Exhibit 10.19(a)
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MASTER DEFINITIVE AGREEMENT
AMONG
SOUTHERN CALIFORNIA EDISON COMPANY,
ENRON WIND LLC,
ESI SKY RIVER LIMITED PARTNERSHIP,
ESI VG LIMITED PARTNERSHIP
AND PPA SELLERS
JANUARY 15, 2003
1. PARTIES
1.1. The Parties to this Master Definitive Agreement ("Master
Definitive Agreement") are, on the one hand, Southern California
Edison Company ("Edison"), and on the other hand, Enron Wind LLC
("Enron"), and ESI Sky River Limited Partnership and ESI VG
Limited Partnership (jointly, "FPL"), and the following listed
entities:
Cabazon Power Partners LLC;
Enron Wind Systems, LLC;
Zond Wind Systems Partners Ltd., Series 85-A;
Zond Wind Systems Partners Ltd., Series 85-B;
Sky River Partnership;
Victory Garden Phase IV Partnership;
ZWHC LLC; and
Painted Hills Wind Developers,
(such listed entities being referred to collectively hereinafter
as the "PPA Sellers" and individually with respect to each
project identified by an Edison qualifying facility
identification number ("QFID") on Attachment A as a "PPA
Seller").
1.2. Edison, Enron, FPL and each of the PPA Sellers are referred to
collectively in this Master Definitive Agreement as the
"Parties" and individually as a "Party."
2. RECITALS
2.1. Each of the PPA Sellers is a party to a power purchase agreement
("PPA") with Edison which provides for the sale to Edison of
electric energy and capacity from a QF wind-powered electric
generating project. Each PPA Seller and the wind energy project
facility (as identified by Edison QFID number) producing power
under the related PPA are hereinafter sometimes referred to
jointly as a "Project" and, collectively, with the Projects
associated with the other PPA Sellers, as the "Projects."
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2.2. FPL and/or Enron, directly or indirectly through their
respective affiliates, have an interest in each of the Projects.
2.3. Each PPA Seller and Edison are also currently parties to an
Agreement Addressing Renewable Energy Pricing and Payment
Issues, dated on or about June 19, 2001, as amended by Amendment
No. 1 to Agreement Addressing Renewable Energy Pricing and
Payment Issues, dated on or about November 30, 2001 (each, as
amended, a "Renewable Agreement" and, together, the "Renewable
Agreements"). The Renewable Agreements, among other things,
contain certain provisions applicable to the pricing terms of
the PPAs.
2.4. Certain of the Parties and/or their affiliates are presently
engaged in civil litigation in a California superior court
and/or in certain regulatory proceedings before the Securities
and Exchange Commission ("SEC") and/or the Federal Energy
Regulatory Commission ("FERC") which, among other things,
concern claims arising from the relationship between Edison, as
purchaser, and the PPA Sellers, as seller, under the PPAs.
2.5. On December 2, 2001, Enron Corp. (Case No. 01-16034 AJG), and
subsequently certain of its affiliates, including, without
limitation, Enron Wind, LLC, Enron Wind Systems, LLC and ZWHC
LLC, filed voluntary petitions for relief under Chapter 11 of
Title 11 of the United States Code, as amended, (collectively,
the "Enron Bankruptcy") in the U.S. Bankruptcy Court for the
Southern District of New York ("Bankruptcy Court").
2.6. It is the Parties' intentions to resolve the claims referenced
in Section 2.4 through (i) this Master Definitive Agreement, and
(ii) through the PPA amendments entered into by Edison and the
individual PPA Sellers, the form of which is attached hereto as
Attachment E (the "PPA Amendments"). This Master Definitive
Agreement and the PPA Amendments are collectively referred to
herein as the "Definitive Agreements." In entering into the
Definitive Agreements, each of the PPA Sellers is acting on
behalf of itself and (in its capacity as Project Manager under
the applicable PPA) all others, if any, who have an ownership or
other interest in the PPA Seller's respective Project(s), or any
portion thereof.
2.7. Prior to the execution of the Definitive Agreements, Edison,
Enron and FPL agreed to take certain actions in anticipation of
the Definitive Agreements being executed, as set forth in a
confidential Memorandum of Understanding, dated December 19,
2002 ("MOU"). The MOU memorialized both the essential terms that
the Parties agreed to include in the Definitive Agreements as
well as those actions that the Parties agreed to take prior to
the execution of the Definitive Agreements. The MOU
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also identified those provisions thereof that would be binding
immediately upon the parties to the MOU upon its execution as
distinguished from obligations that would be created only upon
the execution of the Definitive Agreements and satisfaction of
the conditions set forth in the Definitive Agreements.
3. AGREEMENT
In consideration of the promises, mutual covenants and agreements
hereinafter set forth, the Parties agree to the following:
4. DEFINITIONS
The following capitalized terms, when used in this Master Definitive
Agreement and any attachments thereto (except insofar as the PPA
Amendments may incorporate their own defined terms) shall have the
meanings specified in this Article 4.
4.1. "Attachment A" means Attachment A to this Master Definitive
Agreement. Attachment A lists each PPA Seller, its Edison QFID
number, and the applicable Forecast As-Available Capacity Price
($/kW-yr) on both a "Current" and "Adjusted" basis.
4.2. "Attachment B" means Attachment B to this Master Definitive
Agreement. Attachment B lists certain PPA Sellers, their Edison
QFID numbers, and for each the "Final Payment Amount as of
January 31, 2002" under the Renewable Agreement applicable to
each listed PPA Seller.
4.3. "Attachment C" means Attachment C to this Master Definitive
Agreement. Attachment C is a "Form of Estoppel Letter."
4.4. "Attachment D" means Attachment D to this Master Definitive
Agreement which contains the names and addresses of individuals
for notice pursuant to Section 17.12.
4.5. "Attachment E" means Attachment E to this Master Definitive
Agreement. Attachment E contains the form of PPA Amendment that
will be executed by Edison and each of the PPA Sellers as
referenced in Section 2.6 above.
4.6. "Bankruptcy Court" has the meaning specified in Section 2.5.
4.7. "Business Day" means a day on which Federal Reserve member banks
are open for business (excluding Saturday or Sunday) in: (i)
with respect to Edison and the PPA Sellers, Pacific Prevailing
Time; (ii) with respect to
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Enron, Central Prevailing Time; and (iii) with respect to FPL,
Eastern Prevailing Time. A Business Day for each Party shall
start at 8:00 a.m. and end at 5:00 p.m. at the prevailing time
in the applicable time zone.
4.8. "Cabazon Litigation" means Cabazon Power Partners LLC, et al. v.
Southern California Edison Company, et al., L.A. Sup. Ct. Case
No. BC 249688.
4.9. "CPUC" means the California Public Utilities Commission or its
successor.
4.10. "Definitive Agreements" has the meaning specified in Section 2.6
(and includes this Master Definitive Agreement).
4.11. "Edison" means Southern California Edison Company.
4.12. "Effective Date" has the meaning specified in Section 5.1.
4.13. "Enron" means Enron Wind LLC.
4.14. "Enron Bankruptcy" has the meaning specified in Section 2.5
4.15. "FERC" means the Federal Energy Regulatory Commission or its
successor.
4.16. "FERC Proceeding" means Investigation of Certain Enron
Affiliated QFs, FERC Docket No. EL03-17-000 et al. and Southern
California Edison Company v. Enron Generating Facilities, etc.,
FERC Docket No. EL03-19-000, et al.
4.17. "Final Payment Amount" has the same meaning as that term has in
the applicable Renewable Agreement between each PPA Seller and
Edison.
4.18. "Fixed Rate" and "Fixed Rate Period" shall have the same
meanings as those terms have in the applicable Renewable
Agreement between each PPA Seller and Edison.
4.19. "FPL" has the meaning specified in Section 1.1.
4.20. "Master Definitive Agreement" has the meaning specified in
Section 1
4.21. "MOU" has the meaning specified in Section 2.7.
4.22. "PPA" has the meaning specified in Section 2.1.
4.23. "PPA Notes" means those promissory notes made by Enron Wind
Systems, LLC in favor of certain other entities, dated as of
January 15,
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2003, which are issued in connection with the settlement that is
reflected in this Master Definitive Agreement.
4.24. "PPA Seller" and "PPA Sellers" have the meanings specified in
Section 1.1.
4.25. "Project" and "Projects" have the meanings specified in Section
2.1
4.26. "PURPA" means the Public Utility Regulatory Policies Act of
1978.
4.27. "QF" means a qualifying facility as defined in PURPA and in
regulations of FERC, Title 18 Code of Federal Regulations,
Sections 292.201 through 292.207.
4.28. "QFID" means qualifying facility identification number as
established by Edison for a small power production project.
4.29. "Renewable Agreement(s)" has the meaning specified in Section
2.3.
4.30. "Required Regulatory Approvals" has the meaning specified in
Article 15.
