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A master settlement agreement is a legal contract that helps to resolve multiple disputes among the parties by coming to a mutual agreement on the terms. These can be used in civil law matters, where one party is litigating the same issue in multiple jurisdictions. These agreements reduce the time and money required to argue an issue in several prolonged court cases.
A master settlement agreement is created through negotiation between the parties, not through a trial. However, a judge may have the final say on a whether the master settlement agreement is acceptable to the court.
Below is a list of common sections included in Master Settlement Agreements. These sections are linked to the below sample agreement for you to explore.
MASTER SETTLEMENT AND MUTUAL RELEASE AGREEMENT
PETRÓLEO BRASILEIRO S.A.
PETROBRAS ENERGÍA S.A.,
PETROBRAS HISPANO ARGENTINA S.A.,
ENRON ARGENTINA CIESA HOLDING S.A.,
ENRON PIPELINE COMPANY ARGENTINA S.A.,
PONDEROSA ASSETS, L.P.
Dated as of April 16, 2004
TABLE OF CONTENTS
TABLE OF CONTENTS
(continued)
MASTER SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This MASTER SETTLEMENT AND MUTUAL RELEASE AGREEMENT (this “Agreement”), dated as of April 16, 2004, is entered into among Petrobras Energía S.A., an Argentine sociedad anónima (“PESA”) formerly known as Compañía Naviera Perez Companc S.A.C.F.I.M.F.A. (“Perez Companc”), Petrobras Hispano Argentina S.A., a Spanish sociedad anónima (“Petrobras Hispano”), Enron Argentina CIESA Holding S.A., an Argentine sociedad anónima (“EACH”), Enron Pipeline Company Argentina S.A., an Argentine sociedad anónima (“EPCA”), and Ponderosa Assets, L.P., a Delaware limited partnership and indirect subsidiary of Enron (“Ponderosa”). For purposes hereof, “Parties” shall mean PESA, Petrobras Hispano, EPCA, EACH and Ponderosa collectively, and “Party” shall mean each of such Parties individually. In addition, (i) Enron Corp., an Oregon corporation (“Enron”), shall be a “Party” solely for the limited purposes of Sections 1.1, 1.4(c), 1.4(e), 2.1(f), Article 3, 4.2, 4.3, 4.7, 4.8, 4.10, 4.11 and Article 5 and for the purposes of accepting any right or benefit contained elsewhere under this Agreement and (ii) Petróleo Brasileiro S.A. (PETROBRAS), a sociedade anônima organized under the laws of the Federative Republic of Brazil (“Petrobras”), shall be a “Party” solely for the limited purposes of Sections 1.1, 1.4(i), 2.1(f), Article 3, Sections 4.3, 4.8, 4.11, 4.13 and Article 5 and for the purposes of accepting any right or benefit contained elsewhere under this Agreement.
Capitalized terms used in this Agreement are defined in Appendix A for the convenience of the reader and in order to eliminate the need for cross-reference. Appendix A is incorporated herein by reference.
R E C I T A L S :
A. Each of Petrobras, the Petrobras Parties, Enron, EACH, EPCA and Ponderosa own, directly or indirectly, collectively 100% of the capital stock of Compañía de Inversiones de Energía S.A., an Argentine sociedad anónima (“CIESA”).
B. CIESA owns (i) 405,192,594 ordinary A shares (the “TGS A Shares”) of Transportadora de Gas del Sur S.A., an Argentine sociedad anónima that engages in the business of transporting natural gas throughout Argentina, processing natural gas and marketing liquid petroleum gases (“TGS”), which shares constitute 100% of the issued and outstanding TGS A Shares and 51% of the total issued and outstanding capital stock of TGS and (ii) 34,133,200 ordinary B shares of TGS (the “TGS B Shares”), which shares constitute 4.3% of the total issued and outstanding capital stock of TGS.
C. At the time that Enron, through EPCA, and Perez Companc obtained their indirect ownership interest in TGS through their ownership of CIESA, they and certain of their Affiliates entered into several agreements, undertakings, covenants and other obligations relating to the acquisition of such ownership and the operation of TGS’s business, including, without limitation, (i) the Owners Agreement, dated as of November 13, 1992, by and among EPCA, Citicorp Equity Investments S.A. and Perez Companc (as amended, supplemented or modified from time to time, the “Owners Agreement”), (ii)
the Shareholders Agreement, dated as of November 13, 1992, by and among EPCA, Citicorp Equity Investments S.A. and Perez Companc (as amended, supplemented or modified from time to time, the “Shareholders Agreement”), (iii) the Technical Assistance Agreement, dated as of November 13, 1992, by and between TGS and EPCA (as amended, supplemented or modified from time to time, the “Technical Assistance Agreement”), (iv) the Guaranty, dated as of November 13, 1992 (the “Guaranty”), made by Transwestern Pipeline Company, a Delaware corporation (“Transwestern”), in favor of the other Owners (as defined under the Owners Agreement) guaranteeing the performance of the obligations of EPCA under the Owners Agreement, the Shareholders Agreement and (v) the Bid Agreement, dated as of November 13, 1992, by and among EPCA, Citicorp Equity Investments S.A. and Perez Companc (the “Bid Agreement”). The Parties acknowledge that the Bid Agreement has expired pursuant to its terms prior to the date hereof and is of no further force or effect.
D. At the time of the transaction pursuant to which the ownership interests in TGS were acquired pursuant to the bidding terms for the privatization of Gas del Estado (the “ Pliego ”), Transwestern was considered a member of the “Enron Economic Group” ( Conjunto Económico de Enron ) that bid for such acquisition and the License and Enron was the “Controlling Company” for purposes of such “Enron Economic Group”.
E. Each of the Parties hereby acknowledges that it is familiar with the business, operations and management of each of TGS and CIESA.
F. On December 2, 2001, Enron filed a voluntary petition of relief under chapter 11 of Title 11 of the United States Bankruptcy Code, 11 U.S.C. § 101, et. seq. (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”), Case No. 01-16034 (AJG), and is currently operating as a debtor-in-possession. EACH, EPCA and Ponderosa have not filed such petitions and are not currently debtors in any proceedings.
G. On October 17, 2002, Petrobras Participacoes S.A. acquired certain ownership interests of Petrobras Energía Participaciones S.A., the controlling entity of PESA which directly and indirectly holds interests in CIESA and TGS, pursuant to a stock purchase agreement dated as of such date, by and among Petrobras , Fundación Perez Companc and certain members of the Perez Companc family, among others. On May 13, 2003, the Comisión Nacional de Defensa de la Competencia , the Argentine governmental agency which regulates competition (the “CNDC”), approved such acquisition.
H. In January 2002, the Argentine government enacted legislation that adversely and significantly impacted TGS’s financial condition and, consequently, CIESA’s investment in TGS. As a result, TGS and CIESA have each undertaken a financial restructuring which may include, among other alternatives, a renegotiation of their respective obligations with third party lenders.
