ASSIGNMENT AND CONSENT
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THIS ASSIGNMENT AND CONSENT is entered into as of June 26, 1998 by and
among CCF-1, INC., a Connecticut corporation with a place of business at 355
Research Parkway, Meriden, Connecticut 06450-1007 ("CCF-1"), THE HARTFORD
STEAM COMPANY, a Connecticut corporation with a principal place of business
at 100 Columbus Boulevard, Hartford, Connecticut 06144-1500 ("HSC"), and THE
CONNECTICUT LIGHT AND POWER COMPANY, a specially chartered Connecticut
corporation and a public service company with a principal place of business
at 107 Selden Street, Berlin, Connecticut 06037 ("CL&P"), and, as to matters
covered by their signature thereto, the CCF-1 Affiliates identified on
Schedule 1 (the "CCF-1 Affiliates").
WHEREAS, CCF-1 and CL&P entered into a Termination and Release
Agreement dated as of December 15, 1997, which was amended by an Amendment
to the Termination and Release Agreement entered into by CCF-1 and CL&P made
as of February 28, 1998 (as so amended, the "Agreement"), which provided,
INTER ALIA, for certain payments to be made by CL&P to CCF-1 and for CCF-1
to fulfill certain obligations to CL&P; and
WHEREAS, CL&P, CCF-1, certain affiliates of CCF-1 and State Street Bank
& Trust Company, as trustee, entered into a CL&P Document Termination
Agreement dated as of December 17, 1997, which was amended and restated as
of February 28, 1998 (as so amended and restated, the "Termination
Agreement"), which also, INTER ALIA, provided for CL&P to make certain
payments to CCF-1 and for CCF-1 to fulfill certain obligations to CL&P; and
WHEREAS, CCF-1 and CL&P entered into a letter agreement dated February
28, 1998 regarding the amount of the payments and certain O&M charges
payable by CCF-1, a copy of which is attached is Exhibit A (the "Letter
Agreement"); and
WHEREAS, in connection with the sale and transfer of certain assets of
the Facility (as defined in Appendix A to the Agreement and the Termination
Agreement) by CCF-1 to HSC, CCF-1 desires to assign its rights to payment
under the Agreement, the Termination Agreement and the Letter Agreement
(collectively, the "Agreements") to HSC; and
WHEREAS, under the Agreements, CCF-1 has certain continuing obligations
to CL&P for Indemnified Claims, contingent royalties, and O&M payments,
which CCF-1 is required to impose on any transferee of the assets of CCF-1,
as a condition precedent to transfer; and
WHEREAS, HSC desires that CL&P consent to such assignment and has
agreed to assume the aforesaid CCF-1 obligations to CL&P, provided each
party gives certain assurances to HSC upon which HSC can rely in purchasing
the Facility from CCF-1. In addition, CCF-1 desires that CL&P release CCF-1
and the CCF-1 Affiliates from the obligations being assumed by HSC;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and assurances set forth herein and in reliance thereon, and for
$1.00 and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. ASSIGNMENT. Subject to Section 11 hereof, CCF-1 does hereby
sell, assign, transfer, convey, set over and deliver to HSC, its successors
and assigns, all payments and all rights in connection therewith provided to
be made by CL&P to CCF-1 under the Agreements (and particularly as set forth
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in Section 2.03 of the Agreement and Section 2.03 of the Termination
Agreement) due and payable after the Closing of the sale of certain assets
of the Facility by CCF-1 to HSC, such payments being herein called the
"Payments."
2. ASSUMPTION BY HSC. In consideration of the assignment of
CCF-1's rights under the Agreements, as set forth in Section 1, HSC, in the
place and stead of CCF-1, hereby assumes and agrees to perform and discharge
all continuing obligations of CCF-1 to CL&P under the Agreements, as
particularly set forth in (a) paragraphs (ii) and (iii) of Section 2.03 and
Section 5.07 of the Agreement, (b) Sections 3.01 and 3.02 of the Termination
Agreement, and (c) the annual O&M charges referred to in the second
paragraph of the Letter Agreement. This assumption of CCF-1's obligations
by HSC is herein called the "HSC Assumption."