4.31. "Sagebrush Partnership" means the partnership organized for the
purpose of jointly developing, owning and operating the
Sagebrush Transmission Line, an approximately 46-mile high
voltage transmission line located in Kern County California that
provides transmission service for certain QF projects. The
Sagebrush Partnership is represented in the FERC Proceeding by
the manager of the Sagebrush Transmission Line, Eurus ToyoWest
Management LLC.
4.32. "Satisfaction Date" has the meaning specified in Article 6.
4.33. "SEC" means the Securities and Exchange Commission or its
successor.
4.34. "SEC Proceeding" means In the Matter of the Applications of
Enron Corp. for Exemptions Under the Public Utility Holding
Company Act of 1935 (Nos. 70-9661 and 70-10056), Admin.
Proceeding File No. 3-10909.
4.35. "SRAC" means the short run avoided cost formula for determining
energy prices payable to QFs as established from time to time by
the CPUC, including, but not limited to, applicable
time-of-delivery allocation factors and energy loss adjustment
factors, consistent with the manner in which the term SRAC is
used in the Renewable Agreements.
4.36. "Termination Date" has the meaning specified in Section 5.2.
4.37. "Waived QF Requirements" has the meaning specified in Section
10.1.
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5. EFFECTIVE DATE; TERMINATION
5.1. The Definitive Agreements shall become effective as of the date
(the "Effective Date") on which this Master Definitive Agreement
and all of the PPA Amendments have been fully executed, in the
manner provided for in Article 18, by the parties specified in
each respective Definitive Agreement. Following the Effective
Date, each Definitive Agreement shall remain subject to the
satisfaction or waiver of all conditions stated therein which
have not yet been satisfied.
5.2. In the event the Satisfaction Date has not occurred prior to the
day that is one hundred and eighty (180) days after the
Effective Date, then each of the PPA Amendments in their
entireties and each of the provisions of the Definitive
Agreements that are subject to the occurrence of the
Satisfaction Date shall terminate automatically on such day (the
"Termination Date"), and the remaining provisions of the Master
Definitive Agreement (which provisions are: Article 1 (Parties),
Article 2 (Recitals), Article 3 (Agreement), Article 4
(Definitions), Article 5 (Effective Date; Termination), the
first sentence of Article 6 (Satisfaction Date), Article 12
(Covenants at Execution of the Definitive Agreements), Article
15 (Conditions Precedent to Effectiveness of Definitive
Agreements; Regulatory and Other Approvals), Article 16
(Standstill; Stay), Article 17 (General Provisions, including,
without limitation, the provisions regarding confidentiality in
Section 17.1 et seq. with respect to the terms of both the
Master Definitive Agreement and the PPA Amendments) and Article
18 (Execution)) shall survive such termination.
6. SATISFACTION DATE
The Satisfaction Date shall be the date on which all Required Regulatory
Approvals have either been waived or obtained, without any modifications
or conditions that are not provided for in the Definitive Agreements, or
if modified or conditioned, upon the date of written acceptance of such
modification or condition by the Party or Parties which, upon exercising
reasonable business judgment, has or have concluded that its or their
rights or obligations under the Definitive Agreements would be
materially adversely affected by any such modification or condition.
Upon the occurrence of the Satisfaction Date, Edison shall, within five
(5) Business Days, provide written notice to the other Parties of such
occurrence, provided that any failure by Edison to so provide notice
shall not affect the occurrence of the Satisfaction Date.
7. REDUCTION IN CAPACITY PRICE
As memorialized in the PPA Amendments, which shall be executed by the
parties thereto concurrently with the execution of this Master
Definitive Agreement, each
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PPA will, upon the occurrence of the Satisfaction Date, be amended to
provide as follows:
7.1. For each Project, the forecast as-available capacity price
payable under the applicable PPA is reduced to the "adjusted"
price shown in Attachment A, commencing with deliveries made by
the Project to Edison on December 1 2002 and extending through
the remainder of the PPA's term.
7.2. Notwithstanding the foregoing provisions of Section 7.1, pending
the occurrence of the Satisfaction Date, Edison will continue to
pay each PPA Seller the as-available capacity rate specified in
its respective PPA as of November 30, 2002 and shown on
Attachment A as the "current" price.
7.3. Promptly after the occurrence of the Satisfaction Date, any
capacity payments that have actually been made by Edison to the
Project for deliveries made by the Project to Edison on and
after December 1, 2002 at 12:01 A.M. Pacific Time shall be
recalculated using the "adjusted" capacity price shown in
Attachment A as to the Project, and, effective as of the
Satisfaction Date, the difference (without interest) shall be
applied as a credit to Edison against the next payment due the
Project for both energy and capacity pursuant to the PPA;
provided, however, that if the amount of such credit to Edison
exceeds the full amount owing in the first payment due the
Project after the Satisfaction Date, Edison shall fully offset
the current amount owed under the PPA by Edison and apply the
remaining balance of the credit as an offset to each successive
payment due the Project by Edison thereafter in the same manner
until the credit is fully utilized (all such offsets accruing as
of the Satisfaction Date).
7.4. If the credit owed Edison for the Project has not been fully
utilized by the conclusion of three successive billing cycles,
then Edison may, at its option, invoice the Project for the
remaining, unutilized portion of the credit, which invoice shall
be paid by the Project within ten (10) days of receipt.
7.5. Following the Satisfaction Date, capacity payments for
deliveries by the Project made from and after December 1, 2002
for which payment has not yet been made shall be calculated
using the applicable adjusted as-available capacity price set
forth in Attachment A and incorporated in each respective PPA
Amendment.
8. ENERGY RATE TO TRACK CPUC CHANGES
As memorialized in the PPA Amendments, each PPA will, upon the
occurrence of the Satisfaction Date, be amended as of the Effective Date
to provide as follows:
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8.1. In the event that the CPUC changes the applicable rate for
energy (including, but not limited to, changes to the
CPUC-approved SRAC rate) that is generally applicable, during
any part of the remaining term of the PPAs, to those entities
owning renewable QFs that signed a Renewable Agreement and is
applicable under the PPAs, then, on the date on which such
change becomes effective, and continuing until such time as such
rate is no longer applicable pursuant to the terms of the PPAs,
as amended, the energy rate for power purchases made pursuant to
the PPAs shall, without further action by the Parties or
otherwise, be the revised rate adopted by the CPUC.
8.2. Nothing herein shall preclude any Party from seeking rehearing
or other appropriate review of any CPUC order(s) or decision(s)
effecting a change in rate(s) for energy sales under the PPAs or
from fully participating in any CPUC proceedings pertaining to
such change or proposed change.
8.3. Notwithstanding any of the other provisions of this Article 8,
nothing in this Article 8 shall be construed as modifying or
diminishing any rights or obligations of the Parties under the
energy rate provisions of the Parties' Renewable Agreements,
including, but not limited to, the provisions therein applicable
to the Fixed Rate associated with the Fixed Rate Period, nor
shall anything in this Article 8 be construed as conferring upon
the CPUC any rate setting authority that it does not already
possess with respect to the PPAs, as amended pursuant to the
Renewable Agreements.
9. TREATMENT OF OUTSTANDING ACCOUNTS RECEIVABLE BALANCES, IF ANY
To the extent Edison has not previously paid a Project its applicable
Final Payment Amount as shown on Attachment B:
9.1. Pending the occurrence of the Satisfaction Date, Edison may and
will continue to withhold the Final Payment Amount for the
Project, as well as any accrued, but unpaid, interest thereon.
9.2. On the Satisfaction Date, (i) the Final Payment Amount for the
Project, including all accrued interest thereon, if any, shall,
if not previously paid by Edison, be deemed to have been paid in
full, without any further payment by Edison; and (ii) all
provisions of a Renewable Agreement that were conditioned on
Edison's payment of the Final Payment Amount shall be deemed to
have become fully effective as to the Project as if such Final
Payment amount had been paid in accordance with the applicable
Renewable Agreement.
10. WAIVER OF CERTAIN QF REQUIREMENTS
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10.1. Effective on the Satisfaction Date, each Project's PPA will be
amended, as memorialized in the PPA Amendments, to provide that
the Project shall not, on or after such date, be required to
satisfy any ownership or size limitation requirements applicable
to QFs, including, without limitation, those requirements set
forth in 16 U.S.C. Section 796(17) (A) (ii), 16 U.S.C. Section
796(17)(C)(ii) and 18 C.F.R. Sections 292.204(a)(1) and 292.206
(collectively, the "Waived QF Requirements").
10.2. The PPA Amendments shall not affect any other rights,
obligations or liabilities of either Edison or the Projects, and
each of them, arising under state and federal law, and neither
Edison nor the Projects shall assert such PPA Amendments as a
basis for avoiding, amending or modifying any terms of each
Project's PPA other than those that would require compliance
with the Waived QF Requirements absent the PPA Amendment.
