Exhibit 10.61
-------------------------------
BOWLINE ADJACENT PROPERTY SALES AGREEMENT
BETWEEN
ORANGE AND ROCKLAND UTILITIES, INC.
AND
SOUTHERN ENERGY BOWLINE, L.L.C.
November 24, 1998
-------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
PURCHASE AND SALE
2.1. The Sale . . . . . . . . . . . . . . . . . . . . . . . 10
2.2. Excluded Assets . . . . . . . . . . . . . . . . . . . 10
2.3. Assumed Liabilities . . . . . . . . . . . . . . . . . 11
2.4. Excluded Liabilities . . . . . . . . . . . . . . . . . 15
ARTICLE III
PURCHASE PRICE
3.1. Purchase Price . . . . . . . . . . . . . . . . . . . . 17
3.2. Proration. . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV
THE CLOSING
4.1. Time and Place of Closing . . . . . . . . . . . . . . 18
4.2. Payment of Purchase Price . . . . . . . . . . . . . . 19
4.3. Deliveries by Seller . . . . . . . . . . . . . . . . . 19
4.4. Deliveries by Buyer . . . . . . . . . . . . . . . . . 20
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
5.1. Organization; Qualification . . . . . . . . . . . . . 22
5.2. Authority Relative to this Agreement . . . . . . . . . 22
5.3. Consents and Approvals; No Violation . . . . . . . . . 23
5.4. Undisclosed Liabilities . . . . . . . . . . . . . . . 25
5.5. Absence of Certain Changes or Events . . . . . . . . . 25
5.6. Title . . . . . . . . . . . . . . . . . . . . . . . . 26
5.7. Insurance . . . . . . . . . . . . . . . . . . . . . . 26
5.8. Environmental Matters . . . . . . . . . . . . . . . . 27
5.9. Real Property Encumbrances . . . . . . . . . . . . . . 29
5.10. Condemnation . . . . . . . . . . . . . . . . . . . . 29
5.11. Certain Contracts and Arrangements . . . . . . . . . 29
5.12. Legal Proceedings, etc. . . . . . . . . . . . . . . . 29
5.13. Regulation as a Utility . . . . . . . . . . . . . . . 30
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
6.1. Organization . . . . . . . . . . . . . . . . . . . . . 30
6.2. Authority Relative to this Agreement . . . . . . . . . 31
6.3. Consents and Approvals; No Violation . . . . . . . . . 31
6.4. Regulation as a Utility . . . . . . . . . . . . . . . 33
6.5. Availability of Funds . . . . . . . . . . . . . . . . 33
ARTICLE VII
COVENANTS OF THE PARTIES
7.1. Conduct of Business Relating to the Purchased Asset . 33
7.2. Access to Information . . . . . . . . . . . . . . . . 35
7.3. Expenses . . . . . . . . . . . . . . . . . . . . . . . 36
7.4. Further Assurances . . . . . . . . . . . . . . . . . . 37
7.5. Public Statements . . . . . . . . . . . . . . . . . . 38
7.6. Consents and Approvals . . . . . . . . . . . . . . . . 38
7.7. Fees and Commissions . . . . . . . . . . . . . . . . . 41
7.8. Tax Matters . . . . . . . . . . . . . . . . . . . . . 41
7.9. Supplements to Schedules . . . . . . . . . . . . . . . 43
7.10. Risk of Loss . . . . . . . . . . . . . . . . . . . . 44
7.11. Real Estate Matters . . . . . . . . . . . . . . . . . 45
7.12. Condemnation . . . . . . . . . . . . . . . . . . . . 47
7.13. Environmental Insurance. . . . . . . . . . . . . . 47
ARTICLE VIII
CLOSING CONDITIONS
8.1. Conditions to Each Party's Obligations to Effect the
Transactions Contemplated Hereby. . . . . . . . . . . 48
8.2. Conditions to Obligations of Buyer . . . . . . . . . . 51
8.3. Conditions to Obligations of Seller . . . . . . . . . 56
ARTICLE IX
INDEMNIFICATION
9.1. Indemnification . . . . . . . . . . . . . . . . . . . 58
9.2. Defense of Claims . . . . . . . . . . . . . . . . . . 61
ARTICLE X
TERMINATION AND ABANDONMENT
10.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.2. Procedure and Effect of Termination . . . . . . . . . 69
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Amendment and Modification . . . . . . . . . . . . . 70
11.2. Confidentiality . . . . . . . . . . . . . . . . . . . 70
11.3. Waiver of Compliance; Consents . . . . . . . . . . . 72
11.4. No Survival . . . . . . . . . . . . . . . . . . . . . 72
11.5. Notices . . . . . . . . . . . . . . . . . . . . . . . 73
11.6. Assignment . . . . . . . . . . . . . . . . . . . . . 74
11.7. Governing Law . . . . . . . . . . . . . . . . . . . . 76
11.8. Specific Performance . . . . . . . . . . . . . . . . 76
11.9. Counterparts . . . . . . . . . . . . . . . . . . . . 77
11.10. Interpretation . . . . . . . . . . . . . . . . . . 77
11.11. Entire Agreement . . . . . . . . . . . . . . . . . 77
11.12. Bulk Sales or Transfer Laws . . . . . . . . . . . . 78
BOWLINE ADJACENT PROPERTY SALES AGREEMENT
BOWLINE ADJACENT PROPERTY SALES AGREEMENT, dated as of November
24, 1998, between Orange and Rockland Utilities, Inc., a New York
corporation ("Seller"), and Southern Energy Bowline, L.L.C., a Delaware
limited liability company ("Buyer").
WHEREAS, the Seller owns certain real property, which includes
the Purchased Asset (as defined herein); and
WHEREAS, the Buyer desires to purchase, and the Seller desires to
sell, the Purchased Asset upon the terms and conditions hereinafter set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements hereinafter set forth, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. (a) As used in this Agreement, the following
terms have the meanings specified or referred to in this Section 1.1:
(1) "Affiliate" has the meaning set forth in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act.
(2) "Agreement" means this Bowline Adjacent Property Sales
Agreement.
(3) "Business Day" shall mean any day other than Saturday,
Sunday or any day which is a legal holiday or a day on which banking
institutions in the State of New York are authorized by law or other
governmental action to close.
(4) "Buyer Representatives" means the Buyer's accountants,
counsel, environmental consultants, financial advisors and other authorized
representatives.
(5) "CERCLA" means the Federal Comprehensive Environmental
Response, Compensation and Liability Act.
(6) "Code" means the Internal Revenue Code of 1986, as amended.
(7) "Confidentiality Agreement" means the Confidentiality
Agreement, dated June 19, 1998, between the Seller and Southern Energy,
Inc.
(8) "Encumbrances" means any mortgages, pledges, liens, security
interests, conditional and installment sale agreements, activity and use
limitations, conservation easements, deed restrictions, encumbrances and
charges of any kind.
(9) "Environmental Laws" means all Federal, state and local
laws, regulations, rules, ordinances, codes, decrees, judgments,
directives, or judicial or administrative orders relating to pollution or
protection of the environment, natural resources or human health and
safety, including, without limitation, laws relating to Releases or
threatened Releases of Hazardous Substances (including, without limitation,
ambient air, surface water, groundwater, land, surface and subsurface
strata) or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, Release, transport or handling of Hazardous
Substances.
(10) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(11) "Federal Power Act" means the Federal Power Act of 1935.
(12) "FERC" means the Federal Energy Regulatory Commission or any
successor thereto.
(13) "Good Utility Practices" mean any of the practices, methods
and acts engaged in or approved by a significant portion of the electric
utility industry with respect to similar facilities during the relevant
time period which in each case, in the exercise of reasonable judgment in
light of the facts known or that should have been known at the time the
decision was made, could have been expected to accomplish the desired
result at a reasonable cost consistent with good business practices,
reliability, safety, law, regulation, environmental protection, and
expedition. Good Utility Practices are not intended to be limited to the
optimum practices, methods or acts to the exclusion of all others, but
rather to be acceptable practices, methods or acts generally accepted in
such industry.
(14) "Hazardous Substances" means (a) any petrochemical or
petroleum products, oil, radioactive materials, radon gas, asbestos in any
form that is or could become friable, urea formaldehyde foam insulation and
transformers or other equipment that contain dielectric fluid which may
contain levels of polychlorinated biphenyls; (b) any chemicals, materials
or substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "restricted
hazardous materials," "extremely hazardous substances," "toxic substances,"
"contaminants" or "pollutants" or words of similar meaning and regulatory
effect; or (c) any other chemical, material or substance, exposure to which
is prohibited, limited or regulated by any applicable Environmental Law.
(15) "Holding Company Act" means the Public Utility Holding
Company Act of 1935, as amended.
(16) "HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended.
(17) "Income Tax" means any tax, charge, fee, levy, penalty, or
other assessment imposed by any U.S. federal, state, local or foreign
taxing authority (a) based upon, measured by or calculated with respect to
net income, profits or receipts (including, without limitation, capital
gains taxes and alternative minimum taxes but excluding sales, transfer and
similar taxes) or (b) based upon, measured by or calculated with respect to
multiple bases (including, without limitation, corporate franchise taxes)
if one or more of the bases on which such tax may be based, measured by or
calculated with respect to, is described in clause (a), in each case
together with any interest, penalties, or additions attributable thereto.
(18) "Income Tax Return" means any return, report, information
return or other document (including any related or supporting information)
supplied or required to be supplied to any authority with respect to Income
Taxes.
(19) "Instrument of Assumption" means the Instrument of
Assumption in the form of Exhibit A hereto.
(20) "Internal Revenue Service" means the United States Internal
Revenue Service, or any successor thereto.
(21) "Material Adverse Effect" means any change in or effect on
the Purchased Asset after the date of this Agreement that is, individually
or in the aggregate, materially adverse to the condition (financial or
physical, as compared to the condition on the date of this Agreement) of
the Purchased Asset other than any materially adverse change in or effect
on the Purchased Asset which is cured (including by the payment of money)
by the Seller before the Termination Date.
(22) "NJBPU" means the New Jersey Board of Public Utilities or
any successor thereto.