I. In November 2001, in connection with the events and circumstances relating to Enron’s filing of its bankruptcy case, Citicorp North America, Inc. (“CNAI”), as agent for a group of banks under a loan that provided financing for an affiliate of Enron, delivered a notice to Enron asserting that it had appointed Citibank, N.A. as a “portfolio manager” with respect to certain assets of Affiliates of Enron, including Ponderosa’s indirect ownership interests in CIESA and TGS, and that such portfolio manager has certain rights with respect to the disposition of such assets. Enron disputes the validity, effectiveness and scope of CNAI’s asserted appointment. Enron and CNAI are currently in negotiations to resolve this dispute and determine the methodology under which Enron, with or without CNAI’s participation, shall manage and dispose of the assets of Ponderosa, including the indirect ownership interests in CIESA and TGS.
J. In February 2004, the bankruptcy of CIESA was requested before a Commercial Court located in the city of Buenos Aires, by a party who claimed to hold bonds issued by CIESA for a principal amount of US$10,300,000.
K. The Parties have engaged in extensive, arm’s length and good faith negotiations and discussions concerning the subject matter of this Agreement.
L. The Parties now desire to enter into an agreement to compromise and settle the matters that are the subject of this Agreement in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained and for other good and valuable consideration, the receipt, fairness and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1.1 Releases. Subject to and upon the entry of the Final Order, the following obligations, covenants and agreements shall be simultaneously effected:
(a) Petrobras Release . Each of Petrobras and the Petrobras Parties, for itself and its successors and assigns, agrees to, and shall cause each of its Affiliates to, irrevocably waive, release and forever discharge each of Enron, Transwestern, the Enron Parties and each of their respective Related Parties from any and all Claims under or arising from or in connection with the Owners Agreement, the Bid Agreement and the Shareholders Agreement and each of the agreements, covenants and other undertakings made in respect thereof (including the Guaranty, the Pliego , the ENARGAS Letters, the Letter Agreements and the Technical Assistance Agreement) to which Petrobras or any of the Petrobras Parties or any of their respective Affiliates is a party or beneficiary. The irrevocable release, waiver and discharge set forth in this subsection shall, without limitation, extend to Enron, Transwestern, the Enron Parties and each of their
respective Related Parties with respect to any and all Claims arising under, relating to or in connection with:
(i) their participation in, withdrawal from, or the termination of their participation in, the “Enron Economic Group” ( Conjunto Económico de Enron ) under the Pliego , the ENARGAS Letters and each of the agreements, covenants and other undertakings they respectively made in respect of such participation, withdrawal or termination;
(ii) any purported “Change of Control” as set forth and defined in the Shareholders Agreement, the Pliego , the Owners Agreement, the Technical Assistance Agreement, the Guaranty, the ENARGAS Letters and the Letter Agreements, as applicable (whether such “Change of Control” is purported to have occurred prior to, simultaneously with or subsequent to the execution of this Agreement), arising in connection with or resulting from Enron’s filing under chapter 11 of the Bankruptcy Code and the transactions contemplated by the Enron Plan;
(iii) the direct or indirect transfer, sale, distribution, conveyance or any other act that results in a reduction in stock participation by Enron or any of its Affiliates of shares of, or any instrument or certificate representing an interest in, capital stock of Transwestern, Ponderosa, EPCA or EACH, in each case in connection with the Enron Plan, to the extent such Claims in any manner relate to, arise out of or in connection with the Enron Parties’ and their respective Affiliates’ direct or indirect investment or participation in TGS and/or CIESA;
(iv) the resolution of the dispute described in paragraph (I) of the recitals of this Agreement, which resolution may address, among other things, both the management and disposition of the assets held by Ponderosa, to the extent such Claims in any manner relate to, arise out of or in connection with the Enron Parties’ and their respective Affiliates’ direct or indirect investment or participation in TGS and/or CIESA; and
(v) any actions taken by ENARGAS, including the termination of the License, relating to, in connection with or as a result of (A) any actions described in clauses (i) through (iv) above and/or (B) any actions taken by Enron or the Enron Parties pursuant to and in accordance with this Agreement.
Upon execution of this Agreement, each of Petrobras and the Petrobras Parties shall deliver to Transwestern the fully executed Transwestern Release. The Parties acknowledge and agree that the Transwestern Release shall not be effective until entry of the Final Order. The Parties further acknowledge and agree that in the event of a conflict between the provisions of this Agreement and the provisions of the Transwestern Release, the provisions which provide
Transwestern and the Transwestern Parties the broadest and most beneficial release of Claims, as determined by Enron in its sole discretion, shall govern.
(b) Enron Release . Each of Enron and the Enron Parties, for itself, its successors and assigns, agrees to, and shall cause each of its Affiliates to, irrevocably waive, release and forever discharge Petrobras and the Petrobras Parties and each of their respective Related Parties from any and all Claims under or arising from or in connection with the Owners Agreement, the Bid Agreement, the Shareholders Agreement and each of the agreements, covenants and other undertakings made in respect thereof (including the Guaranty, the Pliego, the ENARGAS Letters, the Letter Agreements and the Technical Assistance Agreement) to which Enron or any of the Enron Parties or any of their Affiliates is a party or beneficiary, including any and all Claims under or arising from or in connection with any purported “Change of Control” (as set forth and defined in the Shareholders Agreement) arising in connection with (a) the transactions described in recital (G) to this Agreement or (b) any actions taken by ENARGAS, including the termination of the License, relating to, in connection with or as a result of any actions taken by the Petrobras Parties pursuant to and in accordance with this Agreement.
(c) General Waiver . The consequences of the waivers, releases and discharges provided in clauses (a) and (b) of this Section 1.1 have been explained by each of the Parties’ respective legal, tax and financial advisors. The Parties acknowledge that neither Petrobras nor Enron are parties to the Operative Agreements, and do not have any express contractual rights under such agreements to enforce the provisions thereof against the other parties thereto. Nevertheless, Enron and Petrobras have agreed to provide each other the waivers, releases and discharges provided for in clauses (a) and (b) of this Section 1.1, and each of Petrobras and Enron agrees to be bound by the terms thereof. Each Party further acknowledges that it may hereafter discover facts different from, or in addition to, those that it now knows or believes to be true with respect to any Claims, and agrees that this Agreement and the releases contained herein shall be and remain effective in all respects notwithstanding the discovery of such different or additional facts, except to the extent that the discovery of such facts was delayed or hindered by dolo (as defined under Argentine law) by a Party. To the extent that Applicable Law would not otherwise recognize the provisions of clauses (a) and (b) of this Section 1.1 as constituting an irrevocable, full and final waiver, release and discharge applying to all unknown and unanticipated Claims, as well as those now known or disclosed, the Parties hereby expressly and irrevocably waive all rights and benefits which any Party may have now or in the future under any such Applicable Law.