10.3. Without limiting the foregoing, it is expressly understood that
although, upon the occurrence of the Satisfaction Date, each
Project will no longer be required to comply with the Waived QF
Requirements, and therefore will no longer be required to be or
certify as a QF under PURPA and FERC's regulations implementing
PURPA, the Projects, and each of them, will nonetheless, except
as to the Waived QF Requirements, continue to generate power for
sale to Edison under the PPAs in the manner required by PURPA,
16 U.S.C. Section 796(17)(A)(i), 16 U.S.C. Section 796(17)(B),
and 16 U.S.C. Section 796(17)(C)(i) (but not including, in
addition to the Waived QF Requirements, any QF certification
requirements), and FERC's regulations implementing the foregoing
requirements set forth in this Section, 18 C.F.R. Section
292.204 (b), as wind power production facilities, and further
that, with the exception of the Waived QF Requirements, the PPAs
applicable to the Projects shall continue to be administered by
Edison as QF contracts.
10.4. It is expressly understood that in connection with the
Definitive Agreements, the Projects intend to seek approval of
the rates provided in the PPAs, as amended pursuant to the
Renewable Agreements and the Definitive Agreements, pursuant to
Section 205 of the Federal Power Act, as amended. No Party shall
assert that either the seeking or the granting of such rate
approval constitutes a basis for altering, amending or avoiding
any of the terms or conditions of a PPA, as amended.
11. RELEASES; WAIVER OF CIVIL CODE SECTION 1542
11.1. As of the Satisfaction Date, Edison, on the one hand, and Enron,
FPL and each PPA Seller (on behalf of itself, its respective
Project and (in its capacity as Project Manager under the
applicable PPA) all others who have an ownership or other
interest in such Project or any portion of it), on
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the other hand, mutually release and discharge one another, and
each of their respective affiliates, parents, shareholders,
directors, officers, employees, agents and advisors, partners,
joint venturers, predecessors, successors and assigns, and all
others who have an ownership interest in such Project or any
portion of it from any and all claims, obligations, losses,
causes of action, allegations, demands and liabilities, of
whatsoever kind and nature, character and description, whether
in law or equity, whether sounding in tort, contract or under
other applicable law, whether known or unknown, whether
anticipated or unanticipated, or whether asserted or unasserted,
of or to a Party (collectively, "Claims") based on or arising
out of: (i) lack of compliance by the Project or its affiliates
with the Waived QF Requirements as to such Projects at any time
prior to the Satisfaction Date; (ii) Edison's Claims asserted in
the SEC Proceeding; (iii) Edison's Claims in the FERC
Proceeding; (iv) all Claims asserted on behalf of any of the
Projects or by Edison in the Cabazon Litigation and/or, if
applicable, which concern or pertain to Edison's withholding or
non-payment of the Final Payment Amount for any of the Projects
and/or any accrued interest thereon; and (v) any Claims which
arise from any subsequent FERC proceeding or any other
proceeding regarding the issue of QF status as it pertains to
the Waived QF Requirements that may affect payment obligations
under the PPAs applicable to the Projects.
11.2. Each of the Parties believes that it is fully familiar with the
facts giving rise to this settlement, including any facts that
have arisen as the result of any investigations of Enron Corp.
and its affiliates by governmental entities, including, without
limitation, by FERC, the United States Congress and the State of
California, in relation to the conduct of Enron Corp. and its
affiliates in the electric power market, but agrees that the
Definitive Agreements shall remain fully effective and binding
as to each of them even if the facts turn out to be different
from what they now believe them to be or there are additional
future investigations of Enron Corp. and its affiliates as to
the matters which are the subject of the Definitive Agreements.
Further, as to specific matters released in Section 11.1, each
of the Parties waives the benefit of California Civil Code
Section 1542 (or any similar law from another jurisdiction).
Section 1542 of the California Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
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Such waiver is not a mere recital but a knowing and intentional
waiver of a known right undertaken after consultation with
counsel and with a full understanding of the risks and
uncertainties inherent in such a release. Notwithstanding the
waiver of Civil Code Section 1542, the Parties, and each of
them, acknowledge that the releases in the Definitive Agreements
are specific to the matters set forth in the releases and are
not intended to create general releases as to all Claims, or
potential Claims, between the Parties.
11.3. As of the Satisfaction Date, Edison will release and discharge
the Sagebrush Partnership and its successors and assigns
(provided that the effectiveness of the release in this Section
11.3, but no other provision of the Definitive Agreements, shall
be expressly conditioned on the Sagebrush Partnership and its
successors and assigns providing a mutual release reasonably
satisfactory to Edison prior to the Satisfaction Date), in each
case, from any and all Claims (as defined in Section 11.1 above)
based on or arising out of: (i) lack of compliance by any of the
Projects or their affiliates with the Waived QF Requirements as
to such Projects at any time prior to the Satisfaction Date;
(ii) Edison's Claims asserted in the SEC Proceeding; (iii)
Edison's Claims in the FERC Proceeding; (iv) all defenses and
Claims asserted by Edison in the Cabazon Litigation; and (v) any
Claims which arise from any subsequent FERC proceeding or any
other proceeding regarding the issue of QF status as it pertains
to the Waived QF Requirements.
11.4. As of the Satisfaction Date, the release provisions set forth in
the Renewable Agreement for each Project shall be deemed
ratified by the applicable PPA Seller and Edison, confirming
that such release provisions are, as of such date, in full force
and effect and not subject to any further conditions, in
accordance with the terms, conditions and applicable dates, as
provided in such release provisions without modification.
11.5. Effective on the Satisfaction Date, Edison, on the one hand, and
Enron, FPL, and the PPA Sellers, on the other hand, represent
and warrant each to the other that, as of the date on which each
such Party executes the Master Definitive Agreement, it is,
without investigation, unaware of any defenses to the validity
of the release provisions set forth in the Renewable Agreements,
other than those expressly released or waived in the Definitive
Agreements.
12. COVENANTS AT EXECUTION OF THE DEFINITIVE AGREEMENTS
12.1. Subject to the provisions of Section 12.3, each Party covenants
not to challenge or seek to modify pursuant to Section 206 of
the Federal Power Act either the adjusted capacity rate provided
for in Attachment A or the Fixed Rate associated with the Fixed
Rate Period.
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12.2. Each PPA Seller (on behalf of the applicable Project) covenants
that it will not assert rate authority obtained pursuant to
Section 205 of the Federal Power Act, as amended, as a basis,
whether directly or indirectly, for avoiding any provision of
the PPM, as amended.
12.3. The covenants of Sections 12.1 and 12.2 shall terminate on the
Termination Date, if any.
12.4. Each Party hereto represents and warrants that it has obtained
all necessary approvals to enter into, execute and, upon receipt
of the Required. Regulatory Approvals, to implement, the
Definitive Agreements. Enron further represents and warrants
that the transaction contemplated by the MOU has been submitted
to the Enron Bankruptcy Creditors' Committee and that the
Creditors' Committee has indicated, pursuant to the manner in
which such indications have generally been given in the Enron
Bankruptcy, that (i) it has no objection to Enron seeking
approval of the Bankruptcy Court for such transaction, and (ii)
it has no present intention to file an objection to such
transaction.
12.5. Each PPA Seller, on behalf of itself and its applicable Project,
specifically represents that the approvals of those lenders and
other investors or participants in the Project which are
necessary or deemed necessary or advisable by such PPA Seller,
as well as such other consents and approvals, if any, which may
be necessary or deemed necessary or advisable by such PPA
Seller, in each case, under the PPA and various other Project
agreements, have been obtained.
12.6. Each Party represents and warrants that it has not, at any time
prior to its execution of the Definitive Agreements, assigned or
otherwise transferred, or purported to assign or otherwise
transfer, to any party, directly or indirectly, voluntarily,
involuntarily or by operation of law, any Claims it may have
against the other Party, or any Claims being released by the
provisions of Section 11.1 of this Master Definitive Agreement
or which are encompassed within the release provisions of the
Renewable Agreements for the Projects.
13. ESTOPPEL LETTER
For a period of eighteen (18) months after the Satisfaction Date, so
long as a Project is in compliance with its PPA and the terms and
conditions of the Definitive Agreements after taking into consideration
the effect of the releases and waivers contemplated in the Definitive
Agreements and in the Renewable Agreement for the Project, Edison will,
upon the reasonable request of Enron, FPL or a PPA Seller, as
applicable, provide an estoppel letter, in the form of Attachment C, for
such Project and PPA in connection with any sale, assignment
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or other transfer of such Project or of the interest of a Party or its
affiliate (or any interest of the Enron Bankruptcy estate) in such
Project.
14. DISPOSITION OF SEC PROCEEDING, FERC PROCEEDING, CABAZON LITIGATION AND
OTHER MATTERS
14.1. Within five (5) Business Days following the Satisfaction Date,
Edison will withdraw with prejudice, or, where required by
applicable rules of procedure, seek permission from the
applicable agency to withdraw with prejudice: (i) any and all
interventions, complaints, allegations, and motions in the SEC
Proceeding; and (ii) any and all interventions, complaints,
allegations, and motions in the FERC Proceeding that are based
on the Claims released and/or waived in the Definitive
Agreements, including, but not necessarily limited to, filing a
Notice of Withdrawal pursuant to 18 C.F.R. Section 385.216 for
the purpose of withdrawing Edison's petition for declaratory
order and complaint in FERC Docket No. EL03-19-000.