(23) "NYPSC" means the New York Public Service Commission or any
successor thereto.
(24) "Other Sales Agreements" means the Bowline Generating
Station Sales Agreement between the Seller, Consolidated Edison Company of
New York and the Buyer; the ▇▇▇▇▇▇ Generating Station Sales Agreement
between the Seller and Southern Energy ▇▇▇▇▇▇, L.L.C.; and the Gas Turbines
and Hydroelectric Generating Station Sales Agreement between the Seller and
Southern Energy NY-Gen, L.L.C., each dated as of the date of this
Agreement.
(25) "PAPUC" means the Pennsylvania Public Utility Commission or
any successor thereto.
(26) "Permitted Encumbrances" means (i) those exceptions to title
to the Purchased Asset contained in the documents listed on Schedules 5.6
and 5.9, (ii) any state of facts that a current survey of the Purchased
Asset would disclose; (iii) statutory liens for current Taxes, assessments
or other governmental charges not yet due or delinquent or the validity of
which is being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with generally
accepted accounting principles, provided that the aggregate amount being so
contested does not exceed $50,000; (iv) mechanics', carriers', workers',
repairers' and other similar liens arising or incurred in the ordinary
course of business relating to the Seller's obligations which are not yet
due and payable or the validity of which are being contested in good faith
by appropriate proceedings, provided that the aggregate amount of such
liens does not exceed $50,000; (v) zoning, entitlement, conservation
restrictions and other land use and environmental regulations by
governmental authorities; provided that the foregoing do not materially
interfere with the present use of the Purchased Asset; and (vi) such other
liens, imperfections in or failure of title, charges, easements,
restrictions and encumbrances which do not materially detract from the
value of or materially interfere with the present use of the Purchased
Asset and neither secure indebtedness nor individually or in the aggregate
have or would have a Material Adverse Effect or which will be discharged or
released prior to or simultaneously with the Closing.
(27) "Person" means an individual, a partnership, a joint
venture, a corporation, a limited liability company, a limited liability
partnership, a trust, an unincorporated organization or a governmental
entity or any department or agency thereof.
(28) "Purchased Asset" means all of Seller's right, title and
interest in, to and under the property adjacent to the Bowline Point
Generating Station, located in the Town of Haverstraw, Rockland County, New
York and identified as Section 21.17, Block 1, Lots 2 through 5 and Section
27.05, Block 1, Lots 1 and 3 in the records of the Town of Haverstraw,
consisting of a total of approximately 98 acres along the ▇▇▇▇▇▇ River,
including some 68 acres of upland area and 23 acres under the waters of the
▇▇▇▇▇▇ River, all as described in Schedule 5.6.
(29) "Release" means release, spill, leak, discharge, dispose of,
pump, pour, emit, empty, inject, ▇▇▇▇▇, dump or allow to escape into or
through the environment.
(30) "SEC" means the Securities and Exchange Commission or any
successor thereto.
(31) "Securities Act" means the Securities Act of 1933, as
amended.
(32) "Subsidiary" when used in reference to any other person
means any corporation of which outstanding securities having ordinary
voting power to elect a majority of the Board of Directors of such
corporation are owned directly or indirectly by such other person.
(33) "Tax" means any tax, charge, fee, levy, penalty or other
assessment imposed by any U.S. federal, state, local or foreign taxing
authority, including, but not limited to, any income, gross receipts,
license, stamp, occupation, environmental, excise, property, sales,
transfer, payroll, withholding, social security or any other tax of any
kind whatsoever, including any interest, penalties or additions
attributable thereto.
(34) "Tax Return" means any return, report, information return,
declaration, claim for refund or other document (including any schedule or
other related or supporting information) supplied or required to be
supplied to any authority with respect to Taxes and including any
supplement or amendment thereof.
(b) Each of the following terms has the meaning specified in the
Section set forth opposite such term:
Term Section
---- -------
ALTA 7.11
Assumed Liabilities 2.3
Buyer Preamble
Buyer Indemnitee 9.1
Buyer Required Regulatory Approvals 6.3
CEI 11.6
Closing 4.1
Closing Date 4.1
Confidential Information 11.2
Defect of Title 7.11
Direct Claim 9.2
Disclosing Party 11.2
DLJ 7.7
Environmental Insurance 7.13
Environmental Permits 5.8
Excluded Assets 2.2
Excluded Liabilities 2.4
Final Order 8.1
Indemnifiable Losses 9.1
Indemnification Floor 9.1
Indemnifying Party 9.1
Indemnitee 9.1
NYBTU 7.11
Permits 3.2
Purchase Price 3.1
Purchased Asset Preamble
Recipiant 11.2
Rockland County 7.12
Seller Preamble
Seller Balance Sheet 5.4
Seller Indemnitee 9.1
Seller Required Regulatory Approvals 5.3
Seller's Easements 4.4
Termination Date 10.1
Third Party Claim 9.2
Title Commitment 7.11
ARTICLE II
PURCHASE AND SALE
2.1. The Sale. Upon the terms and subject to the satisfaction of
the conditions contained in this Agreement, at the Closing, the Seller will
sell, assign, convey, transfer and deliver to the Buyer, and the Buyer will
purchase and acquire from the Seller, free and clear of all Encumbrances
(except for Permitted Encumbrances) all of the Seller's right, title and
interest in, to and under the real and personal property, tangible or
intangible, owned by the Seller and constituting the Purchased Asset.
2.2. Excluded Assets. Notwithstanding any provision herein to
the contrary, the Purchased Asset shall not include the following (herein
referred to as the "Excluded Assets"):
(a) all cash, bank deposits, cash equivalents and accounts
receivable;
(b) the name "Orange and Rockland Utilities, Inc.", "Orange and
Rockland", "O&R", "ORU" or any related or similar trade names, trademarks,
service marks or logos; and
(c) any refund, credit, penalty payment, adjustment or
reconciliation related to Taxes (excluding Taxes relating to real property)
paid prior to the Closing Date in respect of the Purchased Asset, whether
such refund, adjustment or reconciliation is received as a payment or as a
credit against future Taxes payable.
2.3. Assumed Liabilities. On the Closing Date, the Buyer shall
deliver to the Seller the Instrument of Assumption pursuant to which the
Buyer shall assume and agree to discharge to the maximum extent permitted
by law, all of the following liabilities and obligations of the Seller,
which relate to the Purchased Asset, other than Excluded Liabilities, in
accordance with the respective terms and subject to the respective
conditions thereof:
(a) all liabilities and obligations of the Seller arising or
accruing after the Closing Date under the contracts and other agreements
disclosed and entered into by the Seller with respect to the Purchased
Asset after the date hereof consistent with the terms of this Agreement;
except in each case, to the extent such liabilities and obligations, but
for a breach or default by the Seller, would have been paid, performed or
otherwise discharged on or prior to the Closing Date or to the extent the
same arise out of any such breach or default or any event which after the
giving of notice would constitute a default by Seller;
(b) all liabilities and obligations associated with the
Purchased Asset in respect of Taxes for which the Buyer is liable pursuant
to Section 7.8;
(c) any liabilities and obligations for which the Buyer has
indemnified the Seller pursuant to Section 9.1;
(d) any liability, obligation or responsibility under or related
to former, current or future Environmental Laws or the common law, whether
such liability or obligation or responsibility is known or unknown,
contingent or accrued, arising as a result of or in connection with (i) any
violation or alleged violation of Environmental Law, prior to the Closing
Date, with respect to the ownership or operation of the Purchased Asset;
(ii) loss of life, injury to persons or property or damage to natural
resources (whether or not such loss, injury or damage arose or was made
manifest before the Closing Date or arises or becomes manifest after the
Closing Date), caused (or allegedly caused) by the presence or Release of
Hazardous Substances at, on, in, under, adjacent to, discharged from,
emitted from or migrating from the Purchased Asset prior to the Closing
Date, including, but not limited to, Hazardous Substances contained in
building materials at the Purchased Asset or in the soil, surface water,
sediments, groundwater, landfill cells, or in other environmental media at
or adjacent to the Purchased Asset; and (iii) the investigation and/or
remediation (whether or not such investigation or remediation commenced
before the Closing Date or commences after the Closing Date) of Hazardous
Substances that are present or have been Released prior to the Closing Date
at, on, in, under, adjacent to, discharged from, emitted from or migrating
from the Purchased Asset, including, but not limited to, Hazardous
Substances contained in building materials at the Purchased Asset or in the
soil, surface water, sediments, groundwater, landfill cells, or in other
environmental media at or adjacent to the Purchased Asset; provided, as to
all of the above, that nothing set forth in this subsection 2.3(d) shall
require the Buyer to assume any liabilities that are expressly excluded in
Section 2.4;
(e) any liability, obligation or responsibility under or related
to former, current or future Environmental Laws or the common law, whether
such liability or obligation or responsibility is known or unknown,
contingent or accrued, arising as a result of or in connection with (i) any
violation or alleged violation of Environmental Law, on or after the
Closing Date, with respect to the ownership or use of the Purchased Asset;
(ii) compliance with applicable Environmental Laws on or after the Closing
Date with respect to the ownership or use of the Purchased Asset; (iii)
loss of life, injury to persons or property or damage to natural resources
caused (or allegedly caused) by the presence or Release of Hazardous
Substances at, on, in, under, adjacent to, discharged from, emitted from or
migrating from the Purchased Asset on or after the Closing Date, including,
but not limited to, Hazardous Substances contained in building materials at
the Purchased Asset or in the soil, surface water, sediments, groundwater,
landfill cells, or in other environmental media at or adjacent to the
Purchased Asset; (iv) loss of life, injury to persons or property or damage
to natural resources caused (or allegedly caused) by the off-site disposal,
storage, transportation, discharge, Release, recycling, or the arrangement
for such activities, of Hazardous Substances, on or after the Closing Date,
in connection with the ownership or operation of the Purchased Asset; (v)
the investigation and/or remediation of Hazardous Substances that are
present or have been released on or after the Closing Date at, on, in,
under, adjacent to, discharged from, emitted from or migrating from the
Purchased Asset, including, but not limited to, Hazardous Substances
contained in building materials at the Purchased Asset or in the soil,
surface water, sediments, groundwater, landfill cells or in other
environmental media at or adjacent to the Purchased Asset; and (vi) the
investigation and/or remediation of Hazardous Substances that are disposed,
stored, transported, discharged, Released, recycled, or the arrangement of
such activities, on or after the Closing Date, in connection with the
ownership or use of the Purchased Asset, at any off-site location;
provided, that nothing set forth in this subsection 2.3(e) shall require
the Buyer to assume any liabilities that are expressly excluded in Section
2.4;
(f) all liabilities and obligations of the Seller with respect
to the Purchased Asset under the agreements or consent orders set forth on
Schedule 5.8(c); and
(g) all other liabilities or obligations other than those
liabilities and obligations noted in (a) through (f) above, exclusively
relating to the Purchased Asset no matter when the events or occurrences
giving rise to such liabilities or obligations took place, the value of
which liabilities and obligations, together with the liabilities and
obligations relating to the "Purchased Assets" as defined in each of the
Other Sales Agreements in the aggregate, shall not exceed $3 million.
