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EXHIBIT 2
[Execution Version]
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
(KAFUS INDUSTRIES, LTD.)
This Partial Assignment and Assumption Agreement (this "Agreement"),
dated as of December 21, 1999 (the "Effective Date"), is between Enron North
America Corp., a Delaware corporation (the "Assignor"), and SE Thunderbird L.P.,
a Delaware limited partnership (the "Assignee") and is delivered pursuant to
that certain Purchase and Sale Agreement of even date herewith between Assignor
and Assignee (the "Purchase and Sale Agreement").
In the event of a conflict between the terms of this Agreement and the
Purchase and Sale Agreement, the Purchase and Sale Agreement shall control.
Terms capitalized for other than grammatical purposes in this Agreement and not
defined herein have the meanings set forth in the Purchase and Sale Agreement,
and the following term shall have the following definition:
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of July 16, 1997 between Kafus and Assignor, as the same may
have been amended, modified and supplemented from time to time.
PART I
GRANTING CLAUSES
For ten dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which Assignor hereby acknowledges, Assignor has
transferred, bargained, conveyed and assigned, and does hereby transfer,
bargain, convey and assign to Assignee, effective for all purposes as of the
Effective Date, the Registration Rights Agreement, including, without
limitation, all rights, privileges and obligations related thereto, but only to
the extent that the foregoing relate to the Kafus Shares; provided, however,
that Assignor's rights and duties with respect to (a) liquidated damages under
Section 2(b) of the Registration Rights Agreement accrued prior to the date
hereof and accruing through December 31, 1999, and (b) other debt, equity or
other instruments of Kafus held by Assignor, in each case shall not be assigned
or delegated pursuant to this Agreement (the "Assigned Rights").
TO HAVE AND TO HOLD, subject to the terms, exceptions and other
provisions herein stated, the Assigned Rights unto Assignee, its successors and
assigns, forever.
PART II
ASSUMPTION OF OBLIGATIONS BY ASSIGNEE
Assignee has and by these presents does hereby fully assume and agrees
to perform and timely discharge from and after the Effective Date all
liabilities, duties and obligations of the Assignor that are attributable to the
ownership of the Assigned Rights, including, without limitation, all
liabilities,
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duties and obligations of the Assignor that arise under the Registration Right
Agreement. Assignee agrees to be bound by all of the terms of the Registration
Rights Agreement.
PART III
MISCELLANEOUS
3.1 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of Assignor and Assignee and their respective successors and assigns.
3.2 GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Texas, except to the extent that it
is mandatory that the law of some other jurisdiction shall apply.
3.4 CAPTIONS. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
3.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of
the day and year first above written.
SE THUNDERBIRD L.P. ENRON NORTH AMERICA CORP.
By: Blue Heron I LLC, its general partner
By: Whitewing Associates L.P., its sole member
By: Whitewing Management LLC, its general partner
By: Egret I LLC, its managing member By:
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Name:
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By:
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Name:
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Title:
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