1.2 Amendment to Owners Agreement. Subject to entry of the Final Order, EPCA, PESA and their applicable Affiliates shall execute an amendment to the Owners Agreement providing that PESA shall replace EPCA as the entity that nominates the General Manager of TGS under Article 4.3 of the Owners Agreement. Such amendment
to the Owners Agreement shall be executed simultaneously with the execution of this Agreement and shall be effective simultaneously with the effectiveness of the releases set forth in Section 1.1. If PESA exercises its right to appoint the General Manager of TGS as described in this Section 1.2, the new General Manager of TGS shall be available for all meetings necessary to effect the Transactions and shall commit to respond to all reasonable information requests by Enron and/or Ponderosa to the extent necessary (in Enron’s sole discretion) to effect the consummation of the Transactions, to Enron’s and/or Ponderosa’s satisfaction, as soon as practicable but in no case later than five (5) Business Days following such request, to the extent Enron and/or Ponderosa, as applicable, has a direct or indirect interest or participation in TGS.
1.3 First Swap Closing Date Transactions. On the First Swap Closing Date, the following obligations, covenants and agreements shall be simultaneously effected:
(a) The Trust shall be formed consistent with Section 4.6.
(b) EACH and EPCA collectively shall transfer and convey to the Trust or, if the Trust is not formed, such alternative entity or entities designated by PESA, free and clear of any and all Liens (i) 66,008,813.5 CIESA A Shares, which shares constitute one hundred percent (100%) of the CIESA A Shares and represent approximately 25.5% of the total issued and outstanding capital stock of CIESA, and (ii) 37,534,424.5 CIESA B Shares, which shares represent approximately 14.5% of the total issued and outstanding capital stock of CIESA, provided, however, that such entity is permitted under Argentine law to receive the CIESA Shares and is capable of consummating the Transactions.
(c) The Petrobras Parties collectively shall transfer and convey to EPCA, or such Affiliate thereof as it shall designate, 58,410,452 Petrobras B Shares free and clear of any and all Liens, which shares represent approximately 7.35% of the total issued and outstanding capital stock of TGS.
(d) The Shareholders Agreement and Owners Agreement (including all amendments thereto) shall be terminated and the New Shareholders Agreement, on terms mutually agreeable to the parties thereto, shall be executed and delivered to the parties thereto, including the trustee for the Trust. In addition to the principles for the New Shareholders Agreement set forth on Appendix C, the New Shareholders Agreement shall provide, among other things:
(i) preemptive and tag along rights (except with respect to the Transactions) for each of the shareholders of CIESA;
(ii) that, only in the event that Ponderosa, directly or indirectly, does not have sufficient shareholdings in TGS to elect at least one director of TGS, Ponderosa shall have the right to have appointed through CIESA one director of TGS so long as Ponderosa maintains, directly or indirectly, a 10% or greater ownership interest in CIESA; provided, however, that
this right (A) shall be non-transferable, except for a transfer to (x) any Affiliate of Enron and (y) any Person that is a party to a resolution of the dispute described in paragraph (I) of the recitals of this Agreement (excluding a sale, merger or transfer, either directly or indirectly, to an entity not party to such resolution), and (B) shall terminate on the Second Swap Closing Date;
(iii) that Ponderosa’s direct or indirect ownership interest and voting interest in CIESA shall not be diluted below 10% of the outstanding capital stock of CIESA in any respect without the prior written consent of Ponderosa, such consent not to be unreasonably withheld; provided, however, that this right (A) shall be non-transferable, except for a transfer to (x) any Affiliate of Enron and (y) any Person that is a party to a resolution of the dispute described in paragraph (I) of the recitals of this Agreement (excluding a sale, merger or transfer, either directly or indirectly, to an entity not party to such resolution), and (B) shall terminate on the Second Swap Closing Date; and
(iv) that PESA shall be the entity that nominates the General Manager of TGS consistent with the same rights granted to PESA pursuant to the Amendment to the Owners Agreement contemplated by Section 1.2 of this Agreement.
1.4 Conditions to First Swap Closing Date Transactions. The respective obligations of the Parties to consummate the transactions set forth in Section 1.3 are subject to the fulfillment, on or prior to the First Swap Closing Date, of each of the following conditions:
(a) No Order issued by any court of competent jurisdiction or regulatory authority having valid enforcement authority preventing the consummation of the transactions contemplated under Section 1.3 shall be in effect, nor shall any material proceeding initiated by any Governmental Authority of competent jurisdiction having valid enforcement authority seeking such an Order be pending, nor shall there be any action taken, or any Law or Order enacted, entered or enforced that has not been subsequently overturned or otherwise made inapplicable to this Agreement, that makes the consummation of the transactions contemplated hereby illegal.
(b) The Final Order shall have been entered by the Bankruptcy Court.
(c) The ENARGAS Release shall have been obtained. The Parties acknowledge and agree that the condition set forth in this Section 1.4(c) may be waived only with the consent of each of PESA, Ponderosa and Enron, such consent not to be unreasonably withheld; provided, however, such consent will not be deemed unreasonably withheld by any Party if any of the other Parties has
not exhausted all its respective best efforts to obtain the ENARGAS Release in accordance with Section 4.3 hereof.
(d) Any and all Required Consents for the transactions contemplated under Section 1.3 shall have been obtained.
(e) The Technical Assistance Agreement shall have been terminated, assigned or transferred to PESA or a third party designated by PESA, in either case, upon, and in accordance with, the prior approval of ENARGAS; provided, that any such termination, assignment or transfer of the Technical Assistance Agreement shall provide for a full and irrevocable waiver, release and discharge of Transwestern and the Transwestern Parties from any and all Claims arising from, relating to or in connection with the Technical Assistance Agreement and the termination, assignment or transfer thereof, such release to be in form and substance satisfactory to Enron in its sole discretion. The Parties agree to use best efforts to cause TGS to effect such release.
(f) The transactions described in Sections 1.1 and 1.2 hereof shall have been consummated.
(g) With respect to the obligations of the Petrobras Parties to consummate the transactions set forth in Section 1.3:
(i) all of the representations and warranties of the Enron Parties contained herein shall be true and correct in all material respects on and as of the First Swap Closing Date, except those representations and warranties of the Enron Parties that speak of a certain date, which representations and warranties shall have been true and correct in all material respects as of such date;
(ii) each of the Enron Parties shall have performed and complied with their respective obligations and covenants required by this Agreement to be performed or complied with by it on or prior to the First Swap Closing Date, in all material respects; and
(iii) EPCA and EACH, respectively, shall deliver, or cause to be delivered, share certificates, duly endorsed or accompanied by transfer powers (including, without limitation, the notice required pursuant to Section 215 of Argentine law 19,550 with signatures of authorized officers, duly notarized and certified as to their authenticity and powers of signatories), with respect to the CIESA Shares to be transferred and conveyed in accordance with Section 1.3(b).