All of the foregoing liabilities and obligations to be assumed by
the Buyer hereunder (excluding any Excluded Liabilities) are referred to
herein as the "Assumed Liabilities." It is understood and agreed that
nothing in this Section 2.3 shall constitute a waiver or release of any
claims arising out of the contractual relationships between the Seller and
the Buyer.
2.4. Excluded Liabilities. The Buyer shall not assume or be
obligated to pay, perform or otherwise discharge the following liabilities
(the "Excluded Liabilities"):
(a) any liabilities or obligations of the Seller in respect of
any Excluded Assets or other assets of the Seller which are not part of the
Purchased Asset;
(b) any liabilities or obligations in respect of Taxes
attributable to the Purchased Asset for taxable periods ending on or before
the Closing Date, except for Taxes for which the Buyer is liable pursuant
to Section 7.8(a);
(c) any liabilities, obligations, or responsibilities relating
to the disposal, storage, transportation, discharge, Release, recycling, or
the arrangement for such activities, of Hazardous Substances that were
generated at the Purchased Asset, at any off-site location, where the
disposal, storage, transportation, discharge, Release, recycling or the
arrangement for such activities at said off-site location occurred prior to
the Closing Date, provided that for purposes of this Section, "off-site
location" does not include any location to which Hazardous Substances
disposed of, discharged from, emitted from or Released at the Purchased
Asset have migrated, including, but not limited to, surface waters that
have received waste water discharges from the Purchased Asset;
(d) any liabilities or obligations required to be accrued by the
Seller in accordance with generally accepted accounting principles and/or
the FERC Uniform System of Accounts on or before the Closing Date with
respect to liabilities related to the Purchased Asset other than any
liability assumed by Buyer under any provision of this Agreement, including
without limitation, Section 2.3;
(e) any liabilities or obligations with respect to liabilities
relating to the Purchased Asset relating to any personal injury, including
bodily injury, (including, but not limited to workers' compensation
claims), discrimination, wrongful discharge, unfair labor practice or
similar claim or cause of action with respect to any act or occurrence
arising prior to or on the Closing Date other than liabilities or
obligations for injury to persons or loss of life assumed by the Buyer in
Sections 2.3(d) and 2.3(e);
(f) any fines or penalties imposed by a governmental agency or
authority resulting from (A) an investigation or proceeding with respect to
any act or occurrence arising prior to or on the Closing Date or (B)
illegal acts, willful misconduct or gross negligence of the Seller prior to
or on the Closing Date.
ARTICLE III
PURCHASE PRICE
3.1. Purchase Price. The purchase price for the Purchased Asset
shall be an amount equal to the sum of $12,500,000 (the "Purchase Price").
3.2. Proration. (a) The Buyer and the Seller agree that all of
the items normally prorated, including those listed below, relating to the
Purchased Asset will be prorated as of the Closing Date, with the Seller
liable to the extent such items relate to any time period through the
Closing Date, and the Buyer liable to the extent such items relate to
periods subsequent to the Closing Date:
(i) real estate, occupancy and any other Taxes (excluding
Income Taxes), assessments and other charges, if any, on or with
respect to the ownership or use of the Purchased Asset;
(ii) rent, Taxes (excluding Income Taxes) and other items
payable by or to the Seller; and
(iii) any permit, license or registration fees with
respect to any Environmental Permit or other permit relating to the
ownership or use of the Purchased Asset ("Permit").
(b) In connection with such proration, in the event that actual
figures are not available at the Closing Date, the proration shall be based
upon the actual amount of such Taxes or fees for the preceding year (or
appropriate period) for which such actual Taxes or fees are available and
such Taxes or fees shall be reprorated upon request of either the Seller or
the Buyer made within sixty (60) days of the date that the actual amounts
become available. The Seller and the Buyer agree to furnish each other
with such documents and other records as may be reasonably requested in
order to confirm all proration calculations made pursuant to this Section
3.2.
ARTICLE IV
THE CLOSING
4.1. Time and Place of Closing. Upon the terms and subject to
the satisfaction of the conditions contained in this Agreement, the closing
of the transactions contemplated by this Agreement (the "Closing") will
take place at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M. (local time) on April
30, 1999; or at such other place or later date and time as the parties may
agree. The date and time at which the Closing actually occurs is
hereinafter referred to as the "Closing Date."
4.2. Payment of Purchase Price. Upon the terms and subject to
the satisfaction of the conditions contained in this Agreement, in
consideration of the aforesaid sale, assignment, conveyance, transfer and
delivery of the Purchased Asset, the Buyer will pay or cause to be paid to
the Seller at the Closing in United States dollars by wire transfer of
immediately available funds or by such other means as are agreed to by the
Seller and the Buyer.
4.3. Deliveries by Seller. At the Closing, the Seller will
deliver the following to the Buyer:
(a) The certificates and the opinions of counsel contemplated by
Sections 8.2(c), (e), and (f);
(b) One or more bargain and sale deeds of conveyance in
statutory form, with covenant against grantor's acts, transferring Seller's
interest in the Purchased Asset to the Buyer, duly executed and
acknowledged by the Seller and in recordable form substantially in the form
of Exhibit B hereto;
(c) Copies of the resolutions adopted by the board of directors
of the Seller, certified by the Secretary of the Seller, as having been
duly and validly adopted and as being in full force and effect, authorizing
the execution and delivery by the Seller of this Agreement and other
closing documents described in this Agreement to which the Seller is a
party, and the performance by the Seller of its obligations hereunder and
thereunder;
(d) All such other instruments of assignment or conveyance as
shall, in the reasonable opinion of the Buyer and its counsel, be necessary
to transfer to the Buyer the Purchased Asset in accordance with this
Agreement and where necessary or desirable, in recordable form;
(e) A certification of non-foreign status in a form which
complies with Section 1445 of the Code and the regulations thereunder;
provided, however, that if the Seller shall fail to deliver such
certification, the Buyer shall withhold at the Closing and pay over to the
appropriate taxing authority any amount equal to ten (10) percent of the
total Amount Realized (as defined under Section 1445 of the Code); and
(f) Such other agreements, documents, instruments and writings
as are required to be delivered by the Seller at or prior to the Closing
Date pursuant to this Agreement or otherwise required in connection
herewith.
4.4. Deliveries by Buyer. At the Closing, the Buyer will deliver
the following to the Seller:
(a) The Purchase Price by wire transfer of immediately available
funds or by such other means as are agreed to by the Seller and the Buyer;
(b) The certificate and opinion of counsel contemplated by
Sections 8.3(c) and (d);
(c) The Instrument of Assumption, duly executed by the Buyer;
(d) All such other instruments of assumption as shall, in the
reasonable opinion of the Seller and its counsel, be necessary for the
Buyer to assume the Assumed Liabilities in accordance with this Agreement;
(e) Copies of the resolutions adopted by the Members or Managers
or other similar governing body of the Buyer, certified by the Member of
the Buyer, as having been duly and validly adopted and as being in full
force and effect, authorizing the execution and delivery by the Buyer of
this Agreement and other closing documents described in this Agreement to
which the Buyer is a party, and the performance by the Buyer of its
obligations hereunder and thereunder;
(f) Such other agreements, documents, instruments and writings
as are required to be delivered by the Buyer at or prior to the Closing
Date pursuant to this Agreement or otherwise required in connection
herewith; and
(g) One or more easements to the extent necessary for Seller to
continue and maintain their transmission and distribution business, in
favor of the Seller (the "Seller's Easements") with respect to the
Purchased Asset conveyed to Buyer, duly executed and acknowledged by Buyer,
each substantially in the form of Exhibit C hereto, and Buyer shall bear
any transfer or similar tax incurred in connection herewith as set forth in
Section 7.8.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to the Buyer as follows:
5.1. Organization; Qualification. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and has all requisite corporate power and authority to
own, lease, and operate its properties and to carry on its business as is
now being conducted. The Seller has heretofore delivered to the Buyer
complete and correct copies of its Certificate of Incorporation and By-Laws
as currently in effect.
5.2. Authority Relative to this Agreement. The Seller has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of the Seller and no other corporate proceedings on the part of
the Seller are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Seller, and assuming that this Agreement
constitutes a valid and binding agreement of the Buyer, subject to the
receipt of the Seller Required Regulatory Approvals and the Buyer Required
Regulatory Approvals, constitutes a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, except
that such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally or general principles of equity.
