Exhibit 10.03
RIGHT OF FIRST REFUSAL AGREEMENT
Recitals
This Right of First Refusal Agreement (Agreement) is made as of this 24th day of
May, 2002 (Effective Date), between AES Huntington Beach, L.L.C., and AES
Alamitos, L.L.C. (collectively, Grantor) and Mid-Power Corporation, (Grantee).
A. Grantor is the owner of gas turbine generating units described in
Exhibit A, attached and incorporated by reference (Equipment). The
Equipment does not include any real property, the main transformers,
adjoining streets, rights of ways, easements, all other appurtenant
rights, permits and contracts.
B. Grantor desires to grant to Grantee, and Grantee desires to obtain from
Grantor, a right of first refusal to purchase from Grantor one or 2
(two) gas turbine generating units commonly known as AES Alamitos Unit
7 and AES Huntington Beach Unit 5 (collectively, Equipment) on the
terms and conditions in this Agreement.
Section 1. Right of Fist Refusal
For good and valuable consideration the receipt and adequacy of which are
acknowledge, the parties agree as follows:
(a) Before Grantor sells or agrees to sell the Equipment, Grantor shall
offer to sell the Equipment to Grantee, in writing and on terms and
conditions substantially identical to those proposed for the sale of
the Equipment to a third party, The offer shall, at a minimum, include
the following information: (i) the purchase price proposed for the sale
to the third party; (ii) the method of purchase price payment; (iii)
the amount and terms of any proposed Grantor financing in connection
with the proposed purchase; (iv) the amount of any ▇▇▇▇▇▇▇ money
deposit; (v) the time and location for the close of escrow; (vi) the
name of the proposed purchaser; and (vii) the other material terms and
conditions of the proposed sale of the Equipment.
(b) Grantee shall have fifteen (15) days from the date of the offer to
accept the offer (Acceptance Period) by delivering to Grantor the
acceptance on or before 5:00 p.m. on the last day of the Acceptance
Period. If Grantee fails to accept the offer on or before the last of
the Acceptance Period, the offer shall be deemed to be rejected.
(c) If Grantee responds to the offer with anything other than an
unequivocal, acceptance accompanied with an ▇▇▇▇▇▇▇ deposit equal to
ten percent (10%) of the offer price, or rejection, the right of first
refusal with respect to such offer shall terminate and the response
shall be deemed an offer to purchase the Equipment on the terms and
conditions in the response (Counter Offer). Grantor shall be entitled
to accept or reject the Counter Offer at Grantors sole discretion.
(d) If Grantee accepts the offer, Grantee shall have sixty (60) days
following acceptance of the offer (Closing Period) to consummate the
purchase of the Equipment pursuant to the terms and conditions of the
offer. If Grantee fails to consummate the purchase of the Equipment
within the Closing Period, any ▇▇▇▇▇▇▇ money paid by Grantee pursuant
to the acceptance shall be paid to Grantor as Grantor's liquidated
damages.
(e) In the event an Offer to purchase has been communicated to Grantee and
thereafter Grantee declines or fails to meet such offer and thereafter,
for whatever reason the sale to such Offeree is not consummated
pursuant to the terms communicated to Grantee, then and in that event a
like procedure shall be followed as set forth above with respect to any
new offers received by Grantor. It is the intention of this provision
that Grantee is hereby granted a continuing First Right of Refusal
until a sale is consummated pursuant to the terms set forth above or
this agreement has expired by its terms.
Section 2. Consideration
The consideration for this Agreement is the purchase of the Equipment for which
the purchase price shall be paid by Grantee to Grantor concurrent with the
execution of this Agreement.
Section 3. Term
(a) Grantee's right of first refusal shall begin with the date of this
Agreement and continue for one-hundred twenty days (120) days for the
AES ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇ Equipment, unless terminated sooner in
accordance with the terms of this Agreement.
(b) Grantee's right of first refusal shall begin with the date of this
Agreement and continue for one-hundred eighty days (180) days for the
AES Alamitos Unit 7 Equipment, unless terminated sooner in accordance
with the terms of this Agreement.
Section 4. Termination
This Agreement shall automatically terminate on the first of the following
events to occur:
(a) Grantee, in contravention of this Agreement, assigns or attempts to
assign Grantee's rights under this Agreement without prior written
consent of Grantor;
(b) Grantee declines to exercise its right of first refusal and Grantor
subsequently consummates a sale of the Equipment to a third party
pursuant to the terms of the offer;
(c) The expiration of the term;
(d) The purchase of the Equipment by Grantee.
Section 5. Litigation Costs
If any legal action or any other proceeding, including an arbitration or action
for declaratory relief, is brought for the enforcement of this Agreement or
because of a dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Agreement, the prevailing party shall be entitled
to recover reasonable attorney fees and other costs incurred in that action or
proceeding, in addition to any other relief to which the prevailing party may be
entitled. Prevailing party shall include without limitation (i) a party
dismissing an action in exchange for sums allegedly due; (ii) a party receiving
performance from the other party of an alleged breach of covenant or a desire
remedy where the performance is substantially equal to the relief sought in an
action; of (iii) the prevailing party as determined by a court of law.