(h) With respect to the obligations of the Enron Parties to consummate the transactions set forth in Section 1.3:
(i) all of the representations and warranties of each of the Petrobras Parties contained herein shall be true and correct in all material respects on and as of the First Swap Closing Date, except those representations and warranties of the Petrobras Parties that speak of a certain date, which representations and warranties shall have been true and correct in all material respects as of such date;
(ii) each of the Petrobras Parties shall have performed and complied with its obligations and covenants required by this Agreement to be performed or complied with by it on or prior to the First Swap Closing Date, in all material respects; and
(iii) each of the Petrobras Parties, respectively, shall deliver, or cause to be delivered, share certificates, duly endorsed or accompanied by transfer powers (including, without limitation, the notice required pursuant to Section 215 of Argentine law 19,550 with signatures of authorized officers, duly notarized and certified as to their authenticity and powers of signatories and complying with the requirements of Caja de Valores, S.A.), with respect to the Petrobras B Shares to be transferred and conveyed in accordance with Section 1.3(c).
(i) Petrobras shall be reasonably satisfied that the consummation of the Transactions will not result in either CIESA or TGS being deemed a “subsidiary” of Petrobras within the meaning of any material financing agreement of Petrobras and Petrobras shall have delivered to PESA (and PESA shall have given written notice to the Enron Parties of such delivery) written confirmation of such satisfaction.
(j) The Parties shall have agreed, in accordance with Section 4.6, on the final terms and conditions of the trust agreement that will govern the Trust.
(k) The Petrobras Parties, the trustee for the Trust and, as applicable, EACH and EPCA, shall have agreed upon the final terms and conditions of the New Shareholders Agreement pursuant to the principles set forth on Appendix C.
(l) No material proceeding has been initiated by any Argentine Governmental Authority of competent jurisdiction having valid enforcement authority seeking an Order preventing the consummation of the Transactions is pending, nor shall there be any action taken, or any Law or Order enacted, entered or enforced that has not been subsequently overturned or otherwise made inapplicable to this Agreement, that makes the consummation of the Transactions illegal.
1.5 Second Swap Closing Date Transactions. On the Second Swap Closing Date, the following obligations, covenants and agreements shall be simultaneously effected:
(a) Subject to the simultaneous transfer of TGS B Shares provided in Section 1.5(b) free and clear of any and all Liens, EACH and EPCA collectively shall transfer and convey 25,885,809.5 CIESA B Shares to such Person or Persons as shall be designated by PESA free and clear of any and all Liens, which shares constitute one hundred percent (100%) of the CIESA B Shares held by EACH and EPCA, collectively (after giving effect to the First Swap Transactions), and represent ten percent (10%) of the total issued and outstanding capital stock of CIESA as of the date of this Agreement.
(b) Each of the Petrobras Parties shall vote their respective equity interests in CIESA in favor of CIESA transferring and conveying 34,133,200 TGS B Shares to EPCA or such Affiliate thereof as it shall designate, which shares constitute one hundred percent (100%) of the TGS B Shares held by CIESA and represent approximately 4.3% of the total issued and outstanding capital stock of TGS. Enron and the Enron Parties acknowledge that, notwithstanding the satisfaction by each of the Petrobras Parties of their respective obligations under Section 4.7, the Petrobras Parties may fail to obtain the consent of the creditors of CIESA necessary to effect the transfer described in this Section 1.5(b).
1.6 Conditions to Second Swap Closing Date Transactions. The respective obligations of the Parties to consummate the transactions set forth in Section 1.5 are subject to the fulfillment, on or prior to the Second Swap Closing Date, of each of the following conditions:
(a) No Order issued by any court of competent jurisdiction or regulatory authority having valid enforcement authority preventing the consummation of the transactions contemplated under Section 1.5 shall be in effect, nor shall any material proceeding initiated by any Governmental Authority of competent jurisdiction having valid enforcement authority seeking such an Order be pending, nor shall there be any action taken, or any Law or Order enacted, entered or enforced that has not been subsequently overturned or otherwise made inapplicable to this Agreement, that makes the consummation of the transactions contemplated hereby illegal.
(b) Any and all Required Consents for the transactions contemplated under Section 1.5 shall have been obtained.
(c) The transactions described under Sections 1.1, 1.2 and 1.3 hereof shall have been consummated.
(d) With respect to the obligations of each of the Petrobras Parties to consummate the transactions set forth in Section 1.5:
(i) all of the representations and warranties of the Enron Parties contained herein shall be true and correct in all material respects on
and as of the Second Swap Closing Date, except those representations and warranties of the Enron Parties that speak of a certain date, which representations and warranties shall have been true and correct in all material respects as of such date;
(ii) each of the Enron Parties shall have performed and complied with their respective obligations and covenants required by this Agreement to be performed or complied with by it on or prior to the Second Swap Closing Date, in all material respects; and
(iii) EPCA and EACH, respectively, shall deliver, or cause to be delivered, share certificates, duly endorsed or accompanied by transfer powers (including, without limitation, the notice required pursuant to Section 215 of Argentine law 19,550 with signatures of authorized officers, duly notarized and certified as to their authenticity and powers of signatories), with respect to the CIESA B Shares to be transferred and conveyed in accordance with Section 1.5(a).
(e) With respect to the obligations of the Enron Parties to consummate the transactions set forth in Section 1.5:
(i) all of the representations and warranties of each of the Petrobras Parties contained herein shall be true and correct in all material respects on and as of the Second Swap Closing Date, except those representations and warranties of the Petrobras Parties that speak of a certain date, which representations and warranties shall have been true and correct in all material respects as of such date;
(ii) each of the Petrobras Parties shall have performed and complied with its obligations and covenants required by this Agreement to be performed or complied with by it on or prior to the Second Swap Closing Date, in all material respects; and
(iii) each of the Petrobras Parties shall cause CIESA to deliver share certificates, duly endorsed or accompanied by transfer powers (including, without limitation, the notice required pursuant to Section 215 of Argentine law 19,550 with signatures of authorized officers, duly notarized and certified as to their authenticity and powers of signatories and complying with the requirements of Caja de Valores, S.A.), with respect to the TGS B Shares to be transferred and conveyed in accordance with Section 1.5(b).
REPRESENTATIONS AND WARRANTIES
2.1 General Representations. Subject to Section 5.17, each Party individually represents and warrants to each other Party that the statements contained in this Section 2.1 are true, correct and complete with respect to itself as of the date of this Agreement.
(a) Organization and Authority. Such Party is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its creation, formation or organization. Such Party has all necessary right, power and authority to execute, deliver and perform its obligations under this Agreement and each other Settlement Document to which it is a party. Subject, with respect to the Enron Parties, to the entry of the Final Order, each Party’s execution, delivery and performance of this Agreement and each other Settlement Document to which it is a party have been duly and validly authorized by all necessary corporate or other proceedings on the part of such Party.