5.3. Consents and Approvals; No Violation. (a) Except as set
forth in Schedule 5.3(a), and other than obtaining the Seller Required
Regulatory Approvals and the Buyer Required Regulatory Approvals, neither
the execution and delivery of this Agreement by the Seller nor the
performance by Seller of its obligations under this Agreement or the
consummation of the transactions contemplated hereby will (i) conflict with
or result in any breach of any provision of the Certificate of
Incorporation or By-Laws of the Seller, (ii) require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, except (x) where the failure to
obtain such consent, approval, authorization or permit, or to make such
filing or notification, would not have a Material Adverse Effect or would
not prohibit or restrain the execution, delivery or performance of this
Agreement, or the consummation of the transactions contemplated hereby in
any material respect or (y) for those requirements which become applicable
to the Seller as a result of the specific regulatory status of the Buyer
(or any of its Affiliates) or as a result of any other facts that
specifically relate to the business or activities in which the Buyer (or
any of its Affiliates) is or proposes to be engaged; (iii) result in a
default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement or other instrument or
obligation to which the Seller, or any of its subsidiaries, is a party or
by which the Seller, or any of its subsidiaries or any of the Purchased
Asset may be bound, except for such defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers or consents
have been obtained or which, individually or in the aggregate, would not
have a Material Adverse Effect; or (iv) violate any order, writ,
injunction, judgment, law, decree, statute, rule or regulation applicable
to the Seller, or any of its assets, which violation would, individually or
in the aggregate, have a Material Adverse Effect.
(b) Except as set forth in Schedule 5.3(b) and except for (i)
any required approvals under the Federal Power Act, (ii) (A) notice by the
Seller to, and an order by, the NYPSC approving the transactions
contemplated by this Agreement, (B) notice by the Seller to, and an order
by, the NJBPU approving the transactions contemplated by this Agreement and
(C) notice by the Seller to, and an order by, the PAPUC approving the
transactions contemplated by this Agreement, (iii) the approval, if
required, of the SEC pursuant to the Holding Company Act, and (iv) the
filings by the Seller and the Buyer required by the HSR Act and the
expiration or earlier termination of all waiting periods under the HSR Act
(the filings and approvals referred to in clauses (i) through (iv) are
collectively referred to as the "Seller Required Regulatory Approvals"), no
declaration, filing or registration with, or notice to, or authorization,
consent or approval of any governmental or regulatory body or authority is
necessary for the consummation by the Seller of the transactions
contemplated hereby, other than such declarations, filings, registrations,
notices, authorizations consents or approvals which, if not obtained or
made, will not, in the aggregate, have a Material Adverse Effect.
5.4. Undisclosed Liabilities. The balance sheet of the Seller as
of December 31, 1997 is referred to herein as the "Seller Balance Sheet."
Except as set forth in Schedule 5.4, to the Seller's knowledge, the Seller
has no liability or obligation relating to the Purchased Asset, secured or
unsecured (whether absolute, accrued, contingent or otherwise, and whether
due or to become due), of a nature required by generally accepted
accounting principles to be reflected in a corporate balance sheet or
disclosed in the notes thereto, which are not accrued or reserved against
in the Seller Balance Sheet or disclosed in the notes thereto in accordance
with generally accepted accounting principles, except those which either
were incurred in the ordinary course of business, after the date of the
Seller Balance Sheet, or those which in the aggregate are not material to
the Purchased Asset.
5.5. Absence of Certain Changes or Events. Except (i) as set
forth in Schedule 5.5, or in the reports, schedules, registration
statements and definitive proxy statements filed by the Seller with the SEC
and (ii) as otherwise contemplated by this Agreement, to the Seller's
knowledge, since the date of the Seller Balance Sheet there has not been:
(a) any Material Adverse Effect; (b) any damage, destruction or casualty
loss, whether covered by insurance or not, which had a Material Adverse
Effect; (c) any entry into any agreement, commitment or transaction
(including, without limitation, any borrowing or capital financing) by the
Seller, which is material to the Purchased Asset, except agreements,
commitments or transactions in the ordinary course of business or as
contemplated herein; or (d) any change by the Seller, with respect to the
Purchased Asset, in accounting methods, principles or practices except as
required or permitted by generally accepted accounting principles.
5.6. Title. Set forth in Schedule 5.6 is a true and complete
list of all real property which is part of the Purchased Asset. The Seller
has good and marketable record title to the Purchased Asset, subject only
to Permitted Encumbrances.
5.7. Insurance. Except as set forth in Schedule 5.7(a), all
material policies of fire, liability, and other forms of insurance
purchased or held by and insuring or related to the Purchased Asset are in
full force and effect, all premiums with respect thereto covering all
periods up to and including the date as of which this representation is
being made have been paid, and no notice of cancellation or termination has
been received with respect to any such policy which was not replaced on
substantially similar terms prior to the date of such cancellation. Except
as described in Schedule 5.7(b), the Seller has not been refused any
insurance with respect to the Purchased Asset nor has its coverage been
limited by any insurance carrier to which it has applied for any such
insurance or with which it has carried insurance during the last five (5)
years nor has it received written notice from any insurer with respect to
the Purchased Asset of defects or inadequacies with respect thereto or the
improvements located thereon that would materially adversely affect the
insurability of the same or cause the imposition of extraordinary premiums
therefor.
5.8. Environmental Matters. (a) Except as disclosed in Schedule
5.8(a)(i), to the Seller's knowledge, the Seller holds, and is in
compliance with, all permits, licenses, certificates and governmental
authorizations ("Environmental Permits") required for Seller to own or use
the Purchased Asset under applicable Environmental Laws, and the Seller is
otherwise in compliance with applicable Environmental Laws with respect to
the Purchased Asset except for such failures to hold or comply with
required Environmental Permits, or such failures to be in compliance with
applicable Environmental Laws, which, individually or in the aggregate, are
not reasonably likely to have a Material Adverse Effect. Schedule
5.8(a)(ii) sets forth all Environmental Permits relating to the ownership
or use of the Purchased Asset.
(b) The Seller has not received any written request for
information, or been notified that it is a potentially responsible party,
under CERCLA or any similar State law with respect to any on-site or off-
site location related to the Purchased Asset, and no investigation and/or
remediation is being conducted or is pending at the Purchased Asset (other
than investigations or remediation conducted by or on behalf of Seller or
Buyer in connection with this transaction), except for such liability under
such laws or investigation or remediation as would not be reasonably likely
to have a Material Adverse Effect.
(c) With respect to the Purchased Asset, no action, claim
investigation or other proceeding relating to any Environmental Law is
pending or, to the Seller's knowledge, threatened, and Seller has not
entered into or agreed to any consent decree or order, and are not subject
to any judgment, decree, or administrative or judicial order relating to
compliance with any Environmental Law or to investigation or cleanup of
Hazardous Substances under any Environmental Law, except such consent
decrees or orders, judgments, decrees or administrative or judicial orders,
actions, claims, investigations or proceedings that (i) would not be
reasonably likely to have a Material Adverse Effect, (ii) appear on
Schedule 5.8(c) or (iii) relate to off-site disposal locations.
(d) All written reports of audits and studies performed by or on
behalf of Seller, and in the possession of Seller, which concern Releases
of Hazardous Substances at, on, in, or under the Purchased Asset or
compliance of Purchased Asset with Environmental Laws, conducted within the
last two (2) years, are listed in Schedule 5.8(d) and have been provided to
Buyer.
(e) The representations and warranties made in this Section 5.8
are the Seller's exclusive representations and warranties relating to
environmental matters.
5.9. Real Property Encumbrances. Schedule 5.9 lists real
property encumbrances affecting the Purchased Asset including matters
contained in deeds, easements and options. True and correct copies of all
current surveys, abstracts, title opinions and policies of title insurance
currently in force with respect to the Purchased Asset have been delivered
by the Seller to the Buyer. None of the Permitted Encumbrances materially
adversely affect the existing use of the Purchased Asset.
5.10. Condemnation. Except as set forth on Schedule 5.10,
neither the whole nor any part of the Purchased Asset or any other real
property or rights leased, used or occupied by the Seller in connection
with the ownership of the Purchased Asset is subject to any pending suit
for condemnation or other taking by any public authority, and, to the
knowledge of the Seller, no such condemnation or other taking is threatened
or contemplated.
5.11. Certain Contracts and Arrangements. Except as listed
in Schedule 5.11(a), the Seller is not a party to any written contract,
agreement, commitment, understanding or instrument which is material to the
Purchased Asset.
5.12. Legal Proceedings, etc. Except as set forth in
Schedule 5.12 or in any filing made by the Seller pursuant to the
Securities Act or the Exchange Act, there are no claims, actions, or
proceedings pending or investigation pending or, to the Seller's knowledge,
threatened against the Seller relating to the Purchased Asset before any
court, arbitrator, governmental or regulatory authority or body acting in
an adjudicative capacity, which, if adversely determined, would have a
Material Adverse Effect or would prohibit or restrain the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby. Except as set forth in Schedule 5.12,
the Seller is not subject to any outstanding judgment, rule, order, writ,
injunction or decree of any court, governmental or regulatory authority
relating to the Purchased Asset which has a Material Adverse Effect.
5.13. Regulation as a Utility. The Seller and certain of its
subsidiaries are regulated as public utilities in the States of New York,
New Jersey and Pennsylvania, as set forth on Schedule 5.13(a). Except as
set forth on Schedule 5.13(b), the Seller is not subject to regulation as a
public utility or public service company (or similar designation) by the
United States, any State of the United States, any foreign country or any
municipality or any political subdivision of the foregoing.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to the Seller as follows:
6.1. Organization. The Buyer is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority to own, lease
and operate its properties and to carry on its business as now being
conducted. The Buyer has heretofore delivered to the Seller complete and
correct copies of its Certificate of Formation and Limited Liability
Company Agreement (or other similar governing documents), as currently in
effect.
6.2. Authority Relative to this Agreement. The Buyer has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Manager or
Members of the Buyer and the Board of Directors of both Southern Energy,
Inc. and The Southern Company and no other company proceedings on the part
of the Buyer or such Affiliates are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by the Buyer, and assuming
that this Agreement constitutes a valid and binding agreement of the
Seller, subject to the receipt of the Buyer Required Regulatory Approvals
and the Seller Required Regulatory Approvals, constitutes a valid and
binding agreement of the Buyer, enforceable against the Buyer in accordance
with its terms, except that such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally or
general principles of equity.
6.3. Consents and Approvals; No Violation. (a) Except as set
forth in Schedule 6.3(a), and other than obtaining the Buyer Required
Regulatory Approvals and the Seller Required Regulatory Approvals, neither
the execution and delivery of this Agreement by the Buyer nor the purchase
by the Buyer of the Purchased Asset pursuant to this Agreement will (i)
conflict with or result in any breach of any provision of the Certificate
of Formation or Limited Liability Company Agreement (or other similar
governing documents) of the Buyer, (ii) require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, (iii) result in a default (or give
rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, agreement, lease or other instrument or obligation to which the
Buyer or any of its subsidiaries is a party or by which any of their
respective assets may be bound, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained.