3. CONSENT BY CL&P. Subject to the payment in full to the
Connecticut General Life Insurance Company ("CIGNA") of all of CCF-1's
indebtedness pursuant to the terms of a letter of this date from CIGNA to
CCF-1 concerning "Payment of Senior Secured Notes," CL&P hereby consents to
the assignment provided herein, agrees to make the Payments to HSC in
accordance with the terms of the Agreements instead of to CCF-1, and
acknowledges that the amounts of the Payments, as of the date hereof, are as
set forth on SCHEDULE 2 attached hereto.
4. MUTUAL ASSURANCES OF CCF-1, CL&P AND HSC. CCF-1, CL&P and
HSC agree as follows:
(a) To the knowledge of the officers of CCF-1 and subject to
the limitations set forth in Section 5.1 of the Asset Purchase Agreement of
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this date between CCF-1, HSC and KENETECH Facilities Management, Inc., CCF-
1, by its signature to Schedule 1 to this Assignment and Consent, warrants
to HSC all of the representations and covenants made to CL&P set forth in
the Agreement, regarding the obtaining of all necessary authorizations and
consents to effect all transactions contemplated by the Agreement.
(b) To the knowledge of the officers of CCF-1 and subject to
the limitations set forth in Section 5.1 of the Asset Purchase Agreement of
this date between CCF-1, HSC and KENETECH Facilities Management, Inc., CCF-
1, by its signature to Schedule 1 to this Assignment and Consent, represents
to HSC that the only potential parties having claims which could give rise
to Indemnified Claims, as defined in the Agreements, are parties contracting
with CCF-1, CNF Industries, Inc., or Flagg Energy Development Corporation
with respect to the Facility, and that (i) to its knowledge, the only such
claims presently existing are being settled or discharged this date and (ii)
it is aware of no present conditions or events that are likely to give rise
to Indemnified Claims in the future.
(c) CL&P represents that the only written notice it has
received of any assignment of, or claim to, the Payments, is the notice of
the security interest of CIGNA, and direction to pay State Street Bank and
Trust Company, as Trustee for CIGNA, and that, to the best of its knowledge,
it has not been advised orally by any potential claimant of any other actual
or potential claim to the Payments.
(d) HSC acknowledges that CL&P has accepted, without
independent verification or inquiry, the representations of CCF-1 and the
CCH-1 Affiliates set forth in paragraphs (a) and (b) above.
(e) Except for claims covered by the HSC Assumption, CL&P
hereby (i) waives any and all claims it may have against CCF-1 which could
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give rise to a right of offset by CL&P against the Payments (but CL&P does
not waive any failure by HSC to meet its obligations under the HSC
Assumption), and (ii) waives any defenses CL&P may have to its making of the
Payments arising out of (x) any representations, act, or failure to act on
the part of CCF-1 in connection with any CL&P Documents terminated by the
Agreements, (y) the ability of CCF-1 to repower and resume operations of the
Facility on a timely basis so as to avoid a claim of breach by CL&P under
the CL&P Documents, or (z) the operation of the Facility prior to the
Termination Date.
5. CL&P ACCEPTANCE OF HSC AND RELEASE OF CCF-1 AND CCF-1
AFFILIATES. CL&P, for itself and on behalf of its successors and assigns,
hereby agrees to accept performance by HSC of CCF-1's continuing obligations
under the Agreements pursuant to the HSC Assumption and therefore waives,
releases and forever discharges each of CCF-1, CNF, Flagg Energy Development
Corporation, a Delaware corporation ("FEDCO"), KENETECH Corporation, a
Delaware corporation ("KENETECH"), KENETECH Energy Systems, Inc., a Delaware
corporation ("KESI") and KENETECH Facilities Management, Inc., a Delaware
corporation ("KFM" and, together with CCF-1, CNF, FEDCO,, KENETECH and KESI,
the "CCF-1 Entities"), and each of their respective shareholders, directors,
officers, employees, agents and attorneys, and all and each of their
respective successors and assigns from any and all claims, mature or
otherwise, which it may have now or in the future for damages, losses, costs
or expenses, liabilities or payments due which arise under or in connection
with the Agreement, the Termination Agreement, the Letter Agreement or the
Facility.