14.2. Within five (5) Business Days following the Satisfaction Date,
Edison will withdraw and/or waive any claims it has asserted in
the Enron Bankruptcy that are based on the Claims released
and/or waived in the Definitive Agreements. Edison shall not be
obligated to withdraw and/or waive any other claim that it has
filed in the Enron Bankruptcy, such as, but not limited to, its
claim against Enron Corp. based on alleged energy market
manipulation and related activities.
14.3. Within five (5) Business Days following the Satisfaction Date,
the PPA Sellers who are parties to the Cabazon Litigation shall
cause to be filed with the superior court a request for
dismissal of the Cabazon Litigation in its entirety with
prejudice.
14.4. Each of the Parties shall bear its own attorneys' fees and costs
in the FERC Proceeding, the SEC Proceeding, and the Cabazon
Litigation.
14.5. Each of the Parties covenants that, after the Satisfaction Date,
it will not bring, enter into, participate or intervene in or
otherwise pursue, directly or indirectly, any subsequent actions
or proceedings arising from or related to any of the Claims
released in the Definitive Agreements, except for the purpose of
enforcing any of the terms of the Definitive Agreements.
14.6. As of the Satisfaction Date, Edison, on the one hand, and Enron,
FPL, and each PPA Seller, on the other hand, as to each other,
irrevocably waive, discharge and agree to forego any rights they
have or may have to the benefit of any ruling(s) of FERC or the
SEC in the FERC Proceeding and/or the SEC Proceeding (or any
subsequent proceedings which concern the same general factual
allegations as form the basis of the Claims
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released and/or waived in the Definitive Agreements) in respect
of the rates Edison must pay, refunds of prior amounts paid by
Edison, or other economic effect upon or under the PPA for each
of the Projects. To the extent any Party actually receives any
funds from another Party on account of such rights or benefits
the receipt of which would be inconsistent with the waiver,
discharge, etc. provided for in this paragraph, such Party will
promptly pay such funds over to the other Party.
15. CONDITIONS PRECEDENT TO EFFECTIVENESS OF DEFINITIVE AGREEMENTS;
REGULATORY AND OTHER APPROVALS
Certain terms and conditions of the Definitive Agreements will not
become effective until the Satisfaction Date, the occurrence of which
requires that the Required Regulatory Approvals first be either obtained
or waived in writing. For this purpose "Required Regulatory Approvals"
means the approval of each regulatory agency or court described in
Sections 15.1, 15.2 and 15.3 below with respect to which the responsible
agency or court has issued an order meeting the finality requirements
set forth below for each respective agency or court and which approves
the Definitive Agreements without modification thereto which is
unacceptable, in its reasonable business judgment, to a Party whose
rights or obligations under the Definitive Agreements are materially
adversely affected by such modification. The Parties agree to cooperate
and use their reasonable best efforts (which shall not require the
taking of any appeal beyond the initial court or agency from which
approval has been sought and which appeals, if taken, shall not extend
the Satisfaction Date absent the agreement of the Parties) to obtain the
Required Regulatory Approvals promptly. The Parties agree to notify each
other promptly in writing in the event it is determined that any
Required Regulatory Approval will not be forthcoming. In such event, any
Party may notify the SEC, FERC, the CPUC, the Bankruptcy Court and/or
the court in the Cabazon Litigation of such non-approval without prior
notice to the other Parties.
15.1. FERC APPROVAL:
15.1.1 The Parties acknowledge that FERC Approval is a
condition precedent to the occurrence of the
Satisfaction Date. "FERC Approval" means that FERC has
issued an order approving the Definitive Agreements and
satisfying the other requirements set forth in Section
15.1.3 as to which (1) rehearing of the order has been
denied or the time for requesting rehearing of the order
has expired and no request for rehearing has been filed
and (2) as of the date on which all other conditions
precedent to the occurrence of the Satisfaction Date
have been satisfied, no stay of the order has been
granted by FERC or a court of competent jurisdiction and
no motion or
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other request for stay of the order is then pending
before FERC or a court of competent jurisdiction.
15.1.2 The Parties understand that Edison, on the one hand, and
Enron, FPL and the Enron affiliates named as respondents
in the FERC Proceeding, on the other hand, for the
purpose of obtaining FERC Approval, shall jointly file
at FERC an offer of settlement pursuant to 18 C.F.R.
Section 385.602 within 15 days after the Master
Definitive Agreement has been executed or within such
other time period as may be agreed upon by Edison, Enron
and FPL.
15.1.3 FERC Approval, as contemplated herein, shall include not
only the reasonableness of the terms and provisions of
the Definitive Agreements but shall expressly include
acceptance of the rates provided for in each PPA, as
amended pursuant to the applicable Renewable Agreement
and the Definitive Agreements, under Section 205 of the
Federal Power Act, so that no further FERC approval or
FERC proceedings of any kind are required in connection
with the rates applicable to the amended PPAs and the
Projects; provided, however, that FERC approval of any
application related to the transmission facilities used
to deliver power from the Projects to Edison shall not
be a condition precedent to the occurrence of the
Satisfaction Date. The Section 205 application seeking
FERC Approval shall include a request that FERC's
acceptance of such rates shall have no precedential
effect as to any other power seller or contract that is
not expressly subject to the terms and conditions of the
Definitive Agreements or as to any of the Parties or PPA
Sellers with respect to other disputes that are not
addressed in the Definitive Agreements.
15.1.4 Nothing in this Article 15 shall prevent a PPA Seller or
Edison from seeking or opposing any action by the CPUC
that is generally applicable to QFs that would have the
effect, whether directly or indirectly, of changing a
rate or other provision of a PPA or other power purchase
agreement between Edison and a PPA Seller that has been
or continues to be subject to the jurisdiction of the
CPUC.
15.1.5 Nothing in this Article 15 or elsewhere in the
Definitive Agreements shall prevent, or be construed to
prevent, Edison or a PPA Seller from enforcing the terms
of a PPA, except as expressly provided in the Definitive
Agreements.
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15.1.6 Absent the agreement of the Parties to the proposed
change, the standard of review for changes by the FERC
to the rates and other terms of the PPAs, as amended,
shall be the "public interest" standard of review set
forth in United Gas Pipe Line Co. v. Mobile Gas Service
Corp., 350 U.S. 332 (1956) and Federal Power Commission
v. Sierra Pacific Power Co., 350 U.S. 348 (1956);
provided that nothing herein shall affect or modify any
provision of a PPA or of any other power purchase
agreement that provides for rate or administrative
changes based upon determinations of the CPUC that are
applicable generally to QFs.
15.2. CPUC APPROVAL:
15.2.1 The Parties acknowledge that CPUC Approval is a
condition precedent to the occurrence of the
Satisfaction Date. "CPUC Approval" means that the CPUC
has issued a final decision, no longer subject to
appeal, that approves the Definitive Agreements and
satisfies the other requirements set forth in Section
15.2.2. However, Edison in its sole discretion may
unilaterally waive CPUC Approval as to all or any
individual aspects of the Definitive Agreements
requiring such approval at any time by giving notice of
such waiver in writing to the affected PPA Sellers and
the other Parties hereto.
15.2.2 CPUC Approval shall require findings that the Definitive
Agreements and the rates provided for in such Definitive
Agreements, are reasonable and that payments made
pursuant to the PPAs, as modified by the PPA Amendments,
are fully recoverable in Edison's retail rates, subject
only to the CPUC's review of Edison's ongoing
administration of the PPAs, as amended.
15.2.3 Within fifteen (15) days of execution of the Master
Definitive Agreement or within such other time period as
may be agreed to by Edison, Enron and FPL, Edison will
seek CPUC Approval by filing an advice letter of the
type and in the manner contemplated by CPUC Decision
("D") No.98-12-066 (83 CPUC 2d 506, Dec. 17, 1998) or by
another appropriate filing if it is determined that
D.98-12-066 is inapplicable to the Definitive
Agreements.
15.3. BANKRUPTCY COURT APPROVAL:
15.3.1 The Parties acknowledge that Bankruptcy Court Approval
is a condition precedent to the occurrence of the
Satisfaction Date.
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"Bankruptcy Court Approval" means that the Bankruptcy
Court has issued an order approving the Definitive
Agreements and the PPA Notes that (1) is no longer
subject to a motion for re-argument under Bankruptcy
Rule 9023 and (2) which, as of the date on which all
other conditions precedent to the occurrence of the
Satisfaction Date have been satisfied, has not been
stayed by the Bankruptcy Court or by another tribunal
with jurisdiction in the matter. For purposes of this
Section 15.3.1, the Enron Bankruptcy shall be deemed to
include, in addition to the matters identified in
Section 2.5, the bankruptcies of any Enron affiliated
entities, whether mentioned in Section 2.5 or not, that,
prior to the Satisfaction Date, are in Chapter 11 or
another form of bankruptcy (but only to the extent that
such Enron affiliated entities have a property interest,
direct or indirect, in one or more of the Projects).