(b) Except as set forth in Schedule 6.3(a) , the filings by the
Buyer and the Seller required by the HSR Act (the filings and approvals
referred to in Schedule 6.3(a) and with respect to the HSR Act are
collectively referred to as the "Buyer Required Regulatory Approvals"), no
declaration, filing or registration with, or notice to, or authorization,
consent or approval of any governmental or regulatory body or authority is
necessary for the consummation by the Buyer of the transactions
contemplated hereby.
6.4. Regulation as a Utility. On the Closing Date, the Buyer
will be an exempt wholesale generator under the Holding Company Act,
although it is a subsidiary of a registered public utility holding company
under the Holding Company Act. On the Closing Date, the Buyer also will be
a public utility under the Federal Power Act. Except as set forth in
Schedule 6.4, the Buyer is not subject to regulation as a public utility or
public service company (or similar designation) by the United States, any
State of the United States, any foreign country or any municipality or any
political subdivision of the foregoing.
6.5. Availability of Funds. The Buyer has sufficient funds
available to it or will receive binding written commitments from
responsible financial institutions to provide sufficient funds on the
Closing Date to pay the Purchase Price.
ARTICLE VII
COVENANTS OF THE PARTIES
7.1. Conduct of Business Relating to the Purchased Asset. Except
as described in Schedule 7.1, during the period from the date of this
Agreement to the Closing Date, the Seller will maintain the Purchased Asset
according to its ordinary and usual course of business consistent with Good
Utility Practices. Without limiting the generality of the foregoing, and,
except as contemplated in this Agreement or as described in Schedule 7.1,
prior to the Closing Date, without the prior written consent of the Buyer
(unless such consent would be prohibited by law), the Seller will not with
respect to the Purchased Asset:
(a) make any material change in the maintenance of the Purchased
Asset;
(b) make any capital expenditures with respect to the Purchased
Asset or enter into any contract or commitment therefor;
(c) sell, lease (as lessor), transfer or otherwise dispose of,
any part of the Purchased Asset, other than assets used, consumed or
replaced in the ordinary course of business consistent with Good Utility
Practices and not mortgage or pledge, or impose or suffer to be imposed any
Encumbrance on, any of the Purchased Asset;
(d) amend or terminate prior to the expiration date, or waive
any material term or give consent to any material request with respect to
any of the Permits or Environmental Permits, except to the extent that such
amendment, termination, waiver or consent (i) will not have a material
impact on operations of the Purchased Asset, including the cost of said
operations or (ii) is required by applicable law, including applicable
Environmental Law; and
(e) enter into any contract, agreement, commitment or
arrangement, whether written or oral, with respect to any of the
transactions set forth in the foregoing paragraphs (a) through (d).
7.2. Access to Information. (a) Between the date of this
Agreement and the Closing Date, the Seller will, during ordinary business
hours and upon reasonable notice (i) give the Buyer and the Buyer
Representatives reasonable access to its managerial personnel and all
books, records, and property constituting the Purchased Asset to which the
Buyer is permitted access by law, (ii) permit the Buyer to make such
reasonable inspections thereof as the Buyer may reasonably request,
including conducting environmental sampling at, on and underneath the
Purchased Asset and performing compliance audits at the Purchased Asset, if
Buyer reasonably deems such sampling necessary after reviewing further
information which becomes available after the date hereof, so long as
Seller provides its consent to such sampling, which consent shall not be
unreasonably withheld; (iii) cause its officers and advisors to furnish the
Buyer with such information with respect to the Purchased Asset as the
Buyer may from time to time reasonably request and assist Buyer in such
inspections; (iv) cause its officers and advisors to furnish the Buyer a
copy of each report, schedule or other document filed or received by them
with or from the SEC, NYPSC, NJBPU, PAPUC, FERC, New York Independent
System Operator or other governmental authority with respect to the
Purchased Asset; provided, however, that (A) any such investigation shall
be conducted in such a manner as not to interfere unreasonably with the
Purchased Asset, (B) the Seller shall not be required to take any action
which would constitute a waiver of the attorney-client privilege and (C)
the Seller need not supply the Buyer with any information which the Seller
is under a legal obligation not to supply; provided, however, that Seller
shall have used commercially reasonable efforts to have such obligations
waived.
(b) All information furnished to or obtained by the Buyer and
the Buyer Representatives pursuant to this Section 7.2 shall be subject to
the provisions of the Section 11.2 hereof and shall be treated as
Confidential Information.
(c) For a period of seven (7) years after the Closing Date, the
Seller and its representatives shall have reasonable access to (i) all of
the books and records of the Purchased Asset, as the case may be,
transferred to the Buyer hereunder to the extent that such access (A) may
reasonably be required by the Seller in connection with matters relating to
the Purchased Asset prior to the Closing Date and (B) is not otherwise
prohibited by law. Such access shall be afforded by the Buyer upon receipt
of reasonable advance written notice and during normal business hours. The
Seller shall be responsible for any costs or expenses incurred by them
pursuant to this Section 7.2(c). If the Buyer shall desire to dispose of
any such books and records prior to the expiration of such seven (7) year
period, the Buyer shall, prior to such disposition, give the Seller a
reasonable opportunity at the Seller's expense, to segregate and remove
such books and records as the Seller may select. Any information provided
by Buyer to Seller pursuant to this Section 7.2(c) shall be deemed
Confidential Information.
7.3. Expenses. Except to the extent specifically provided
herein, whether or not the transactions contemplated hereby are
consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the
party incurring such costs and expenses.
7.4. Further Assurances. (a) Subject to the terms and
conditions of this Agreement, each of the parties hereto will use all
commercially reasonable efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
sale of the Purchased Asset pursuant to this Agreement. From time to time
after the date hereof, without further consideration, the Seller will, at
its own expense, execute and deliver such documents to the Buyer as the
Buyer may reasonably request in order more effectively to vest in the Buyer
good title to the Purchased Asset. Neither party shall, without the prior
written consent of the other party, take or fail to take any action which
might reasonably be expected to prevent or materially impede, interfere
with or delay the transactions contemplated by this Agreement. From time
to time after the date hereof, the Buyer will, at its own expense, execute
and deliver such documents to the Seller as the Seller may reasonably
request in order to more effectively consummate the sale of the Purchased
Asset pursuant to this Agreement.
(b) To the extent that any Seller's rights under any guaranties,
warranties and indemnification applicable to the Purchased Asset or the
Assumed Liabilities are nontransferable or nonassignable, Seller shall use
its commercially reasonable efforts to provide to Buyer the benefits
thereof in some other manner upon the request of Buyer.
7.5. Public Statements. The parties shall consult with each
other prior to issuing any public announcement, statement or other
disclosure with respect to this Agreement or the transactions contemplated
hereby and shall not issue any such public announcement, statement or other
disclosure prior to such consultation, except as may be required by law or
stock exchange rules or regulations and except that the parties may make
public announcements, statements or other disclosures with respect to this
Agreement and the transactions contemplated hereby to the extent that such
public announcements, statements or other disclosures do not violate
Section 11.2 of this Agreement.
7.6. Consents and Approvals. (a) The Seller and the Buyer shall
each file or cause to be filed with the Federal Trade Commission and the
United States Department of Justice any notifications required to be filed
under the HSR Act and the rules and regulations promulgated thereunder with
respect to the transactions contemplated hereby. The parties shall consult
with each other as to the appropriate time of filing such notifications and
shall use their best efforts to make such filings at the agreed upon time,
to respond promptly to any requests for additional information made by
either of such agencies, and to cause the waiting periods under the HSR Act
to terminate or expire at the earliest possible date after the date of
filing. Buyer shall bear the cost of all filing fees under the HSR Act.
(b) The Seller and the Buyer shall cooperate with each other and
(i) promptly prepare and file all necessary documentation, (ii) effect all
necessary applications, notices, petitions and filings and execute all
agreements and documents, (iii) use all reasonable efforts to obtain the
transfer or reissuance to the Buyer of all consents, approvals and
authorizations of all governmental bodies and (iv) use all reasonable
efforts to obtain all necessary consents, approvals and authorizations of
all other parties, in the case of each of the foregoing clauses (i), (ii),
(iii) and (iv), necessary or advisable to consummate the transactions
contemplated by this Agreement (including, without limitation, the Seller
Required Regulatory Approvals and the Buyer Required Regulatory Approvals)
or required by the terms of any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or other
instrument to which the Seller or the Buyer is a party or by which either
of them is bound. The Seller shall have the right to review and approve in
advance all characterizations of the information relating to Purchased
Asset; and each of the Seller and the Buyer shall have the right to review
and approve in advance all characterizations of the information relating to
the transactions contemplated by this Agreement which appear in any filing
made in connection with the transactions contemplated hereby. The parties
hereto agree that they will consult with each other with respect to the
transferring to the Buyer or the obtaining by the Buyer of all such
consents, approvals and authorizations of all third parties and
governmental bodies. The Seller and the Buyer shall designate separate
counsel with respect to all applications, notices, petitions and filings
(joint or otherwise) relating to this Agreement and the transactions
contemplated hereby on behalf of the Seller, on the one hand and the Buyer
on the other hand, with all governmental bodies.
(c) The parties hereto shall consult with each other prior to
proposing or entering into any stipulation or agreement with any Federal,
State or local governmental authority or agency or any third party in
connection with any Federal, State or local governmental consents and
approvals legally required for the consummation of the transactions
contemplated hereby and shall not propose or enter into any such
stipulation or agreement without the other party's prior written consent,
which consent shall not be unreasonably withheld.
(d) Buyer shall assume primary responsibility for securing the
transfer or reissuance of the Permits effective as of the Closing Date.