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6. CONSENT TO RELEASE BY HSC. HSC hereby acknowledges that CL&P
has released CCF-1 and the CCF-1 Affiliates, and consents to such action by
CL&P. HSC hereby agrees that CL&P's reliance on the representations of CCF-
1, and the release of CCF-1 and CCF-1 Affiliates, does not, and shall not,
in any way impair, diminish or affect the CCF-1 obligations assumed by HSC
under the HSC Assumption.
7. FURTHER DOCUMENTS. CCF-1 agrees to provide to HSC all such
further assignments, transfers, conveyances and other documents and
instruments as may be necessary or appropriate to transfer and vest fully in
HSC all rights to all payments now or hereafter coming due to CCF-1 and to
HSC under the Agreements.
8. BENEFIT AND BURDEN. This Assignment and Consent shall be
binding upon and shall inure to the benefit of each of the parties hereto
and their respective successors and assigns, and shall be governed by the
laws of the State of Connecticut.
9. AMENDMENTS. This Assignment and Consent may not be amended,
supplemented or otherwise modified except by an instrument in writing signed
by each of the parties hereto.
10. COUNTERPARTS. This Assignment and Consent may be executed in
any number of counterparts, all of which taken together shall constitute one
and the same instrument.
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11. EFFECTIVE DATE. This Assignment and Consent shall become
effective if and when, and only if and when, the closing of the sale of
certain assets of the Facility by CCF-1 to HSC occurs. If such closing does
not occur by July 31, 1998, this Assignment and Consent shall be null and
void and of no force or effect whatsoever.
IN WITNESS WHEREOF, this Assignment and Consent has been executed on
behalf of each party by its duly authorized officer.
THE CONNECTICUT LIGHT AND POWER CCF-1, INC.
COMPANY
By: S/ James L. Ward By: S/ Scott J. Taylor
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Name: James L. Ward Name: Scott J. Taylor
Its Manager, Cogeneration Its Vice President
Administration
Duly Authorized Duly Authorized
THE HARTFORD STEAM COMPANY
By: S/ Anthony C. Mirabella
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Name: Anthony C. Mirabella
Its Sr. Vice President
Duly Authorized
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SCHEDULE 1
Each of the undersigned hereby for itself consents to the foregoing
assignment, confirms the assurances set forth in Section 4(a) and 4(b), and
acknowledges that it has no claim or right to the Payments described
therein.
CNF INDUSTRIES, INC., a Delaware corporation with a principal place of
business at 355 Research Parkway, Meriden, Connecticut 06450-1007
By: S/ Scott J. Taylor
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Scott J. Taylor
Its Vice President
FLAGG ENERGY DEVELOPMENT CORPORATION, a Delaware corporation with a
principal place of business at 355 Research Parkway, Meriden, Connecticut
06450-1007
By: S/ Scott J. Taylor
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Scott J. Taylor
Its Vice President
KENETECH CORPORATION, a Delaware corporation, with a principal place of
business at 500 Sansome Street, Suite 300, San Francisco, California 94111
By: S/ Mark Lerdal
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Mark Lerdal
Its Chief Executive Officer
KENETECH ENERGY SYSTEMS, INC., a Delaware corporation, with a principal
place of business at 355 Research Parkway, Meriden, Connecticut 06450
By: S/ Scott J. Taylor
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Scott J. Taylor
Its Vice President
KENETECH FACILITIES MANAGEMENT, INC., a Delaware corporation, with a
principal place of business at 355 Research Parkway, Meriden, Connecticut
06450-1007
By: S/ Christopher H. Diez
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Christopher H. Diez
Its Vice President
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SCHEDULE 2
1) Monthly payments during 1998
a) first payment due May 5: $333,335*
b) second payment due June 1: $166,666*
c) subsequent monthly payments of $166,666 due the first business
day each calendar month
2) Monthly payments during 1999 and 2000:
$605,000 due the first business day of each month in each such year
* Already paid to CIGNA for account CCF-1.
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