Bankruptcy Court Approval shall also include the
approval and confirmation by the Bankruptcy Court that
the PPA Notes, and Enron Wind Systems' obligations
thereunder, without amendment or modification,
constitute administrative expenses of the debtor's
estate, entitled to priority under Section 507(a)(1) of
Chapter 11 of the United States Bankruptcy Code, as
amended.
15.3.2 Enron shall promptly seek Bankruptcy Court Approval upon
execution of the Definitive Agreements. Edison, FPL, the
PPA Sellers, and their respective affiliates will take
such reasonable actions as Enron may request to support
such approval and will take no actions in opposition to
or inconsistent with the request for Bankruptcy Court
Approval.
15.4. SEC APPROVAL:
The occurrence of the Satisfaction Date is not conditioned upon
SEC approval or on any other action by the SEC.
16. STANDSTILL; STAY
16.1. The standstill provisions set forth in Section 16.2 shall remain
in effect for a period of thirty (30) days from the Effective
Date as to any proceeding in which a request for stay has been
submitted but not yet acted upon, but shall terminate (except
with respect to the FERC Proceeding as described below in this
Section 16.1) as to any matter in which the Parties' request for
stay has been denied in whole or in part. The Parties recognize
that the procedural schedule in the FERC Proceeding has been
suspended until January 22, 2003, and intend to seek an
extension of that suspension so that FERC may consider this
settlement; as to that proceeding, the
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standstill provisions of Section 16.2 shall remain in effect
unless and until an extension of the suspension is denied.
Except as to the matters described in Section 16.2, neither the
standstill nor the pendency of a request for stay pursuant to
the terms of the MOU shall require any of the Parties hereto to
refrain from any action in the FERC Proceeding, the SEC
Proceeding, the Cabazon Litigation or otherwise.
16.2. Pursuant to Section 16.1 above for the period specified, the
Parties agree to:
16.2.1 Refrain from initiating any new discovery of each other
or requiring responses from each other to existing
discovery in the SEC Proceeding, the FERC Proceeding and
in the Cabazon Litigation;
16.2.2 Extend day-for-day during the above-referenced period
the response dates for all outstanding discovery
requests previously served by Edison in the SEC
Proceeding and the FERC Proceeding;
16.2.3 Refrain from taking any further action with respect to
Edison's demand for adequate assurances or the Projects'
response to such demand.
16.3. In connection with the foregoing day-for-day extensions, the
Parties agree that in no case will any discovery response be due
sooner than eight (8) Business Days following termination of the
standstill and that no response to or production requested by
any motion to compel shall be due sooner than five (5) Business
Days following termination of the standstill.
16.4. Except insofar as any obligation set forth in this paragraph has
already been satisfied by a Party pursuant to its obligations
under Section 4(B) of the MOU, the Parties will, as soon as
practicable, cooperate and use their reasonable best efforts to
mutually seek a stay of the SEC Proceeding, the FERC Proceeding
and the Cabazon Litigation pending the obtaining or waiver of
the Required Regulatory Approvals; provided that the failure to
obtain any such stay will not, by itself, void the Definitive
Agreements, or any of them; and provided further that any stays
implemented pursuant to this paragraph shall terminate
automatically and without the further action of the Parties upon
the occurrence, if any, of the Termination Date. The Parties'
requests for stays in the SEC Proceeding and FERC Proceeding
shall include a request that all established deadlines in such
proceedings be extended day-for-day during the periods in which
the stays are in effect. The Parties' request for stay in the
Cabazon Litigation shall expressly request a continuance of the
trial date in that case to a date that is no earlier than 150
days following the termination, if any, of the stay, as
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well as a commensurate continuance of all then-existing
deadlines in the litigation.
16.5. Should the Court in the Cabazon Litigation decline to stay that
matter and/or continue the trial date and associated deadlines
as requested by the Parties, then the plaintiffs in the Cabazon
Litigation shall promptly dismiss their complaint against Edison
without prejudice and the parties to the Cabazon Litigation
shall enter into a tolling agreement for the purpose of tolling
any applicable statutes of limitations or defenses based on
similar time bars during the period commencing with the
dismissal of the complaint in the Cabazon Litigation and ending
when the plaintiffs therein first become entitled to reinstitute
their complaint following a failure of the settlement
memorialized in the Definitive Agreements.
17. GENERAL PROVISIONS
17.1. CONFIDENTIALITY:
17.1.1 The Parties agree that their negotiations (including the
prior negotiations as reflected in the MOU) and the
terms of the Definitive Agreements are and shall remain
confidential, except insofar as disclosure of the terms
and conditions of such negotiations or agreements is
necessary to achieve the purposes of such agreements. To
that end, voluntary disclosure may be made only as
necessary to obtain lender and other power seller or
participant or investor approval, FERC Approval, CPUC
Approval, Creditors' Committee and Bankruptcy Court
Approval, stays of the SEC and FERC Proceedings and the
Cabazon Litigation and such other required consents,
approvals and notices; provided that:
(i) if an existing confidentiality agreement,
protective order or similar obligation is
applicable, the Party making disclosure shall
notify the receiving party of the confidential
nature of the terms and conditions of the MOU
and Definitive Agreements and that the existing
confidentiality agreement or obligation is
applicable thereto;
(ii) if a confidentiality agreement or obligation is
not applicable thereto, the Party making
disclosure shall use reasonable efforts to first
obtain an appropriate confidentiality agreement
from the party to whom information concerning
the MOU and/or Definitive Agreements is
disclosed (and to advise the other Parties if it
is not able to do so prior to making
disclosure), or
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in the case of disclosure to a regulatory agency
or the Bankruptcy Court, for the purpose of
obtaining approval from such agency or Court,
seek and use its reasonable best efforts to
obtain confidentiality protection from the
reviewing agency or the Bankruptcy Court; and
(iii) in the case of any disclosure to a participant
or investor in any of the Projects, the Party
making disclosure shall be required only to
clearly mark all disclosure materials as
confidential and to advise the recipient thereof
in writing as to the confidential nature of such
materials and to further affirmatively state
that such materials may not be disclosed to
third parties by the recipient.
17.1.2 The draft of any request for a protective order of, or
confidential treatment by, an administrative agency or
by the Bankruptcy Court shall be provided to the
non-drafting Party sufficiently in advance of filing to
permit the non-drafting Party a reasonable opportunity
to review and comment upon the draft.
17.1.3 The Parties acknowledge that the Enron Creditors'
Committee and its advisors are already subject to
appropriate confidentiality obligations. Edison also
understands that, subject to appropriate confidentiality
procedures standard for such transactions in the
Bankruptcy Court context, disclosure may be made to
prospective purchasers (and their potential lenders and
advisors) in connection with a sale of the Projects or
an interest therein. Notwithstanding the foregoing, in
connection with (i) the proposed sale, assignment or
other transfer of a Project or of the interest of a
Party or its affiliate (or any interest of the Enron
Bankruptcy estate) in such Project to a third party, or
(ii) the proposed sale of Portland General Electric, a
Party shall be entitled to disclose the MOU and
Definitive Agreements to a potential purchaser, its
affiliates, potential lenders and advisors, provided
that the Party making, disclosure shall first obtain an
appropriate confidentiality agreement from the potential
purchaser. Further, a Party shall not be in breach of
its obligations under this Section 17.1 on account of
disclosure of any information subject to the provisions
of this Section 17.1 to the extent that such information
(i) becomes generally available to the public other than
as the result of a breach of this Master Definitive
Agreement by the disclosing Party; (ii) is obtained from
a third
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party not known to the receiving Party to be prohibited
from making disclosure or (iii) is required by
applicable law, order, regulation or ruling to be
disclosed publicly to, or is publicly disclosed by, a
governmental authority, including any court or
regulatory agency; and provided, further, that after the
Satisfaction Date, the Parties shall be entitled, in the
ordinary course of business, to disclose the Definitive
Agreements to any legal or financial advisor,
accountant, consultant, Project operator or manager,
taxing authority or Project property owner or lessor,
provided that the Party making such disclosure in the
ordinary course of business shall be required to clearly
mark all disclosure materials as confidential and to
advise the recipient thereof in writing as to the
confidential nature of such materials and to further
affirmatively state that such materials may not be
disclosed to third parties by the recipient.
17.2. Effect on PPAs: Except as provided in the Definitive Agreements,
all provisions of the PPAs shall remain in effect and unchanged.
Nothing herein shall be read to extend or reduce the term of any
PPA.
17.3. No Waiver: None of the provisions of the Definitive Agreements,
including this paragraph, shall be considered waived by a Party
unless such waiver is given in writing. The failure of any Party
to insist in any one or more instances upon strict performance
of any of the provisions of the Definitive Agreements or to take
advantage of any of its rights hereunder shall not be construed
as a waiver of any such provisions or the relinquishment of any
such rights for the future, but the same shall continue and
remain in full force and effect.
