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Rob made some changes in the e-mail I sent last Friday. He put the info
about the Assignment and Assumption Agreement in para. 2 and used more defined terms from the ADA. I think we can use the same A&A agreement to notify WestLB of our intent to assign the P.O. and give notice as to the closing date. However, the current form of A&A agreement has sig. blocks for only ENA and WestLB. Seems like you need a sig. for the assuming party! Particularly since that party is purporting to give notice to WestLB of its intent to pay the purchase price! Rose To effectuate the movement of turbines out of the WestLB LM6000 structures the following needs to take place: 1) ADA - Assignment of the Purchase Option. On at least 5 (five) days notice to WestLB, ENA will assign the Purchase Option for the subject equipment and ancillary agreement to the purchasing entity. This assignment (the "Assignment") must release the Lessor (WestLB) from all its obligations under the Turbine Purchase Agreement with respect to the subject equipment and ancillary agreements. This means that GE Packaged Power (a division of GE) and other vendors must release WestLB from its obligations with respect to the subject equipment and contracts. (Kay - Could this be done by an amendment to the scheduled equipment under the various agreements between WestLB and the various vendors? Rose - I believe so, along with entering into the new contracts reference in 3)) The assignment agreement to effect this is explained below and can be prepared by Kay, Rose or Rob. 2) ADA - Closing of the Purchase Option. WestLB requires at least 5 (five) days written notice of the exercise of the purchase option and this notice can be included in the Assignment and Assumption Agreement. The purchase price for the subject equipment and agreements will be the "Termination Amount" as defined in the ADA, as allocable to the subject equipment and contracts. This amount is equal to the sum of i) the aggregate outstanding amount of the Advances, plus ii) any Transaction Expenses then due and owing. plus iii) all accrued amounts due on any Lessor Yield or Facility Fee, plus iv) any amounts owed for any costs reasonably incurred by the Lessor with respect to the subject equipment and contracts. The particular amounts of the foregoing costs and fees allocable to the subject equipment and contracts should be determined in coordination with Lisa Bills and Humberto Cubillos. The Assignment and Assumption Agreement used to consummate the Purchase Option is attached as Exhibit G to the ADA and can be prepared by Kay, Rose or Rob. It needs to be executed by ENA, ENA's Designee as assignee and WestLB. A detailed list of the equipment and contracts being assigned must be prepared by the assignee and attached to the assignment. 3) Assignment under the Turbine Purchase Agreement. The Purchaser (WestLB) under the Turbine Purchase Agreement (the "Turbine Contract") may assign a portion of its rights and obligations under the Turbine Contract to an affiliate of ENA without the Seller's consent. Kay has structured the Turbine Contract to allow the assignee to enter into separate purchase agreements with GE Packaged Power for the equipment being assigned. The documents to transfer title of the equipment from WestLB (in the case of equipment that is already fabricated) , or to replace ENA with another business unit on the purchase agreement (in the case of WIP turbines) should be prepared by the business unit attorneys involved in the transfer, based on a form of contract which is very similiar to the Master Purchase Agreement. The tax specialists from both ENA and the acquiring business units should be advised as to the planned date of title transfer. Same generally holds true for the ABB transformers, except that the assignment to an Enron SPV may require a form of security.
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