(b) Enforceability. This Agreement and the other Settlement Documents to which it is a party have been or, when executed and delivered will be, duly executed and delivered on behalf of such Party and constitute or, when executed and delivered will constitute, subject, with respect to the Enron Parties, to the entry of the Final Order, the legal, valid and binding obligation of such Party enforceable against it in accordance with its terms (subject to the terms of the Final Order), except that such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and (b) equitable principles which may limit the availability of certain equitable remedies (such as specific performance).
(c) No Conflicts. The execution, delivery and performance of this Agreement and the other Settlement Documents to which it is a party do not violate, conflict with or result in a breach or a default under (i) any of the terms and conditions of its Governing Documents or (ii) to the knowledge and belief of such Party, after due inquiry, (x) subject, with respect to Enron and the Enron Parties, to the entry of the Final Order, any Applicable Law or (y) any terms, covenants, conditions or provisions of any indenture, loan agreement, lease agreement, mortgage, deed of trust, agreement or instrument to which it is a party or to which it may be subject (except with respect to such violations, conflicts or breach or default as would not reasonably be expected to have a Material Adverse Effect).
(d) Compliance; Litigation. Such Party is in compliance with each of its covenants and agreements set forth in this Agreement applicable to it. There is no action, suit or proceeding pending or, to its knowledge, threatened (i) that is binding on or otherwise affects in any way this Agreement or any other Settlement Document or the Transactions or (ii) that questions the validity of this Agreement or any other Settlement Document or the rights or remedies of the other Parties thereunder.
(e) Approvals; Consents. Except for those Consents set forth on Schedule 2.1(e), each Party has obtained all Consents that are necessary for its execution and delivery of this Agreement and each other Settlement Document to which it is a party and the consummation of the Transactions.
(f) Parties-in-Interest. The Parties hereto constitute all of the relevant and appropriate parties to the Shareholders Agreement and the Owners Agreement and, except for Transwestern, parties-in-interest to the Guaranty. Each Party represents and warrants that it is the only Person who has any interest in any Claims released hereby or as contemplated hereunder and that none of such Claims, nor any part thereof, have been assigned, granted or transferred in any way to any Person.
(g) Confidentiality. Such Party is not in breach in any material respect of its confidentiality obligations set forth in section 2.5 of the Shareholders Agreement.
2.2 Additional Representation and Warranty Concerning the Equity Interests.
(a) EACH and EPCA each individually represents and warrants to the Petrobras Parties that, with respect to itself as of the date of this Agreement, (i) they are the record and beneficial owner of the CIESA Shares in the respective share amounts shown on Schedule 2.2(a), and they each have the requisite organizational power and authority to transfer the CIESA Shares they respectively own as provided in this Agreement, and such delivery will convey to the recipient of such transfer pursuant hereto good and marketable title to such CIESA Shares, free and clear of any and all Liens thereon; and (ii) the CIESA Shares they respectively own are validly issued, fully paid and non-assessable, and there is no existing option, warrant, right, call, commitment or other agreement to which it, Enron or any Enron Party is a party requiring, and there are no securities of it, Enron or any Enron Party outstanding which, upon conversion, would require, the issuance, sale or transfer of any additional shares of capital stock or other equity interests of CIESA or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of capital stock or other equity interests of CIESA.
(b) Each of the Petrobras Parties individually represents and warrants to the Enron Parties that, with respect to itself as of the date of this Agreement, (i) such Petrobras Party is the record and beneficial owner of the Petrobras B Shares in the respective share amounts shown on Schedule 2.2(b), and such Petrobras Party has the requisite organizational power and authority to transfer their respective Petrobras B Shares as provided in this Agreement, and such delivery will convey to EPCA or such Affiliate thereof as it shall designate good and marketable title to such Petrobras B Shares, free and clear of any and all Liens thereon; and (ii) the Petrobras B Shares held by such Petrobras Party are validly issued, fully paid and non-assessable, and there is no existing option, warrant,
right, call, commitment or other agreement to which the Petrobras Parties or any of their respective Affiliates is a party requiring, and there are no securities of any of the Petrobras Parties or any of their respective Affiliates outstanding which, upon conversion, would require, the issuance, sale or transfer of any additional shares of capital stock or other equity interests of TGS or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of capital stock or other equity interests of TGS.
(c) Ponderosa, EACH and EPCA each individually represents and warrants to the Petrobras Parties that the organizational chart attached hereto as Schedule 2.2(c) represents in all material respects the ownership interests in the Enron Parties as of the date of this Agreement.
(d) PESA and Petrobras Hispano each individually represents and warrants to the Enron Parties that the organizational chart attached hereto as Schedule 2.2(d) represents in all material respects the ownership interests in the Petrobras Parties as of the date of this Agreement.
3.1 Termination of Agreement. The Parties (including, for all purposes of this Section 3.1, Enron) agree that this Agreement may be terminated:
(a) Upon the written agreement of all of the Parties;
(b) By any Party, if the Final Order has not been entered on or prior to the ninetieth (90th) day after the Motion has been filed with the Bankruptcy Court;
(c) By any Party, after the entry of the Final Order, so long as such Party is not then in breach of its obligations under this Agreement in any material respect, if any other Party has materially breached any of its representations, warranties, covenants or agreements contained in this Agreement and such breach has not been cured within thirty (30) Business Days from the date on which the breaching Party (and each other Party) receives notice thereof from the terminating Party;
(d) By any Party, if the transactions described in Sections 1.1, 1.2, 1.3 and 1.5 hereof have not been consummated prior to the one hundred and eightieth (180th) day following the entry of the Final Order; provided, however, that such 180-day period may be extended only by written consent of each of the Petrobras Parties, Ponderosa and Enron; or
(e) By any Party, after entry of the Final Order, if such Party has received (i) a written opinion of counsel stating, without qualification, that the prior approval of the CNDC is required to effect the Transactions or any material portion thereof or (ii) evidence from Petrobras reasonably satisfactory to the other Parties that the CNDC has actually commenced a formal proceeding under Law 25.156 against any of the Petrobras Parties in connection with the Transactions contemplated by this Agreement, and in each case the Parties, after negotiating in good faith for a period of sixty (60) days after the date of such opinion of counsel or delivery of such evidence, are unable to agree on an amendment to this Agreement and the structure of the Transactions in a manner that approval of CNDC is not required.