17.4. Further Agreements: This Master Definitive Agreement shall not
be amended, changed, modified, abrogated or superseded by a
subsequent agreement unless such subsequent agreement is in the
form of a written instrument signed by all of the Parties;
provided that an instrument which affects only certain of the
Parties shall be effective if signed by such Parties but shall
not be effective with respect to the rights and obligations of
any other Parties.
17.5. Entire Agreement; Conflict; Advice of Counsel; Fees and
Expenses: The Definitive Agreements constitute the entire
agreement of the Parties concerning the subject matter thereof
and supercede any and all prior negotiations, correspondence,
undertakings, and agreements between the Parties, including,
without limitation, the MOU, concerning the subject matter of
the Definitive Agreements. Notwithstanding the foregoing, to the
extent there is a conflict or inconsistency between the
provisions of this Master Definitive Agreement and the
provisions of a PPA
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Amendment, the terms of this Master Definitive Agreement shall
control. The Parties have read the Definitive Agreements, have
had the advice and assistance of legal counsel in entering into
them, and have not been influenced to any extent whatsoever by
any representations or statements made by any Party other than
those in the Definitive Agreements. The Parties, and each of
them, shall bear their own attorneys' fees and costs arising
from or pertaining to (i) the negotiation, preparation and
implementation of the Definitive Agreements and (ii) the
obtaining of the Required Regulatory Approvals.
17.6. Successors and Assigns: This Master Definitive Agreement shall
be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns.
17.7. Construction: The Definitive Agreements have been drafted by all
of the Parties and shall not be construed against any Party as
the sole drafter or pursuant to any other rule of construction.
17.8. Governing Law: The Definitive Agreements shall be governed by
and construed under the laws of the State of California without
regard to its conflict of laws principles.
17.9. Headings: The headings used in the Definitive Agreements are for
convenience and reference purposes only and do not themselves
constitute any of the terms of the Definitive Agreements.
17.10. No Precedent; Use in Litigation; No Third Party Beneficiaries:
Each Party agrees that the Definitive Agreements arise from
unique facts and circumstances and, as such, the various
provisions of the Definitive Agreements shall not, except as
expressly provided for herein, be used as evidence relevant to,
or the basis for disputing the validity or appropriateness of,
any determination of avoided costs before the FERC, CPUC or any
court or other judicial or quasi-judicial body, and nothing
herein may be used as an admission against any Party. Further,
the Parties do not admit liability as to any of the Claims
released herein and acknowledge that the Definitive Agreements
establish no precedents with respect to other parties selling
pursuant to other power purchase agreements, with respect to
other power purchase agreements, or with respect to disputes
other than those that are referenced in this Master Definitive
Agreement. Except for the purpose of obtaining the Required
Regulatory Approvals or as otherwise expressly authorized by
this Master Definitive Agreement, including with respect to
obtaining a stay of the SEC Proceeding pursuant to Section 16.4,
no Party will introduce or otherwise use the Definitive
Agreements or any of their terms or conditions in any judicial
or administrative proceeding or to influence any governmental
action, other than for the purpose of effectuating and
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enforcing the terms and conditions thereof. The Definitive
Agreements shall not be construed as creating any rights or
benefits of any kind or nature whatsoever in any third party or
class of persons not parties to the Definitive Agreements,
except to the extent that the Master Definitive Agreement, by
its express terms, inures to the benefit of persons or entities
not signatories hereto with respect to the provisions of Article
11 only.
17.11. Obligations Severable: Each Party shall be severally, and not
jointly, liable for any failure to perform its obligations under
the Definitive Agreements. Notwithstanding the foregoing,
nothing in this Section 17.11 or elsewhere in the Definitive
Agreements shall be construed as either creating or eliminating
such joint and several liability of a Party as may already exist
or not exist under a particular PPA.
17.12. NOTICE:
17.12.1 Any notice, demand, or request permitted or required
under this Master Definitive Agreement shall be
delivered in writing by overnight delivery service,
United States Mail, fax and/or electronic mail. Notice
given by overnight delivery or mail shall be effective
upon actual receipt. Notice given by fax or electronic
mail shall be effective upon actual receipt if received
during the recipient's Business Day, or at the beginning
of the recipient's next Business Day after receipt if
not received prior to the cessation of the recipient's
previous Business Day.
17.12.2 The names and addresses for notice specified in
Attachment D may be changed from time to time by written
notice by a Party to the other Parties without a need
for an amendment to this Master Definitive Agreement.
18. EXECUTION
This Master Definitive Agreement, as well as each PPA Amendment, shall
be executed by exchanging counterpart signature pages by facsimile as
provided in Section 17.12 above.
Each Party represents and warrants that the person who signs below on
behalf of the Party has authority to execute this Master Definitive
Agreement on behalf of such Party and to bind such Party to this Master
Definitive Agreement.
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SOUTHERN CALIFORNIA EDISON COMPANY ENRON WIND LLC
By: /s/ Alan J. Fohrer By:
--------------------------- ------------------------
Alan J. Fohrer (print)
Its Chief Executive Officer ------------------------
Its
Date: January 15, 2003 Date:
ENRON WIND SYSTEMS, LLC
By:
------------------------
(print)
------------------------
Its
Date:
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SOUTHERN CALIFORNIA EDISON COMPANY ENRON WIND LLC
By: By: /s/ Eric D. Gadd
--------------------------- ------------------------
Alan J. Fohrer Eric D. Gadd
Its Chief Executive Officer Its President & CEO
Date: January 15, 2003 Date: January 15, 2003
ENRON WIND SYSTEMS, LLC
By: /s/ Eric D. Gadd
------------------------
Eric D. Gadd
Its President & CEO
Date: January 15, 2003
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CABAZON POWER PARTNERS LLC ZWHC LLC
By: /s/ Eric D. Gadd By: /s/ Eric D. Gadd
--------------------------- ------------------------
(print) Eric D. Gadd (print) Eric D. Gadd
Its President & CEO Its President & CEO
Date: January 15, 2003 Date: January 15, 2003
PAINTED HILLS WIND DEVELOPERS
By: Enron Wind Systems LLC
Its managing joint venturer
By: /s/ Eric D. Gadd
---------------------------
(print) Eric D. Gadd
Its President & CEO
Date: January 15, 2003
ZOND WIND SYSTEMS PARTNERS LTD., SERIES 85-A
By: Zond Windsystems Management III LLC
Its general partner
By: /s/ Eric D. Gadd
---------------------------
(print) Eric D. Gadd
Its President & CEO
Date: January 15, 2003
ZOND WIND SYSTEMS PARTNERS LTD., SERIES 85-B
By: Zond Windsystems Management IV LLC
Its general partner
By: /s/ Eric D. Gadd
---------------------------
(print) Eric D. Gadd
Its President & CEO
Date: January 15, 2003
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ESI SKY RIVER LIMITED PARTNERSHIP ESI VG LIMITED PARTNERSHIP
By: ESI Sky River, Inc., By: ESI Victory, Inc.,
Its general partner Its general partner
By: /s/ Edward F. Tancer By: /s/ Edward F. Tancer
--------------------------- ------------------------
(print) Edward F. Tancer (print) Edward F. Tancer
Its secretary Its secretary
Date: January 15, 2003 Date: January 15, 2003
SKY RIVER PARTNERSHIP
By: ESI Sky River Limited Partnership, By: Sky River LLC,
Its general partner Its general partner
By: ESI Sky River, Inc., By:
Its general partner ------------------------
(print)
------------------------
By: /s/ Edward F. Tancer Its
---------------------------
Edward F. Tancer Date:
Its secretary ------------------------
Date: January 15, 2003
VICTORY GARDEN PHASE IV PARTNERSHIP
By: ESI VG Limited Partnership Victory Garden LLC
Its general partner Its general partner
By: ESI Victory, Inc., (print)
------------------------
Its general partner Its
By: /s/ Edward F. Tancer Date:
--------------------------- ------------------------
Edward F. Tancer
Its secretary
Date: January 15, 2003
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ESI SKY RIVER LIMITED PARTNERSHIP ESI VG LIMITED PARTNERSHIP