Seller shall cooperate with Buyer's efforts in this regard and shall use
its best efforts to assist in the transfer or reissuance when so requested
by Buyer. In the event that Buyer is unable, despite commercially
reasonable efforts, to obtain a transfer or reissuance of one or more
Permits as of the Closing Date, Buyer may use the Permits issued to Seller
to the extent permissible under applicable laws and regulations provided
(i) Buyer notified Seller prior to Closing, (ii) Buyer continues to make
commercially reasonable efforts to obtain a transfer or reissuance of such
Permits after the Closing, and (iii) Buyer indemnifies Seller for any
losses, claims or penalties suffered by Seller in connection with the
Permit that is not transferred or reissued as of the Closing Date
resulting from Buyer's ownership or use of the Purchased Asset following
the Closing Date. In no event shall Buyer use or otherwise rely on a
Permit issued to Seller beyond one (1) year after Closing unless Buyer has,
after exercising its commercially reasonable efforts, been unable to obtain
same and such reliance is not prohibited by law.
7.7. Fees and Commissions. The Seller and the Buyer each
represent and warrant to the other that, except for ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ"), which is acting for and at the
expense of the Seller, and Credit Suisse First Boston Corporation, which is
acting for and at the expense of the Buyer, no broker, finder or other
Person is entitled to any brokerage fees, commissions or finder's fees in
connection with the transaction contemplated hereby by reason of any action
taken by the party making such representation. The Seller and the Buyer
will pay to the other or otherwise discharge, and will indemnify and hold
the other harmless from and against, any and all claims or liabilities for
all brokerage fees, commissions and finder's fees (other than as described
above) incurred by reason of any action taken by such party.
7.8. Tax Matters. (a) Notwithstanding any other provision of
this Agreement, all transfer, sales and similar Taxes incurred in
connection with this Agreement and the transactions contemplated hereby
shall be borne by the Buyer, and the Buyer will, at its own expense, file,
to the extent required by law, all necessary Tax Returns with respect to
all such Taxes, and, if required by applicable law, the Seller will join in
the execution of any such Tax Returns.
(b) With respect to Taxes to be prorated in accordance with
Section 3.2 of this Agreement only, the Buyer shall prepare and timely file
all Tax Returns required to be filed with respect to the Purchased Asset,
if any, and shall duly and timely pay all such Taxes shown to be due on
such Tax Returns. The Buyer's preparation of any such Tax Returns shall be
subject to the Seller's approval, which approval shall not be unreasonably
withheld. The Buyer shall make such Tax Returns available for the Seller's
review and approval no later than twenty (20) days prior to the due date
for filing such Tax Return. Within ten (10) days after receipt of such Tax
Return, the Seller shall pay to the Buyer its proportionate share of the
amount shown as due on such Tax Return determined in accordance with the
Section 3.2 of this Agreement.
(c) Each of the Buyer and the Seller shall provide the other
with such assistance (including access to the Purchased Asset) as may
reasonably be requested by the other party in connection with the
preparation of any Tax Return, any audit or other examination by any taxing
authority, or any judicial or administrative proceedings relating to
liability for Taxes, and each will retain and provide the requesting party
with any records or information which may be relevant to such return, audit
or examination, proceedings or determination. Any information obtained
pursuant to this Section 7.8 or pursuant to any other Section hereof
providing for the sharing of information or review of any Tax Return or
other schedule relating to Taxes shall be kept confidential by the parties
hereto.
(d) The Seller will consult with and allow Buyer to participate
in all outstanding real property tax disputes concerning the Purchased
Asset and shall take such positions as Buyer may request consistent with
the positions previously communicated to Seller by Buyer with respect to
such tax disputes, to assist Buyer in obtaining a tax agreement for periods
subsequent to the Closing Date. The Seller will use its commercially
reasonable efforts to assist Buyer in obtaining an agreement with the
taxing authorities pursuant to which the assessed value of the Purchased
Asset will be the lowest value achievable. The Seller shall not enter into
any agreement with the taxing authorities with respect to such tax disputes
relating to periods prior to the Closing Date without the written consent
of Buyer which Buyer shall not unreasonably withhold as long as the Seller
has complied with this Section 7.8(d).
7.9. Supplements to Schedules. Prior to the Closing Date, the
Parties shall supplement or amend the Schedules required by Articles V and
VI with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such Schedules. No supplement or amendment of any
Schedule made pursuant to this Section shall be deemed to cure any breach
of any representation or warranty made in this Agreement unless the parties
agree thereto in writing.
7.10. Risk of Loss. (a) From the date hereof through the
Closing Date, all risk of loss or damage to the property included in the
Purchased Asset shall be borne by the Seller.
(b) If, before the Closing Date all or any portion of the
Purchased Asset are taken by eminent domain, or is the subject of a pending
or (to the knowledge of the Seller after reasonable inquiry and
investigation) contemplated taking which has not been consummated, the
Seller shall notify the Buyer promptly in writing of such fact. If such
taking would have a Material Adverse Effect, subject to Section 7.12 of
this Agreement, the Buyer and the Seller shall negotiate in good faith to
settle the loss resulting from such taking (including, without limitation,
by making a fair and equitable adjustment to the Purchase Price) and, upon
such settlement, consummate the transaction contemplated by this Agreement
pursuant to the terms of this Agreement. If no such settlement is reached
within sixty (60) days after the Seller has notified the Buyer of such
taking, then the Buyer may, if such taking relates to the Purchased Asset,
terminate this Agreement pursuant to Section 10.1(f).
(c) If, before the Closing Date all or any material portion of
the Purchased Asset are damaged or destroyed by fire or other casualty, the
Seller shall notify the Buyer promptly in writing of such fact. If such
damage or destruction would have a Material Adverse Effect and the Seller
has not notified the Buyer of its intention to cure such damage or
destruction within fifteen (15) days after its occurrence, the Buyer and
the Seller shall negotiate in good faith to settle the loss resulting from
such casualty (including, without limitation, by making a fair and
equitable adjustment to the Purchase Price and assigning any insurance
proceeds to Buyer at the Closing) and, upon such settlement, consummate the
transactions contemplated by this Agreement pursuant to the terms of this
Agreement. If no such settlement is reached within sixty (60) days after
the Seller has notified the Buyer of such casualty, then the Buyer may
terminate this Agreement pursuant to Section 10.1(f).
7.11. Real Estate Matters. (a) Buyer shall obtain an
American Land Title Association ("ALTA") or New York Board of Title
Underwriters ("NYBTU") owners standard form title policy commitment with
respect to the Purchased Asset (the "Title Commitment") from a title
company of Buyer's choice (the "Title Company") covering title to the
Purchased Asset, together with an ALTA 3.1 zoning endorsement, if
available, including parking and access, and such other endorsements as
Buyer may reasonably request. Seller shall provide the Title Company and
Buyer such information as the Title Company or Buyer may reasonably request
to assist the Title Company in connection with the Title Commitment.
Without limiting the foregoing, Seller shall provide the Title Company and
Buyer a copy of the most recent surveys in their possession regarding the
Purchased Asset. Promptly after receiving the Title Commitment, Buyer
shall notify Seller in writing of any defects in title which are not
Permitted Encumbrances that would cause title to the Purchased Asset to be
uninsurable (any of which is called herein a "Defect of Title"). Buyer
shall be deemed to have waived any objection to any Defect of Title that
was disclosed by the Title Commitment if Buyer fails to notify Seller of
such Defect of Title within thirty (30) days after receipt of such Title
Commitment. With respect to the existence of any Defect of Title that is
not disclosed by the Title Commitment, but which arises prior to Closing,
Buyer shall immediately notify the Seller in writing of any such Defect of
Title.
(b) Seller agrees that upon the written request of Buyer it will
consent and cause its Affiliates to consent to the relocation of the
Seller's Easements so long as (i) Buyer pays the cost of such relocation,
(ii) such relocation will be to space within Buyer's ownership and will not
materially adversely affect the operation of Seller's or its Affiliates'
transmission and distribution business (except for the minimum amount of
downtime associated with the cut over for such relocation process in
accordance with Good Utility Practices), and (iii) the Buyer's requested
relocation is consistent with Good Utility Practices. Seller further
agrees to condition any grant or assignment by it of the Seller's Easements
on the express agreement of its transferee to be bound by the terms and
conditions of this Section 7.11(b).
(c) As to any Seller's Easement which is to be granted by Buyer
at Closing concurrently with the transfer of title to Buyer and prior to
any mortgage or other encumbrance, such Seller's Easements shall include
standard cross-indemnity provisions relating to personal injury, death or
property damage occurring as a result of gross negligence or willful
misconduct in the use of such Easements, whereby each party agrees to
indemnify the other for the consequences of the gross negligence or wilful
misconduct of those for whom the indemnifying party is legally responsible.
7.12. Condemnation. The Seller shall consult with and allow
Buyer to participate in all negotiations with the County of Rockland, New
York ("Rockland County") concerning Rockland County's threat to condemn a
portion of the Purchased Asset. Seller shall use commercially reasonable
efforts to assist Buyer in preventing Rockland County from condemning such
portion of the Purchased Asset. The Seller shall not enter into any
agreement with Rockland County regarding the threatened condemnation
without the prior consent of Buyer, which consent Buyer shall not
unreasonably withhold.
7.13. Environmental Insurance. If Buyer elects to purchase
insurance coverage to cover liabilities arising from Hazardous Substances
present or Released at, on, in or under (i) the Purchased Asset and (ii)
the "Purchased Asset" and "Purchased Asset," as defined in each of the
Other Sales Agreements on or prior to the Closing Date ("Environmental
Insurance"), Seller shall share equally with Buyer the cost of premiums for
such Environmental Insurance, up to a maximum payment by Seller of $200,000
in the aggregate for such insurance relating to (A) the Purchased Asset and
(B) the "Purchased Assets" as defined in each of the Other Sales
Agreements. If Buyer purchases such Environmental Insurance, Buyer shall
add Seller as an additional insured.