3.2 Effect of Termination. No termination of this Agreement pursuant to Section 3.1 shall be effective until notice thereof shall be given pursuant to Section 5.10 to the non-terminating Parties specifying the provisions hereof pursuant to which such termination is made. If validly terminated pursuant to Section 3.1, the Agreement shall become wholly void and of no further force and effect without liability to the Parties, except that (i) the releases set forth in Section 1.1, this Section 3.2 and the obligations of the Parties under such Sections of Article 1 and Article 4 (including Section 4.10) applicable to the Transactions that have theretofore been consummated and Article 5 of this Agreement shall remain in full force and effect and, (ii) the Settlement Documents (other than this Agreement) executed prior to such termination will remain in full force and effect in accordance with their terms, and (iii) if the Agreement is validly terminated pursuant to (A) Section 3.1(c) due to a breach by any of the Petrobras Parties, (B) Section 3.1(d) due to any of the conditions precedent set forth in clause (i), (j) or (k) of Section 1.4 not being satisfied, or (C) Section 3.1(e), the obligations of the Parties under Sections 4.2 and 4.3 shall remain in full force and effect until the earlier of (x) the date on which the ENARGAS Release is obtained and (y) the later of (A) the one hundred and eightieth (180th) day following such termination and (B) the three hundred and sixty-fifth (365th) day following the date of this Agreement. Notwithstanding the foregoing, nothing in this Section 3.2 shall be deemed to release any Party from liability for any breach of its obligations under this Agreement in any material respect.
4.1 Management Fee.
(a) Subject to the entry of the Final Order, notwithstanding the terms of the Letter Agreements to the contrary, as of September 15, 2003, EPCA’s portion of the management fee payable by TGS under the terms of Section 2.5 of the Technical Assistance Agreement (the “Management Fee”) shall be fifty-seven percent (57%) and PESA’s portion of the Management Fee shall be twenty-five percent (25%). The remaining eighteen percent (18%) portion of such
Management Fee (the “Management Fee Funds”) shall be held by EPCA in a segregated bank account (the “Management Fee Account”).
(b) Within five (5) Business Days following date of entry of the Final Order, PESA shall deposit by wire transfer of immediately available funds into the Management Fee Account an amount equal to the product of (x) the aggregate amount of the Management Fee paid to PESA by EPCA for the period beginning on September 15, 2003 and ending on the earlier of (i) the date of entry of the Final Order or (ii) May 15, 2004, multiplied by (y) a fraction the numerator of which is eighteen (18) and the denominator of which is forty-three (43).
(c) The apportionment of the Management Fee described in Section 4.1(a) above shall remain in effect retroactively from September 15, 2003 until the earliest of:
(i) May 15, 2004, or such later date as may be agreed to jointly by Ponderosa and Enron in their sole discretion (the “Fee Termination Date”);
(ii) the date on which EPCA ceases to be the “Operator” under the Technical Assistance Agreement; and
(iii) the date on which a restructuring of TGS’s outstanding funded indebtedness shall have been consummated.
Upon the earliest to occur of the events described in clauses (i) through (iii) above, the Management Fee (to the extent that EPCA is still entitled to receive the Management Fee) will thereafter be apportioned among EPCA and PESA as provided in the Letter Agreements or any other agreement existing between EPCA and PESA.
(d) The Management Fee Funds shall remain in the Management Fee Account until the earlier of (i) the Second Swap Closing Date, in which case the Management Fee Funds, and interest accrued thereon, if any, shall be released and shared equally between PESA and EPCA, and (ii) the termination of this Agreement in accordance with the provisions of Section 3.1 hereof, in which case the funds in such account, and interest accrued thereon, if any, shall be paid to PESA within ten (10) Business Days from the date of such termination; provided, however, that, with respect to clause (ii) above, if PESA, Petrobras Hispano or any of their respective Related Parties are in material breach of any of their respective representations, warranties, covenants or agreements contained in this Agreement as of the date of such termination or if the First Swap Closing Date shall have occurred, such funds shall be released to EPCA and such funds shall be free from any restrictions or limitations set forth in this Agreement. If, at the time of distribution of the Management Fee Funds described herein, the amount in the Management Fee Account is insufficient to equal eighteen percent (18%) of the
total Management Fee earned from September 15, 2003 to the Fee Termination Date due to administrative costs and expenses payable in respect of the Management Fee Account, then PESA and EPCA shall share ratably such shortfall.
4.2 Technical Assistance Agreement. Subject to entry of the Final Order:
(a) Each of the Petrobras Parties and their respective successors and assigns, shall, and shall cause their Related Parties to, at the direction of Enron and in accordance with the principles set forth on Appendix D (the “ENARGAS Principles”), cause and support the termination of the Technical Assistance Agreement by TGS under terms for such termination acceptable to Enron in its sole discretion; provided, however, that if ENARGAS notifies Enron, EPCA or TGS that in connection with granting the ENARGAS Release, it will consent to the assignment or transfer of the Technical Assistance Agreement to PESA or a designee of PESA, including the right to receive the Management Fee, for no additional consideration (whether monetary or otherwise) payable by Enron, Ponderosa, Transwestern or the Enron Parties, the Parties will use commercially reasonable efforts to achieve such result.
(b) If the Technical Assistance Agreement is terminated, assigned or transferred to PESA or a designee of PESA pursuant to Section 4.2(a) and the ENARGAS Release has been granted, (i) EPCA and PESA agree to amend the Owners Agreement to, (x) in the event that the Technical Assistance Agreement is terminated, eliminate any reference to the EPCA criteria described in section 4.8(b) of the Owners Agreement and, (y) in the event that the Technical Assistance Agreement is assigned or transferred, include new criteria, to be determined at PESA’s sole discretion, relating to PESA and (ii) the Parties acknowledge and agree that from and after the effective date of such termination, assignment or transfer the Enron Parties shall not have any rights to receive the Management Fee or any portion thereof.
(c) Enron and PESA, at the direction of Enron and in accordance with the ENARGAS Principles, will jointly, on behalf of TGS, seek any and all required consents for, prior approvals of and/or provide any and all required notices in respect of the termination, assignment or transfer of the Technical Assistance Agreement as described in Section 4.2(a), including obtaining any required approval or consent of ENARGAS.
(d) Consistent with the provisions of this Section 4.2, TGS and EPCA have executed the TGS Letter, which provides EPCA the right to terminate the Technical Assistance Agreement at any time, subject to the prior approval of ENARGAS; provided, however, that EPCA hereby agrees not to exercise its rights under the TGS Letter to terminate the Technical Assistance Agreement until at least forty-five (45) days after the date on which the Final Order is entered by the Bankruptcy Court.
(e) Notwithstanding any other provision to the contrary contained in this Agreement, each of the Petrobras Parties and Ponderosa acknowledges and agrees that the approval of ENARGAS will be required for the termination, assignment or transfer of the Technical Assistance Agreement and, in order for ENARGAS to approve such termination, assignment or transfer and for the Parties to obtain the benefit of the releases set forth in this Agreement, EPCA’s right to receive the Management Fee may be terminated and, as a result thereof, neither PESA nor any of its Affiliates will be entitled to any portion of the Management Fee.