By: ESI Sky River, Inc., By: ESI Victory, Inc.,
Its general partner Its general partner
By: By:
--------------------------- ------------------------
(print) (print)
Its Its
------------------------ ---------------------
Date: Date:
--------------------------- ------------------------
SKY RIVER PARTNERSHIP
By: ESI Sky River, Limited Partnership By: Sky River LLC,
Its general partner Its general partner
By: ESI Sky River, Inc., By: /s/ Eric D. Gadd
Its general partner ------------------------
(print) Eric D. Gadd
By: Its President & CEO
--------------------------- Date: January 15, 2003
(print)
Its
Date:
---------------------------
VICTORY GARDEN PHASE IV PARTNERSHIP
By: ESI VG Limited Partnership Victory Garden LLC
Its general partner Its general partner
By: ESI Victory, Inc., By: /s/ Eric D. Gadd
Its general partner ------------------------
(print) Eric D. Gadd
By: Its President & CEO
--------------------------- Date: January 15, 2003
(print)
--------------------------
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ATTACHMENT A
FORECAST AS-AVAILABLE CAPACITY
PRICE ($/kW-vr)
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QFID PPA SELLER'S NAME CURRENT ADJUSTED
- ---- ------------------------------------------------ -------------- --------------
6004 Cabazon Power Partners LLC $ 174.50 $ 105.00
6039 Enron Wind Systems, LLC $ 169.00 $ 89.00
6040 Enron Wind Systems, LLC $ 169.00 $ 90.00
6041 Enron Wind Systems, LLC $ 169.00 $ 99.00
6042 Enron Wind Systems, LLC $ 180.00 $ 100.00
6043 Zond Wind Systems Partners Ltd., Series 85A $ 180.00 $ 106.00
6044 Zond Wind Systems Partners Ltd., Series 85B $ 194.00 $ 124.00
6065 Sky River Partnership $ 235.00 $ 145.00
6066 Sky River Partnership $ 235.00 $ 138.00
6067 Sky River Partnership $ 235.00 $ 125.00
6102 Victory Garden Phase IV Partnership $ 206.00 $ 125.00
6103 Victory Garden Phase IV Partnership $ 206.00 $ 131.00
6104 Victory Garden Phase IV Partnership $ 206.00 $ 115.00
6105 ZWHC LLC $ 206.00 $ 122.00
6106 ZWHC LLC $ 206.00 $ 122.00
6107 ZWHC LLC and Victory Garden Phase IV Partnership $ 206.00 $ 123.00
6108 ZWHC LLC $ 206.00 $ 119.00
6111 Enron Wind Systems, LLC $ 194.00 $ 115.00
6112 Painted Hills Wind Developers $ 180.00 $ 104.00
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ATTACHMENT B
FINAL PAYMENT
AMOUNT AS OF
QFID PPA SELLER'S NAME JANUARY 31, 2002
- ---- ------------------------------------------------ ----------------
6004 Cabazon Power Partners LLC $ 3,523,960.72;
6039 Enron Wind Systems, LLC 536,428.62
6040 Enron Wind Systems, LLC 432,518.82
6041 Enron Wind Systems, LLC 380,741.50
6042 Enron Wind Systems, LLC 406,095.23
6043 Zond Wind Systems Partners Ltd., Series 85-A 954,615.92
6044 Zond Wind Systems Partners Ltd., Series 85-B 1,399,997.75
6105 ZWHC LLC 423,571.00
6106 ZWHC LLC 445,362.14
6107 ZWHC LLC and Victory Garden Phase IV Partnership 610,195.87
6108 ZWHC LLC 436,968.11
6111 Enron Wind Systems, LLC 369,598.49
6112 Painted Hills Wind Developers 940,073.20
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$ 10,860,127.37
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ATTACHMENT C
Form of Estoppel Letter
[date]
To: [purchaser/assignee]
Re: [PPA] between [seller] ("PPA Seller") and Southern California Edison Company
("Edison") dated as of [________] as amended as of the date hereof ("PPA")
Ladies and Gentlemen:
Edison understands that [purchaser/assignee] ("Purchaser") intends to
acquire all right title and interest of [Enron entity] ("XYZ") as the [general
partner] in [name of partnership] ("Partnership") which owns [in whole or in
part] and operates that certain wind powered electric generating project
[specify project] ("Project"). Edison is the purchaser of all of the electric
output of the Project pursuant to the PPA, and, in connection with the
foregoing, Edison hereby certifies to Purchaser as follows as of the date
hereof:
1. Attached hereto as Exhibit A is a true, complete and accurate copy of
the PPA and all amendments and modifications thereto as of the date
hereof.
2. The PPA is in full force and effect, there are no amendments or
modifications of any kind to the PPA except as referenced above, and
there are no other promises, agreements, understandings or commitments
between PPA Seller and Edison relating to the purchase of the electric
output of the Project.
3. To the best of Edison's actual knowledge without investigation, PPA
Seller has fulfilled all of its obligations under the PPA and there are
no uncured defaults, events of default, unsatisfied conditions or other
breaches (or facts or circumstances that, with the passage of time or
the giving of notice, or both, will or could constitute a default, event
of default or breach) under the PPA.
4. The undersigned representative of Edison is duly authorized to execute
this instrument on behalf of Edison.
IN WITNESS WHEREOF, Edison has executed this instrument as of the date
first written above.
SOUTHERN CALIFORNIA EDISON COMPANY
By:
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Title:
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ATTACHMENT D
NOTICE
Notices under this Master Definitive Agreement shall be given in
writing via fax and/or electronic mail as specified below and
shall be effective upon receipt:
If to Edison:
Lars E. Bergmann
Director of QF Resources
Southern California Edison Company
2244 Walnut Grove Ave.
Rosemead, California 91770
FAX: 626-302-1103
email: bergmale@sce.com
with a copy to:
James B. Woodruff
Senior Attorney
Southern California Edison Company
2244 Walnut Grove Ave.
Rosemead, California 91170
FAX: 626-302-1904
email: woodrujb@sce.com
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If to Enron, Sky River Partnership, Victory Garden Phase
IV Partnership, Cabazon Power Partners LLC, Enron Wind
Systems, LLC, Zond Wind Systems Partners Ltd., Series
85-A, Zond Wind Systems Partners Ltd., 85-B, ZWHC LLC,
or Painted Hills Wind Developers:
Jimmie Williams
Managing Director
Enron Corp.
1400 Smith Street
Houston, Texas 77002
FAX: 713-646-2623
email: jimmie.williams@enron.com
Eric Gadd
Enron Wind, LLC
1400 Smith Street
Houston, Texas 77002
FAX: 713-646-3225
email: eric.gadd@enron.com
With copies to:
David M. Koogler
Assistant General Counsel
Enron Corp.
1400 Smith Street
Houston, Texas 77002
FAX: 713-646-3092
email: david.koogler@enron.com
John A. Lamb
General Counsel
Enron Wind LLC
520 S. Grand Avenue, Suite 610
Los Angeles, California 90071
FAX: 213-452-4888
e-mail: john.lamb@enron.com
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and
John G. Klauberg
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
FAX: 212-424-8500
email: jklauber@llgm.com
If to FPL, Sky River Partnership or Victory Garden Phase
IV Partnership:
Mark Palanchian
Director
FPL Energy Power Marketing, Inc.
117 70 U. S. Highway One
North Palm Beach, FL 33408
FAX: 561 625-7501
email: mark_palanchianC4pl.com
With copies to:
Edward F. Tancer
General Counsel FPL Energy, LLC
700 Universe Blvd.
Juno Beach, FL 33408
FAX: 561-691-7305
email: ed_tancer@fpl.com
Joel D. Newton
Senior Attorney
FPL Energy, LLC
801 Pennsylvania Ave., NW
Suite 220
Washington, DC 20004
FAX: 202-347-7076
email: joel_ newton@fpl.com
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and
Clifford M. Naeve
Skadden, Arps, Slate, Meagher and Flom LLP
1440 New York Avenue, NW
Washington, DC 20005
FAX: 202-371-7926
email: mnaeve@skadden.com
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ATTACHMENT E
AMENDMENT NO. [__] TO THE
POWER PURCHASE CONTRACT
BETWEEN
SOUTHERN CALIFORNIA EDISON COMPANY
AND
[____]
QFID [____]
1. PARTIES
The Parties to this Amendment No. [___] ("Amendment") to the Power
Purchase Contract ("Contract") between Southern California Edison
Company and [_] are SOUTHERN CALIFORNIA EDISON COMPANY ("Edison"), a
California corporation, and [_] ("Seller"), a [_] Edison and Seller are
sometimes referred to herein individually as a "Party" and jointly as
the "Parties."
2. RECITALS
The Parties enter into this Amendment with reference to the following
facts, among others:
2.1. On [___], Edison and Seller or Seller's predecessor in interest
executed the Contract, which, among other things, provides for
the sale to Edison of electrical power generated by a wind
turbine project identified by Edison as QFID [___] (the
"Project").
2.2. [The Contract has previously been amended.]
2.3. Certain claims related to the Contract have been raised in civil
litigation in California superior court, in regulatory
proceedings pending before the Securities and Exchange
Commission and/or the Federal Energy Regulatory Commission
("FERC"), and/or in proceedings in the United States Bankruptcy
Court involving Enron Corp and/or affiliates of Enron Corp
(collectively, the "Disputes"). The Disputes concern, among
other things, the status of the Project as a qualifying facility
within the meaning of the Public Utility Regulatory Policies Act
of 1978 ("PURPA") and FERC's regulations implementing PURPA.
