Message-ID: <19273275.1075845847281.JavaMail.evans@thyme> Date: Wed, 2 May 2001 04:28:00 -0700 (PDT) From: aroffwarg@bracepatt.com To: ben.f.jacoby@enron.com Subject: Re: Greystone/Haywood - Extension of Dates Cc: szisman@ect.enron.com, kay.mann@enron.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Bcc: szisman@ect.enron.com, kay.mann@enron.com X-From: "Aaron Roffwarg" X-To: X-cc: , X-bcc: X-Folder: \Kay_Mann_June2001_2\Notes Folders\Discussion threads X-Origin: MANN-K X-FileName: kmann.nsf Ben, Thanks for your email. I have highlighted the pertinent Sections 2.2 and 2.3 of the Project Development Agreement to the bottom of this email for your review . So long as we extend the May 1, 2001 date to August 1, 2001 regarding Purchaser's obligations, I think many of your concerns are adequately covered by these Sections. This was a big concern of Healy's when we did the deal initially and we tried to make it clear that, despite a sale of the Interests to AES prior to the deadline for meeting the Development Milestones, Developer (ENA) would remain the exclusive developer of the Property as long as the PDA was in effect. Regarding indemnities, in Section 6.11, Purchaser agrees to indemnify Developer and Developer's related parties from all damages caused by Purchaser's nonfulfillment of any agreement or covenant under the PDA. Thus, if they breach the obligations listed below, they are liable to us for damages related to such breach. Please call me at your convenience to discuss this issue at your convenience. Best regards. SECTION 2.2 Obligations of Purchaser. Purchaser shall have the following obligations under this Project Development Agreement: (a) Purchaser shall use commercially reasonable efforts to cooperate with Developer in achieving the Development Milestones on or before [May 1, 2001]; (b) Purchaser shall pay to Developer all payments owing by Purchaser to Developer in accordance with Article III below, as and when such payments are due; (c) Purchaser agrees to provide on or before fifteen (15) days after the Effective Date the Base Configuration Information; (d) following Purchaser's submission to Developer of the Base Configuration Information, Purchaser hereby agrees not to change any of the information contained in the Base Configuration Information in any manner that could, in Developer's reasonable judgment, adversely affect Developer's ability to achieve the Development Milestones; (e) Purchaser agrees (i) not to take any action that is reasonably likely to hinder, impede or delay Developer's achievement of the Development Milestones or that could make Developer's achievement of such Development Milestones more costly and (ii) to use commercially reasonable efforts to promptly supply to Developer follow-up information that is consistent with the Base Configuration Information which is reasonably requested by Developer (or any Governmental Authority) in connection with Developer's pursuit of the Development Milestones; (f) Purchaser recognizes that, except as otherwise provided in Section 3.7, Developer is the exclusive developer of the Project; provided, that Developer agrees to include representatives of Purchaser in all material meetings and discussions with third parties related to the development of the Project, including all material discussions and meetings with respect to the TVA Interconnection Agreement and related matters. (g) in the event Purchaser purchases the Interests prior to the termination of this Project Development Agreement, all of Purchaser's obligations pursuant to this Project Development Agreement (including 2.2(f)) shall continue in full force and effect and Purchaser agrees to cause the Company (and any subsequent purchasers and assignees of the Company) to comply with all restrictions set forth in this Section 2.2(e)-(f) as if the Company (including any subsequent purchaser or assignee) and the Purchaser were the same entity. SECTION 2.3 Miscellaneous. (a) Notwithstanding Section 2.2(f) above but specifically subject to Section 2.2(e), (i) following Purchaser's purchase of the Interests, Purchaser may hold itself out as the "owner" of the Interests so long as Purchaser does so in a manner that does not adversely affect Developer's ability to achieve the Development Milestones and (ii) prior to Purchaser's purchasing of the Interests, Purchaser may have direct contact with Purchaser Contact Parties as reasonably necessary in connection with the Project so long as (x) prior to any such contact each Purchaser Contact Party has executed a confidentiality agreement in a form reasonably approved by Developer and (y) all such contacts and any agreements with any Purchaser Contact Party are made by Purchaser only on behalf of Purchaser (and specifically not the Company or Developer). (b) Notwithstanding anything stated herein to the contrary, Purchaser agrees not to enter into any agreement with any third party on behalf of the Company or otherwise bind the Company without the prior written consent of Developer which may be granted or withheld by Developer in its sole discretion. Purchaser agrees to defend and indemnify Developer and the Company against any Damages