4.3 ENARGAS Release.
(a) Subject to entry of the Final Order, in connection with obtaining the ENARGAS Release, each of the Petrobras Parties and their respective successors and assigns, shall, and shall cause their respective Affiliates and their Related Parties to, cooperate with and use its and their best efforts to promptly assist Enron, Transwestern, TGS, CIESA and the Enron Parties to:
(i) promptly prepare and file with the applicable Governmental Authorities all necessary or advisable documentation and information of the Petrobras Parties and their Related Parties, relating to CIESA and TGS, provided, however, with respect to any documentation and/or information that is deemed confidential by the Petrobras Parties in connection with their respective obligations set forth in this Section 4.3(i), the Parties agree to consult with each other with respect to disclosure of all or any portion of such documentation and/or information and the Parties shall take all reasonable actions to maintain the confidentiality treatment of such documentation and/or information by the recipient thereof;
(ii) effect all necessary or advisable applications, notices, petitions and filings and execute all agreements and documents;
(iii) obtain all necessary or advisable prior Consents; and
(iv) take, or to cause to be taken, all other actions, and to do, or to cause to be done, all other things, including, if necessary, the termination of the Technical Assistance Agreement or the right to receive the Management Fee,
in the case of each of the foregoing clauses (i) through (iv), as may be necessary or advisable under this Agreement, Applicable Law or otherwise to obtain and otherwise make effective an ENARGAS Release.
(b) Each of Petrobras and the Petrobras Parties, for itself and its successors and assigns, shall, and shall cause their applicable Related Parties to, irrevocably waive, release and forever discharge each of Enron and the Enron
Parties and their respective Related Parties from any and all Claims arising as a result of any actions taken by Enron or any Enron Party pursuant to this Section 4.3 (except for any actions or inactions that would constitute a breach of this Section 4.3).
(c) Each of Enron and the Enron Parties, for itself and its successors and assigns, shall, and shall cause their applicable Related Parties to, irrevocably waive, release and forever discharge each of Petrobras and the Petrobras Parties and their respective Related Parties from any and all Claims arising as a result of any actions taken by the Petrobras Parties pursuant to this Section 4.3 (except for any actions or inactions that would constitute a breach of this Section 4.3).
4.4 Shareholders Agreement. Each of the Parties agrees that, except as otherwise provided herein, each of the Owners Agreement and the Shareholders Agreement and each of the agreements, covenants and other undertakings made in respect thereof shall remain in full force and effect until the New Shareholders Agreement is duly executed and delivered by the parties thereto, upon which the Owners Agreement and the Shareholders Agreement shall terminate and be of no further force and effect; provided, however, that (i) the obligations of Transwestern under the Guaranty shall terminate pursuant to the Transwestern Release and, (ii) subject to entry of the Final Order, the Petrobras Parties hereby specifically acknowledge and agree that as of the date of this Agreement none of EPCA, EACH, Transwestern, Ponderosa, Enron or any of their Affiliates and insurers shall, or shall be obligated to, provide to the Petrobras Parties or any of their Affiliates and insurers (or TGS, CIESA or their respective Affiliates) any proceeds or other amounts from or in respect of any losses, liabilities, damages, claims, expenses or deficiencies (including interest, penalties, fines, judgments, settlements, costs of preparation and investigation) arising from any insurance or other risk protection as described in Section 2.8 of the Owners Agreement. Each of Ponderosa, EACH, EPCA, and the Petrobras Parties shall use commercially reasonable efforts to negotiate in good faith the New Shareholders Agreement and execute and deliver it to each other on the First Swap Closing Date.
4.5 CIESA Restructuring. Each of Ponderosa, EPCA and EACH agree to support the CIESA Restructuring to the extent such CIESA Restructuring (i) is on commercially reasonable terms in light of the present financial condition of CIESA and (ii) either (x) results in Ponderosa owning, directly or indirectly, the CIESA B Shares to be transferred pursuant to Section 1.5(b), or (y) does not dilute Ponderosa’s remaining ten percent (10%) indirect interest in CIESA. Notwithstanding the foregoing, none of Ponderosa, EPCA, EACH or any of their respective Affiliates shall be obligated to make any financial contribution, whether in the form of securities, cash, cash equivalents or otherwise, in connection with the CIESA Restructuring pursuant to this Section 4.5.
4.6 Trust Formation and New Shareholders Agreement. The Parties shall cooperate in good faith to (i) agree on the final terms of the New Shareholders Agreement in accordance with the principles set forth on Appendix C and (ii) form the Trust in accordance with the principles set forth on Appendix B, unless PESA elects not
to form the Trust and instead designates an alternative entity or entities to receive the CIESA A Shares and CIESA B Shares pursuant to Section 1.3(b).
4.7 Appropriate Actions; Filings. Until this Agreement shall be terminated in accordance with the terms hereof, each of the Parties shall cooperate with each other and use (and will cause their respective Affiliates to use) commercially reasonable efforts (i) to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably proper or advisable on its part under this Agreement, Applicable Law or otherwise to consummate and make effective the Transactions, including (except as prohibited by Applicable Law or any organizational documents of CIESA) voting any equity interest in CIESA, (ii) to promptly prepare and to file all necessary documentation, including the filing of any notices with the Comisión Nacional de Valores (the Argentine Securities Commission) and the Bolsa de Comercio de Buenos Aires , (iii) to effect all necessary or advisable applications, notices, petitions, and filings and to execute all agreements and documents, (iv) to obtain all necessary approvals, authorizations, consents, licenses, permits or certificates of all Governmental Authorities (including all Required Consents) and (v) to obtain all necessary permits, consents, approvals and authorizations of any Person (including all Required Consents), in the case of each of the foregoing clauses, in accordance with Applicable Law and this Agreement and as necessary or advisable to consummate the Transactions; provided, however, that no Party nor any of their respective Affiliates shall be obligated to pay any consideration or fees to obtain any consents from third parties or Governmental Authorities that may be necessary, proper or advisable to consummate the Transactions; and provided further, that none of the Parties shall be obligated to make any filing or seek any consent from the Comisión Nacional de Defensa de la Competencia . In addition, each Party will provide prompt notification to the other Parties when any such approval, authorization, consent, license, permit, certificate, action, filing or notice referred to in this Section 4.7 is obtained, taken, made or given, as applicable. Each of the Parties shall have the right to review in advance all filings to be made under this Section 4.7 by any other Party with any Governmental Authority in connection with the Transactions, and each Party will make its respective representatives available to the other Parties to discuss any questions or issues raised with respect to such filings for a reasonable period prior to making such filings.
4.8 Limitation of Mutual Release. The Parties hereby acknowledge and agree that the provisions of Sections 1.1 and 4.3 and the releases provided for therein (a) shall not be construed as imposing any indemnity or payment obligation on any Party or on their Affiliates; (b) shall be solely applicable to the matters described therein; and (c) shall not be interpreted as or otherwise intended to be a release of any rights, remedies or obligations the Parties may have against any other Party and/or any Affiliates of the other Party arising out of, related to or in connection with any contracts, agreements or other arrangements, other than as expressly provided in Section 1.1 and 4.3 above, respectively.