2.4. Edison and Seller, acting on behalf of itself and (in its
capacity as Project Manager under the Contract) all others, if
any, that hold an ownership or other interest in the Project, or
any portion thereof, have agreed to resolve the Disputes as they
apply to the Contract pursuant to the terms of a "Master
Definitive Agreement," dated January 15, 2003 ("Master
Definitive Agreement"), which is being concurrently executed by
Edison,
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Seller and other parties and is hereby incorporated herein by
this reference. In the Master Definitive Agreement, Edison and
Seller have agreed, among other things, to execute this
Amendment for the purpose of implementing certain terms and
conditions of the Master Definitive Agreement.
3. AGREEMENT
In consideration of the promises, mutual covenants and agreements set
forth herein, and for other good and valuable consideration as set forth
herein, the Parties, upon the occurrence of the Satisfaction Date (as
defined below) pursuant to the terms of the Master Definitive Agreement,
hereby amend the Contract effective as of the Effective Date (as defined
below), as follows:
3.1. Waived Qualifying Facility Requirements. Section 4.4.12 of the
Contract [revise if applicable QF warranty terms are contained
in a section other than 4.4.12] is hereby replaced in its
entirety with the following new Section 4.4.12:
"4.4.12 Notwithstanding any other provision of this Contract,
effective on and after the Satisfaction Date, as defined
in Section 4 of Amendment No. [_], the Project shall not
be required to satisfy any ownership or size limitation
requirements applicable to Qualifying Facilities,
including, without limitation, 16 U.S.C. Section
796(17)(A)(ii), 16 U.S.C. Section 796(17)(C)(ii) and 18
C.F.R. Sections 292.204(a)(1) and 292.206 (collectively,
the "Waived QF Requirements"). Notwithstanding the
foregoing, and although the Project will no longer be
required to comply with the Waived QF Requirements and
therefore will no longer be required to be or certify as
a Qualifying Facility under the Public Utility
Regulatory Policies Act of 1978 ("PURPA") and the
regulations of the Federal Energy Regulatory Commission
("FERC") implementing PURPA, the Project will, except
for the Waived QF Requirements, continue to generate
power for sale to Edison under the Contract in the
manner required under 16 U.S.C. Section 796(17)(A)(i),
16 U.S.C. Section 796(17)(B), and 16 U.S.C. Section
796(17)(C)(i) (but not including, in addition to the
Waived QF Requirements, any Qualifying Facility
certification requirements) of PURPA and the FERC
regulations implementing the foregoing provisions
identified in this sentence, 18 C.F.R. Section
292.204(b), as wind power production facilities, and
further, that with the exception of the Waived QF
Requirements, this Contract shall continue to be
administered by Edison as a Qualifying Facility
contract."
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3.2. Reduction in Capacity Price. Section 9.1.1.2 [revise if
applicable capacity terms are contained in a Section other than
9.1.1.2] of the Contract is hereby amended to add the following
new subsections (c) and (d):
"(c) Notwithstanding Section 9.1.1.2 (b) above, effective for
deliveries made beginning at 12:01 a.m. Pacific Time on
December 1, 2002 through and including the last day of
the Contract Term, the time-differentiated D variable
shall be calculated using an annual as-available
capacity rate of [the project-specific adjusted $/kw-yr
capacity price from Attachment A to the Master
Definitive Agreement] in lieu of the rate that would
otherwise apply under Section 9.1.1.2(b)."
"(d) Promptly after the Satisfaction Date, as defined in
Section 4 of Amendment No. [ ], any capacity ---
payments previously made by Edison to Seller for
deliveries made on and after December 1, 2002 which were
based upon the capacity price in effect prior to the
occurrence of the Satisfaction Date shall be
recalculated using the capacity price as revised
pursuant to the foregoing Section 9.1.1.2(c). [revise
cross-reference as necessary]. The difference (without
interest) between the capacity payment(s) actually made
for such deliveries and the payments that would have
been made using the adjusted capacity price specified in
Section 9.1.1.2(c) shall be applied as a credit to
Edison against the next payment due to Seller for both
Energy and capacity pursuant to the Contract; provided,
however, that if the amount of such credit to Edison
exceeds the full amount owing for the first payment due
to Seller after the Satisfaction Date, Edison shall take
a credit equal to the full amount owing for the first
payment due Seller after the Satisfaction Date, and
shall apply the remaining balance of the credit as an
offset to each successive payment due to Seller by
Edison thereafter in the same manner until the credit is
fully utilized (all such offsets accruing as of the
Satisfaction Date). If the credit owed Edison by Seller
has not been fully utilized by the conclusion of three
successive billing cycles after the Satisfaction Date,
then Edison may, at its option, invoice Seller for the
remaining, unutilized portion of the credit, which
invoice shall be paid by Seller within ten (10) days of
receipt."
3.3. Energy Pricing. New Sections 9.3.1 through 9.3.5 [revise
cross-reference as necessary] are added to the Contract as
follows:
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"9.3.1 In the event that the Commission changes the applicable
rate for Energy (including, but not limited to, changes
to the Commission-approved SRAC rate) that is generally
applicable, during any part of the remaining term of the
Contract, to those entities owning renewable Qualifying
Facilities that signed a Renewable Agreement (as defined
below) and is applicable under this Contract, then, on
the date on which such change becomes effective, and
continuing until such time as such rate is no longer
applicable pursuant to the terms of this Contract, as
amended, the Energy rate for power purchases made
pursuant to the Contract shall, without further action
by the Parties or otherwise, be the revised rate adopted
by the Commission."
"9.3.2 Nothing herein shall preclude any Party from seeking
rehearing or other appropriate review of any Commission
order(s) or decision(s) effecting a change in rate(s)
for Energy sales under the Contract or from fully
participating in any Commission proceedings pertaining
to such change or proposed change."
"9.3.3 Notwithstanding the provisions of Sections 9.3.1 and
9.3.2 above, nothing in those sections shall be
construed as modifying or diminishing any rights or
obligations of the Parties under the Energy rate
provisions of the Parties' Renewable Agreement,
including, but not limited to, the provisions therein
applicable to the Fixed Rate associated with the Fixed
Rate Period (as those terms are defined in the Renewable
Agreement), nor shall anything in Sections 9.3.1 and
9.3.2 be construed as conferring upon the Commission any
rate setting authority that it does not already possess
with respect to the Contract, as amended pursuant to the
Renewable Agreement."
"9.3.4 The term 'SRAC' as used herein shall have the same
meaning as in Section 4.35 of the Master Definitive
Agreement (as defined in Amendment No. ___ to this
Contract) and the term 'Renewable Agreement' shall have
the same meaning as in Section 2.3 of the Master
Definitive Agreement."
4. EFFECTIVE DATE; SATISFACTION DATE
Upon the occurrence of the Satisfaction Date, this Amendment shall
become effective as of the Effective Date. "Satisfaction Date" shall
have the same meaning as that term has in Article 6 of the Master
Definitive Agreement and "Effective Date" shall have the same meaning as
in Section 5.1 of the Master Definitive Agreement.
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5. OTHER TERMS AND CONDITIONS
5.1. None of the provisions of this Amendment, including this
paragraph, shall be considered waived by either Party except
when such waiver is given in writing. The failure of either
Party to insist in any one or more instances upon strict
performance of any of the provisions of this Amendment or to
take advantage of any of its rights hereunder shall not be
construed as a waiver of any such provisions or the
relinquishment of any such rights for the future, but the same
shall continue and remain in full force and effect.
5.2. This Amendment shall not be amended or modified except by a
writing signed by both Parties.
5.3. This Amendment shall be binding upon and inure to the benefit of
the Parties hereto and their respective successors and assigns.
5.4. This Amendment is the result of negotiation and each Party has
participated in its preparation. Accordingly, any rules of
construction to the effect that an ambiguity is to be resolved
against the drafting party shall not be employed in the
interpretation of this Amendment.
5.5. This Amendment shall be interpreted and governed under the laws
of the State of California (without giving effect to choice of
laws provisions that might apply the law of a different
jurisdiction).
5.6. Except as expressly amended hereby, all the terms, definitions
and conditions contained in the Contract, as amended, shall
remain in full force and effect, and apply to this Amendment as
though incorporated herein.
5.7. Each Party represents and warrants that the person who signs
below on behalf of such Party has received all requisite
authorizations required to execute this Amendment on behalf of
such Party and to bind such Party to the Amendment. Without in
any way limiting the foregoing, Seller represents and warrants
that it has sufficient authority to execute this Amendment on
behalf of itself and all other parties, if any, that hold an
ownership or other interest in the Project, or any portion
thereof, and that this Amendment will represent a binding
obligation upon the Project and all of its owners in accordance
with its terms.
5.8. This Amendment is and shall remain confidential pursuant to the
confidentiality terms of Section 17.1 of the Master Definitive
Agreement.
5.9. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original document and which together
shall constitute a single instrument.
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[seller ],
a [_________________]
By:
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Name:
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Title:
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Date:
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SOUTHERN CALIFORNIA EDISON COMPANY,
a California corporation
By:
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Name:
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Title:
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Date:
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