7.14. Expansion. The parties recognize that the Buyer may
wish to add additional generating capacity at Bowline Generating Station
("Intended Use") and the value to Buyer for such Intended Use is included
in the Purchase Price. Accordingly, to the extent such action or inaction
does not interfere with or adversely affect the Seller's transmission and
distribution business, Seller agrees that, at Buyer's cost, they: (a) will
use commercially reasonable efforts to cooperate with Buyer's reasonable
request to remove or modify any (i) Permitted Encumbrances which materially
adversely affect Buyer's Intended Use, or (ii) conditions (either physical
or otherwise) which exist at the Purchased Asset which would prevent,
hinder, or otherwise interfere with the Buyer's Intended Use, and (b) shall
not, and shall ensure that their respective affiliates shall not, oppose,
hinder, or interfere with Buyer's efforts to add such additional capacity
and shall cooperate with Buyer's other reasonable requests with respect
thereto.
ARTICLE VIII
CLOSING CONDITIONS
8.1. Conditions to Each Party's Obligations to Effect the
Transactions Contemplated Hereby. The respective obligations of each party
to effect the
transactions contemplated hereby shall be subject to t
fulfillment at or
prior to the Closing Date of the following condition
(a) The waiting period under the HSR Act applicable to the
consummation of the transactions contemplated hereby shall have expired or
been terminated with no order, decree, judgment or injunction enjoining or
prohibiting the consummation of the transactions contemplated hereby having
been issued;
(b) No preliminary or permanent injunction or other order or
decree by any Federal or State court or governmental authority which
prevents or is reasonably likely to prevent the consummation of the
transactions contemplated hereby shall be pending or shall have been issued
and remain in effect (each party agreeing to use its reasonable efforts to
have any such injunction, order or decree lifted) and no statute, rule or
regulation shall have been enacted or interpreted by any State or Federal
government or governmental authority in the United States which prohibits
the consummation of the transactions contemplated hereby;
(c) All Federal, State and local government orders, consents and
approvals required for the consummation of the transactions contemplated
hereby including, without limitation, the Seller Required Regulatory
Approvals and the Buyer Required Regulatory Approvals, shall have become
Final Orders (a "Final Order" means action by the relevant regulatory
authority which has not been reversed, stayed, enjoined, set aside,
annulled or suspended with respect to which any waiting period prescribed
by law before the transactions contemplated hereby may be consummated has
expired, and as to which all conditions to the consummation of such
transaction prescribed by law, regulation or order have been satisfied),
and such Final Order is in form and substance reasonably acceptable to the
party that sought the consent or approval granted by such Final Order (for
purposes of this clause (i), a Final Order shall be deemed to be reasonably
acceptable to such party if it complies in all material respects with the
terms and conditions of such party's application therefor and contains no
additional terms or conditions which would have a Material Adverse Effect
on such party or the ownership or use of the Purchased Asset); provided,
however, that if at the time such order, consent, or approval would
otherwise be deemed to be a Final Order, there shall be pending or
threatened any appeal or challenge thereto, which, if adversely determined,
would cause such order, consent or approval to not be reasonably acceptable
to the party that sought such order, consent or approval, then if such
party who would be adversely affected notifies the other party that such a
pending or threatened appeal or challenge exists (such notification to be
made as soon as reasonably practicable following knowledge of such pending
or threatened appeal or challenge, but in no event later than fifteen (15)
days from date on which any waiting period prescribed by law before the
transactions contemplated hereby may be consummated has expired and all
conditions to the consummation of such transactions prescribed by law,
regulation or order have been satisfied), then such order, consent or
approval shall be deemed to be a Final Order only after all opportunities
for rehearing or judicial review are exhausted and provided, further, that
if the designation of an order, consent or approval as a Final Order shall
be deferred pursuant to the foregoing proviso, the Termination Date shall
be automatically extended for a period of time equal to the period of time
for which the designation as a Final Order has been deferred; and
(d) All consents and approvals required under the terms of any
note, bond, mortgage, indenture, contract or other agreement to which the
Seller or the Buyer, or any of their subsidiaries, is a party for the
consummation of the transactions contemplated hereby shall have been
obtained, other than those which if not obtained, would not, in the
aggregate, have a Material Adverse Effect.
8.2. Conditions to Obligations of Buyer. The obligation of the
Buyer to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment at or prior to the Closing Date of the following
additional conditions:
(a) There shall not have occurred and be continuing, a Material
Adverse Effect;
(b) The Seller shall have performed and complied with in all
respects the covenants and agreements contained in this Agreement required
to be performed and complied with by it on or prior to the Closing Date,
and the representations and warranties of the Seller set forth in this
Agreement shall be true and correct as of the date of this Agreement and as
of the Closing Date as though made at and as of the Closing Date, and the
Buyer shall have received a certificate to that effect signed by an
authorized officer of the Seller;
(c) The Buyer shall have received a certificate from an
authorized officer of the Seller, dated the Closing Date, to the effect
that to the best of such officers' knowledge, after reasonable inquiry and
investigation, the conditions set forth in Sections 8.2(a) and (b) have
been satisfied;
(d) The "Closing" as defined in the Bowline Generating Station
Sales Agreement among the Seller, Consolidated Edison Company of New York
and the Buyer, dated as of the date hereof as such Closing Date may be
extended pursuant to Section 8.4 of the Bowline Generating Station Sales
Agreement, shall have occurred or shall occur concurrently with the Closing
hereunder; and
(e) The Buyer shall have received an opinion from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Date and satisfactory in form
and substance to the Buyer and its counsel, substantially to the effect
that:
(1) The Seller is a corporation organized, existing and in
good standing under the laws of the State of New York and has the
corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby; and the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly authorized by all
requisite corporate action taken on the part of the Seller.
(2) this Agreement has been executed and delivered by the
Seller and (assuming that the Buyer Required Regulatory Approvals are
obtained) is a valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except that such
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity);
(3) the execution, delivery and performance of this
Agreement by the Seller will not (A) constitute a violation of the
Certificate of Incorporation or By-Laws of the Seller, or (B) to
counsel's knowledge constitute a violation or default under those
agreements or instruments set forth on a schedule to this opinion; and
(4) no declaration, filing or registration with, or notice
to, or authorization, consent or approval of any Federal or New York
governmental authority is necessary for the consummation by the Seller
of the Closing other than (i) the Seller Required Regulatory
Approvals, which are addressed below, (ii) declarations, filings or
registrations with, or notices to, or authorizations, consents or
approvals relating to Permits and Environmental Permits and (iii) such
declarations, filings, registrations, notices, authorizations,
consents or approvals which, if not obtained or made, would not,
individually or in the aggregate have a Material Adverse Effect or
prevent Seller from performing its obligations hereunder.
As to any matter contained in such opinion which involves the
laws of any jurisdiction other than the Federal laws of the United States
or the laws of the State of New York, such counsel may rely upon opinions
of counsel which are reasonably acceptable to Buyer and admitted in such
other jurisdictions. Any opinions relied upon by such counsel as aforesaid
shall be delivered together with the opinion of such counsel. Such opinion
may expressly rely as to matters of fact upon certificates furnished by the
Seller and appropriate officers and directors of the Seller and by public
officials.
(f) The Buyer shall have received an opinion from ▇▇▇▇▇, Danzig,
Scherer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP (New Jersey Counsel), Nixon, Hargrave,
Devans & ▇▇▇▇▇, LLP (New York Counsel) and ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
(Pennsylvania Counsel), or other local regulatory counsel for Seller
reasonably acceptable by Buyer, dated the Closing Date and satisfactory in
form and substance to the Buyer and its counsel, substantially to the
effect that:
(1) no declaration, filing or registration with, or notice
to, or authorization, consent or approval of any Federal governmental
authority or any governmental authority in the States of New York, New
Jersey and Pennsylvania is necessary for the consummation by the
Seller of the Closing other than (i) the Seller Required Regulatory
Approvals, which have been obtained and are in full force and effect
with such terms and conditions as were imposed by the applicable
governmental authorities and (ii) such declarations, filings,
registrations, notices, authorizations, consents or approvals which,
if not obtained or made, would not, individually or in the aggregate
have a Material Adverse Effect.
As to any matter contained in such opinion which involves the
laws of any jurisdiction other than the Federal laws of the United States
or the laws of the State of New York, such counsel may rely upon opinions
of counsel which are reasonably acceptable to Buyer and admitted in such
other jurisdictions. Any opinions relied upon by such counsel as aforesaid
shall be delivered together with the opinion of such counsel. Such opinion
may expressly rely as to matters of fact upon certificates furnished by the
Seller and appropriate officers and directors of the Seller and by public
officials.
(g) Buyer shall have received a Title Commitment showing the
Real Property to be insured as subject only to Permitted Encumbrances, and
the effective date of the Title Commitment shall have been updated to the
Closing Date and marked to show the satisfaction of all conditions to the
issuance of the title policy other than conditions within the control of
the Buyer.
8.3. Conditions to Obligations of Seller. The obligation of the
Seller to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment at or prior to the Closing Date of the following
additional conditions:
(a) The Buyer shall have performed its covenants and agreements
contained in this Agreement required to be performed on or prior to the
Closing Date;
(b) The representations and warranties of the Buyer set forth in
this Agreement shall be true and correct as of the date of this Agreement
and as of the Closing Date as though made at and as of the Closing Date;
(c) The Seller shall have received a certificate from an
authorized officer of the Buyer, dated the Closing Date, to the effect
that, to the best of such officer's knowledge, the conditions set forth in
Sections 8.3(a) and (b) have been satisfied; and
(d) The Seller shall have received an opinion from ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LLP, counsel for the Buyer, dated the Closing Date and satisfactory
in form and substance to the Seller and its counsel, substantially to the
effect that:
(i) The Buyer is a limited liability company organized,
existing and in good standing under the laws of the State of Delaware
and has the requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby; and
the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been duly authorized by all
requisite corporate action taken on the part of the Buyer;
(ii) this Agreement has been executed and delivered by the
Buyer and (assuming that the Seller Required Regulatory Approvals and
the Buyer Required Regulatory Approvals are obtained) is a valid and
binding obligation of the Buyer, enforceable against the Buyer in
accordance with its terms, except (A) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
and (B) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain equitable
defenses and to the discretion of the court before which any
proceeding therefore may be brought;
(iii) the execution, delivery and performance of this
Agreement by the Buyer will not constitute a violation of the
Certificate of Formation or Limited Liability Company Agreement (or
other similar governing documents), as currently in effect, of the
Buyer; and
(iv) no declaration, filing or registration with, or notice
to, or authorization, consent or approval of any governmental
authority is necessary for the consummation by the Buyer of the
Closing other than (i) the Buyer Required Regulatory Approvals, all of
which have been obtained and are in full force and effect with such
terms and conditions as shall have been imposed by any applicable
governmental authority; and (ii) such declarations, filings,
registrations, notices, authorizations, consents or approvals which,
if not obtained or made, would not, in the aggregate have a Material
Adverse Effect.
