affiliates, and Mission will continue to rely on
these waivers for the duration of Mission's ownership of an interest in
EcoElectrica and the PPOA.
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IN WITNESS WHEREOF, the undersigned have duly caused this Agreement to be
executed and delivered as of the day and year first above written.
PUERTO RICO ELECTRIC POWER
AUTHORITY
By: __________________________
Title: _______________________
ECOELECTRICA, L.P.
By: ECOELECTRICA, LTD.,
its General Partner
By: ________________________________
Title: Class B Authorized Signatory
-----------------------------
By: ________________________________
Title: Class B Authorized Signatory
-----------------------------
ENRON DEVELOPMENT CORP.
By: __________________________
Title: _______________________
KENETECH ENERGY SYSTEMS, INC.
By: __________________________
Title: _______________________
EDISON MISSION ENERGY
By: __________________________
Title: _______________________