4.9 Operation of TGS/CIESA in the Ordinary Course. During the period from the date hereof to and through the consummation of the Transactions or the earlier
termination of this Agreement in accordance with Section 3.1, except as contemplated in this Agreement (including in respect of the CIESA Restructuring and the restructuring of TGS’s outstanding funded indebtedness), the Parties shall cause, and shall cause each of their respective Affiliates to cause, CIESA and TGS, consistent with any applicable fiduciary duties, to conduct their business in all material respects in the Ordinary Course of Business, and preserve in all material respects their present business operations and organization.
4.10 Transition Services; Continued Support. From and after the date the Final Order is entered by the Bankruptcy Court, for a period of two (2) years, the Petrobras Parties will cause CIESA and/or TGS to continue to provide the services set forth on Schedule 4.10 (the “Transition Services”) to the Enron Parties. The Transition Services shall be performed with a degree of skill, diligence and prudence with which TGS, its Affiliates and their respective personnel have performed such services for the Enron Parties prior to the date of this Agreement and shall be of substantially equivalent quality. In addition, the Transition Services shall be performed with at least the same level of skill, diligence, prudence and quality as TGS utilizes in performing similar services for its Affiliates other than the Enron Parties. As consideration for the Transition Services the Petrobras Parties will cause to be provided to the Enron Parties by CIESA and/or TGS pursuant to this Section 4.10, CIESA and/or TGS will be compensated in accordance with the fee structure set forth on Schedule 4.10. The Petrobras Parties agree to, and shall cause CIESA and/or TGS to, provide the necessary information requested by Ponderosa and its Affiliates in connection with any arbitration or similar proceedings relating to CIESA and/or TGS in which Ponderosa or any of its Affiliates has an interest.
4.11 Further Assurances. From time to time, upon request, the Parties shall, without further consideration, promptly execute, deliver, acknowledge and file all such further documents, agreements, certificates and instruments, and do such further acts as the Persons entitled to the benefit of this Agreement may reasonably require to more effectively evidence or effectuate the Transactions.
4.12 Filing of the Motion. Within fifteen (15) Business Days after the date on which this Agreement is fully executed and delivered by every signatory hereto unless otherwise extended by agreement among the Parties, Enron shall file a motion with the Bankruptcy Court seeking the approval of this Agreement, the other Settlement Documents and the consummation of the Transactions (the “Motion”), a copy of which shall be provided to PESA prior to filing. Enron shall submit the form of the Final Order with the Motion.
4.13 No Objections. None of the Parties shall file any objection to the Motion.
4.14 Indemnification. The Petrobras Parties hereby agree to jointly and severally indemnify and hold harmless each of Enron, the Enron Parties and each of their respective Related Parties, from and against any and all liabilities arising out of, relating to or in connection with the formation, operation and existence of the Trust.
4.15 CIESA Bankruptcy. In the event that any involuntary bankruptcy filing of CIESA is made, the Parties hereto agree to use commercially reasonable efforts to cooperate with each other in defending CIESA against any such action; provided, however, that, in connection with such cooperation, (i) no Party shall be obligated to incur any expense or costs in connection with such defense other than as may be required under the Owners Agreement or the Shareholders Agreement, (ii) no Party shall take, or be obligated to take, any action that could in any way delay, hinder, impede or frustrate the ability of the Enron Parties to obtain the ENARGAS Release or otherwise limit the obligations of the Parties under this Agreement to seek and obtain the ENARGAS Release, and (iii) no Party shall be obligated to undertake or incur any financial obligation with respect to the satisfaction of any claims asserted by any Person in connection with such bankruptcy filing.
5.1 Survival of Representations and Warranties. All representations and warranties made in this Agreement or in any other agreement executed pursuant to this Agreement, including, without limitation, any certificate or other document furnished in connection with the execution of this Agreement, shall not survive beyond the Second Swap Closing Date or a termination of this Agreement in accordance with Section 3.1.
5.2 Waivers. Each Party hereto waives any notice that may be required to be received by any such Party in order to implement the Transactions contemplated herein. Each Party hereto hereby waives for purposes of the Transactions any provision contained in any document, agreement or instrument that would prohibit or impair the Parties from entering into this Agreement or the other Settlement Documents or consummating the Transactions as contemplated herein and therein, including any consent and timing requirements set forth therein.
5.3 Amendment. No modification, rescission, waiver, release or amendment of any provision of this Agreement shall be effective unless in a writing signed by each of the Parties.
5.4 Expenses. Each Party agrees to bear all of its own costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement and the other Settlement Documents and the Transactions and any and all amendments, modifications and supplements thereto.
5.5 Severability. Any provision of this Agreement held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
5.6 Successors and Assigns. No Party may assign its benefits or delegate its duties under this Agreement without the prior written consent of the other Parties, which consent shall not be unreasonably withheld. Any attempted assignment or delegation without such prior consent will be void. This Agreement is binding upon and shall inure to the benefit of each Party and their respective successors and permitted assigns.
5.7 No Third Party Beneficiaries. Except as provided in the following sentence, this Agreement is solely for the benefit of the Parties and no other Person will have any right, interest or claim under this Agreement. Notwithstanding any other provision of this Agreement, the Parties acknowledge and agree that Transwestern and the Transwestern Parties are third party beneficiaries under this Agreement and are entitled to all rights, interests and claims under this Agreement and Applicable Law as if they were a party hereto. In the case of Transwestern, all of such rights, interests and claims are acknowledged and accepted by its execution of this Agreement and, in the case of the Transwestern Parties, all of such rights, interests and claims shall be deemed acknowledged and accepted by Transwestern’s execution of the Transwestern Release.
5.8 Counterparts. This Agreement shall be executed in eight or more counterparts, each of which when so executed shall be deemed to be an original but all of which when taken together shall constitute one and the same instrument. All pages of this Agreement (other than the signature pages) shall be initialed by, and the applicable signature page shall contain a complete signature of, an authorized officer of each of the Parties, duly certified by notary public.
5.9 Headings. The headings, captions and arrangements used in this Agreement are for convenience only and shall not effect the interpretation of this Agreement.
5.10 Notices. All demands, notices, requests, instructions, correspondence or other documents to be given hereunder by any Party shall be in writing and will be considered received (i) upon receipt when transmitted by facsimile before 5:00 p.m. Houston, Texas time with written confirmation of such transmittal (transmittals by facsimile received after 5:00 p.m. Houston, Texas time will be considered to be received on the next Business Day), (ii) on the next Business Day following actual transmittal when transmitted by an internationally recognized courier service or (iii) on the fifth Business Day following actual transmittal when transmitted by certified mail, postage prepaid, return receipt requested; in each case when transmitted to a Party at its address set forth below (or to such other address as may be hereafter notified by the respective Party hereto to the other Parties):