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Section 6. Assignment
Grantee's rights and obligations under this Agreement shall not be assigned
without Grantor's prior written consent, which may be granted or withheld at
Grantor's sole and unfettered discretion, and any assignment without consent
shall be void.
Section 7. Successors and Assigns
Subject to the restrictions on assignment, this Agreement shall inure to the
benefit of and be binding on the parties and their respective successors, heirs,
and assigns.
Section 8. Notices
All notices required or permitted to be given under this Agreement shall be in
writing and mailed, postage prepaid, by certified or registered mail, return
receipt requested, or by personal delivery, to the address indicated below or at
other places that Grantor or Grantee may, form time to time, designate by
written notice given to the other. The address change shall not be effective
until seven (7)days after notice of the change.
Notices shall be deemed sufficiently served three (3) days after the date of
mailing or upon personal delivery.
AES Huntington Beach, L.L.C.
AES Alamitos, L.L.C.
Mid- Power Service Corporation
Section 9. Counterpart or Duplicate Copies
This Agreement may be signed in counterpart or duplicate copies, and nay signed
counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
Section 10. Time of Essence.
Time is of the essence in this Agreement.
Section 11. Memorandum for Recordation.
It is specifically understood and agreed, and an integral part of this contract,
that a memorandum of this Agreement in a form and content acceptable to grantee
shall be executed by Grantor and delivered to Grantee for the recordation
thereof. Such document shall contain necessary language and acknowledgement as
may be necessary to be accepted for recordation.
Section 12. Captions.
Captions and headings in this Agreement, including the title of this Agreement,
are for convenience only and are not to be considered in construing this
Agreement.
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Section 13. Entire Agreement.
This Agreement and the Exhibits contain the entire agreement of the parties and
supersede any prior agreements or understandings of the parties, whether written
or oral, regarding the subject matter of this Agreement.
Section 14. Modification and Amendment.
This Agreement may not be modified or amended except in writing signed by
Grantor and Grantee.
Section 15. Arbitration
Any controversy or claims arising out of or relating to this agreement, or the
making, performance or interpretation hereof, shall be submitted to arbitration
before the American Arbitration Association in Los Angeles County, California,
in accordance with its then current commercial arbitration rules. Any decision
of the arbitrator shall be final and binding upon the parties, and shall be
enforceable as a final judgment in all jurisdictions. Grantee expressly consents
to venue in Los Angeles County, California.
Section 16. Governing Law.
This Agreement shall be governed by California law, and construed under the laws
of the State of California, without reference to principals of conflicts of law.
The parties have executed this Agreement as of the date first written above.
AES Huntington Beach, L.L.C.
AES Alamitos, L.L.C.
Mid- Power Service Corporation
AGREED and ACCEPTED this 24th days of May, 2002 (the "Effective Date")
Grantor: Grantee:
AES Alamitos, L.L.C. Mid-Power Services Corporation
AES Huntington Beach, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Signature Signature
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, AES Southland, L.L.C. Title: President
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EXHIBIT A
AES Alamitos Unit 7 is a Gas Turbine Unit located in AES Alamitos L.L.C. whose
address is ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. AES Alamitos Unit 7
consists of eight (8) ▇▇▇▇▇ and ▇▇▇▇▇▇▇ Aircraft model GG4A-7 gas generators to
produce high velocity gases that expands through four (4) expander turbines
mechanically coupled with electric generator and major auxiliary equipment:
lubricating oil reservoir and pumps, cooling and filtering equipment, hydrogen
seal oil pumps, control equipment, hydraulic engine starting pumps. Accumulator
units, neutral grounding cubicles, generator potential transformer cubicle, 480
- volt electrical switchgear, batteries, battery charges and other miscellaneous
equipment and control devices. Estimated installed megawatt output is 133 MW at
ISO conditions. In short, the Alamitos Unit 7 Equipment includes the building
housing, and only the equipment located within the building housing.
AES Huntington Beach Unit 5 is a Gas Turbine Unit located in AES Huntington
Beach L.L.C. whose address is ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇. AES ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇, consists of eight (8) ▇▇▇▇▇ and Whitney
Aircraft model GG4A-7 gas generators to produce high velocity gases that expands
through four (4) expander turbines mechanically coupled with electric generator
and major auxiliary equipment: lubricating oil reservoir and pumps, cooling and
filtering equipment, hydrogen seal oil pumps, control equipment, hydraulic
engine starting pumps, accumulator units, neutral grounding cubicles, generator
potential transformer cubicle, 480 - volt electrical switchgear, batteries,
battery charges and other miscellaneous equipment and control devices. Estimated
installed megawatt output is 133 MW at ISO conditions. In short, the Huntington
Beach Unit 5 Equipment includes the building housing, and only the equipment
located within the building housing.