suffered by Developer or the Company related to any agreement or alleged agreement entered into between the Company and any third party in violation of this Section 2.3(b). The indemnification described in the previous sentence shall expressly survive the termination of this Project Development Agreement. (c) Purchaser agrees that all information it provides to Developer or any third party in connection with the Haywood Site, the Project, or the Company (i.e. information provided to regulatory authorities regarding air permit related matters) will be factually correct in all material respects. Aaron P. Roffwarg Bracewell & Patterson, LLP South Tower Pennzoil Place 711 Louisiana St. Houston, Texas 77002 (713) 221-1117 (Ph) (713) 221-2184 (Fax) CONFIDENTIALITY STATEMENT: This information is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that any dissemination of this information is strictly prohibited. If you have received this information in error, please notify us immediately by telephone at (713) 221-1117 or by fax at (713) 221-2184, and confirm that you have destroyed this information and any copies. Thank you. >>> 05/01/01 07:24PM >>> Aaron: It is highly likely that AES would exercise their early purchase option in May. As such, I want to make sure we are thinking about the duties, obligations, and indemnities among the parties under the circumstance that AES owns the member interests in Haywood, and ENA is continuing its efforts to achieve the milestone of the interconnection agreement through August 1. I also want to make sure we have adequate indemnities from AES regarding actions we will undertake to achieve the interconnection milestone. At the end of the day, ENA will be focused on two things: (i) causing TVA to lower its Network Upgrade estimate from the current level of $4.8 million, and (ii) causing TVA to produce an interconnection agreement in substantially the same form as the Gleason interconnect agreement. Obviously, with AES owning the Haywood member interests and being in the driver's seat, they will play a key role in whether these two items are achieved. I want to make sure that the same standards which applied to us prior to them exercising their early option (i.e. we were on the hook to use reasonable commercial efforts to achieve the milestones) now applies to them during the period that we are still trying to achieve the milestones. With Stuart's concurrence, I'd like you to further review the documents and make a recommendation as to what other changes, if any, we should make, to protect our upside under the circumstance described above. Thanks, Ben "Aaron Roffwarg" on 05/01/2001 06:49:19 PM To: , cc: , Subject: Greystone/Haywood - Extension of Dates Ben and Stuart, Attached is Amendment #2 to the SPA reflecting the business terms Ben and I discussed this afternoon. As you will see this structure (with the promissory note) is different from the structure described by Steve Hase in the attached email. Please let me know if the deal has evolved since our latest discussions. Please note that this is being sent to ENA only. Please call me with your comments at your earliest convenience. Best regards. Aaron P. Roffwarg Bracewell & Patterson, LLP South Tower Pennzoil Place 711 Louisiana St. Houston, Texas 77002 (713) 221-1117 (Ph) (713) 221-2184 (Fax) CONFIDENTIALITY STATEMENT: This information is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that any dissemination of this information is strictly prohibited. If you have received this information in error, please notify us immediately by telephone at (713) 221-1117 or by fax at (713) 221-2184, and confirm that you have destroyed this information and any copies. Thank you. Content-Transfer-Encoding: 8bit Received: from mcafee.bracepatt.com by bracepatt.com; Tue, 01 May 2001 15:29:24 -0500 Received: FROM aesc.com BY mcafee.bracepatt.com ; Tue May 01 15:40:09 2001 -0500 X-Proxy: keymaster.bracepatt.com protected Received: from 207.92.93.17 ([207.92.93.2]) by aesc.com with Microsoft SMTPSVC(5.0.2172.1); Tue, 1 May 2001 16:22:53 -0400 Message-id: Date: Tue, 01 May 2001 16:32:21 -0400 Subject: Re: Greystone/Haywood - Extension of Dates To: ALouison@hunton.com Cc: ben.jacoby@enron.com, stuart.zisman@enron.com, aroffwarg@bracepatt.com, prollin@aesc.com, mbarr@hunton.com From: "Steve Hase" References: <11A113B59DF4D311A0DE00805FA7F323028FC4E6@DCMAIL1> In-Reply-To: <11A113B59DF4D311A0DE00805FA7F323028FC4E6@DCMAIL1> MIME-Version: 1.0 Content-type: text/plain; charset=ISO-8859-1 Return-Path: shase@aesc.com X-OriginalArrivalTime: 01 May 2001 20:22:53.0236 (UTC) FILETIME =[800B0F40:01C0D27C] Audrey, Ben and I have reached an agreement which will be documented as follows: 1) Extension of Dates -- May 11 becomes May 9 (Wed) 2) Ben will edit the latest version of the Amendment #2 so that a) on Aug 1, we pay the greater of the $1.5MM ($2.5 less $1 paid at exercise) and the Additional Compensation (less the $1 MM) b) a separate agreement whereby Corp guarantees the payment on Aug 1. The intention is to sign the Amendment #3 before 5/9. Thanks everyone for making this happen. Steve Hase (See attached file: #1283523 v5 - AMENDMENT NO 2 TO SPA.doc)