As to any matter contained in such opinion which involves the
laws of any jurisdiction other than the Federal laws of the United States
and the State of New York, such counsel may rely upon opinions of counsel
admitted to practices in such other jurisdictions. Any opinions relied
upon by such counsel as aforesaid shall be delivered together with the
opinion of such counsel. Such opinion may expressly rely as to matters of
facts upon certificates furnished by appropriate Members and Managers of
the Buyer and its subsidiaries and by public officials.
ARTICLE IX
INDEMNIFICATION
9.1. Indemnification. (a) The Seller will indemnify, defend and
hold harmless the Buyer, Buyer's Affiliates, and their respective Members,
Managers, employees and agents (each a "Buyer Indemnitee") from and against
any and all causes of action, claims, demands or suits (by any Person),
losses, liabilities, damages (excluding consequential and special damages),
obligations, payments, costs, Taxes and expenses (including, without
limitation, the costs and expenses of any and all actions, suits,
proceedings, assessments, judgments, settlements and compromises relating
thereto and reasonable attorneys' fees and reasonable disbursements in
connection therewith) to the extent the foregoing are not covered by
insurance, (collectively, "Indemnifiable Losses"), asserted against or
suffered by the Buyer Indemnitee relating to, resulting from or arising out
of (i) any breach by the Seller of any covenant or agreement of the Seller
contained in this Agreement; (ii) the Excluded Liabilities; (iii) the
Excluded Assets; (iv) any breach of the representation in Sections 5.1, 5.2
and 5.3 hereof or (v) the gross negligence or willful misconduct of Seller,
its Affiliates or its contractors while on Buyer's property (including,
without limitation, any easement provided the Seller with respect to such
property) after the Closing to the extent such Indemnifiable Loss is not
caused by the negligence or willful misconduct of any Buyer Indemnitee.
(b) The Buyer will indemnify, defend and hold harmless the
Seller, Seller's Affiliates, and their respective directors, officers,
employees and agents (each a "Seller Indemnitee") from and against any and
all Indemnifiable Losses asserted against or suffered by the Seller
relating to, resulting from or arising out of (i) any breach by the Buyer
of any covenant or agreement of the Buyer contained in this Agreement, (ii)
the Assumed Liabilities, (iii) its use of the Purchased Asset after the
Closing Date, (iv) any breach of any representation in Article VI or (v)
the gross negligence or willful misconduct of Buyer, its Affiliates or
their respective contractors while on Seller's property after the Closing,
to the extent such Indemnifiable Loss is not caused by the negligence or
willful misconduct of any Seller Indemnitee.
(c) Either the party required to provide indemnification under
this Agreement (the "Indemnifying Party") or the entity or person entitled
to receive indemnification under this Agreement (the "Indemnitee") may
assert any offset or similar right in respect of its obligations under this
Section 9.1 based upon any actual or alleged breach of any covenant or
agreement contained in this Agreement.
(d) Any Indemnitee having a claim under these indemnification
provisions shall make a good faith effort to recover all losses, damages,
costs and expenses from insurers of such Indemnitee under applicable
insurance policies so as to reduce the amount of any Indemnifiable Loss
hereunder. The amount of any Indemnifiable Loss shall be reduced (i) to
the extent that Indemnitee receives any insurance proceeds with respect to
an Indemnifiable Loss and (ii) to take into account any Tax or Income Tax
benefit recognized by the Indemnitee arising from the recognition of the
Indemnifiable Loss, net of any Tax or Income Tax detriment, and any payment
actually received with respect to an Indemnifiable Loss.
(e) The expiration, termination or extinguishment of any
covenant, agreement, representation or warranty shall not affect the
parties' obligations under this Section 9.1 if the Indemnitee provided the
Indemnifying Party with proper notice of the claim or event for which
indemnification is sought prior to such expiration, termination or
extinguishment.
(f) The Seller and the Buyer shall have indemnification
obligations with respect to Indemnifiable Losses asserted against or
suffered by the Seller or the Buyer, as the case may be, to the extent that
the aggregate of all such Indemnifiable Losses exceed the Indemnification
Floor. It is agreed and understood that neither the Seller nor the Buyer,
as the case may be, shall have any liability at any time for Indemnifiable
Losses asserted against or suffered by the other party until the aggregate
amount of Indemnifiable Losses asserted or suffered by such other party
under this Section 9.1 shall exceed the Indemnification Floor, and then
only to the extent that the aggregate amount of Indemnifiable Losses
exceeds the Indemnification Floor. The term "Indemnification Floor" shall
mean an amount equal to $200,000.
(g) The rights and remedies of the Seller and the Buyer under
this Article IX are exclusive and in lieu of any and all other rights and
remedies which the Seller and the Buyer may have under this Agreement for
monetary relief with respect to (i) any breach or failure to perform any
covenant or agreement set forth in this Agreement; (ii) the Assumed
Liabilities or the Excluded Liabilities, as the case may be; or (iii) any
other liabilities described in Section 9.1(a) or 9.1(b).
9.2. Defense of Claims. (a) If any Indemnitee receives written
notice of the assertion of any claim or of the commencement of any claim,
action, or proceeding made or brought by any Person who is not a party to
this Agreement or any affiliate of a party to this Agreement (a "Third
Party Claim") with respect to which indemnification is to be sought from an
Indemnifying Party, the Indemnitee will give such Indemnifying Party
reasonably prompt written notice thereof, but in any event not later than
thirty (30) calendar days after the Indemnitee's receipt of notice of such
Third Party Claim. Such notice shall describe the nature of the Third
Party Claim in reasonable detail and will indicate the estimated amount, if
practicable, of the Indemnifiable Loss that has been or may be sustained by
the Indemnitee.
(b) The party defending the Third Party Claim shall (a) consult
with the other throughout the pendency of the Third Party Claim regarding
the investigation, defense, settlement, compromise, trial, appeal or other
resolution thereof; and (b) afford the other party the opportunity, by
notice, to participate and be associated in the defense of any Third Party
Claim through counsel chosen by such other party, at its own expense, in
the defense of any Third Party Claim as to which a party has elected to
conduct and control the defense thereof. The parties shall cooperate in
the defense of the Third Party Claim. The Indemnitee shall make available
to the Indemnifying Party or its representatives all records and other
materials reasonably required for use in contesting any Third Party Claim
(subject to such confidentiality provisions as the Indemnitee may
reasonably require) and shall furnish such testimony and attend such
conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably requested by the Indemnifying Party in connection therewith. If
requested by the Indemnifying Party, the Indemnitee shall cooperate with
the Indemnifying Party and its counsel in contesting any Third Party Claim
that the Indemnifying Party elects to contest or, if appropriate, in making
any counterclaim against the Person asserting the claim or demand, or any
cross-complaint against any Person. The Indemnifying Party shall reimburse
the Indemnitee for any expenses incurred by Indemnitee in cooperating with
or acting at the request of the Indemnifying Party.
(c) If within ten (10) calendar days after an Indemnitee
provides written notice to the Indemnifying Party of any Third Party Claim
the Indemnitee receives written notice from the Indemnifying Party that
such Indemnifying Party has elected to assume the defense of such Third
Party Claim as provided in the last sentence of Section 9.2(a), the
Indemnifying Party will not be liable for any legal expenses subsequently
incurred by the Indemnitee in connection with the defense thereof;
provided, however, that if the Indemnifying Party fails to take reasonable
steps necessary to defend diligently such Third Party Claim within twenty
(20) calendar days (unless waiting twenty (20) calendar days would
prejudice the Indemnitee's rights) after receiving notice from the
Indemnitee that the Indemnitee believes the Indemnifying Party has failed
to take such steps, the Indemnitee may assume its own defense, and the
Indemnifying Party will be liable for all reasonable expenses thereof.
Without the prior written consent of the Indemnitee, the Indemnifying Party
will not enter into any settlement of (a) any Third Party Claim with
respect to Income Taxes or (b) any other Third Party Claim which would lead
to liability or create any financial or other obligation on the part of the
Indemnitee for which the Indemnitee is not entitled to indemnification
hereunder. If a firm offer is made to settle a Third Party claim without
leading to liability or the creation of a financial or other obligation on
the part of the Indemnitee for which the Indemnitee is not entitled to
indemnification hereunder and the Indemnifying Party desires to accept and
agree to such offer, the Indemnifying Party will give written notice to the
Indemnitee to that effect. If the Indemnitee fails to consent to such firm
offer (other than with respect to Income Taxes) within ten (10) calendar
days after its receipt of such notice, the Indemnitee may continue to
contest or defend such Third Party Claim and, in such event, the maximum
liability of the Indemnifying Party as to such Third Party Claim will be
the amount of such settlement offer, plus reasonable costs and expenses
paid or incurred by the Indemnitee up to the date of such notice.
Notwithstanding the foregoing, the Indemnitee shall have the right to pay,
compromise, or settle any Third Party Claim (other than with respect to
Income Taxes) at any time, provided that in such event the Indemnitee shall
waive any right to indemnity hereunder unless the Indemnitee shall have
first sought the consent of the Indemnifying Party in writing to such
payment, settlement, compromise and such consent was unreasonably withheld
or delayed, in which event no claim for indemnity therefor hereunder shall
be waived.
(d) Any claim by an Indemnitee on account of an Indemnifiable
Loss which does not result from a Third Party Claim (a "Direct Claim") will
be asserted by giving the Indemnifying Party reasonably prompt written
notice thereof, stating the nature of such claim in reasonable detail and
indicating the estimated amount, if practicable, but in any event not later
than thirty (30) calendar days after the Indemnitee becomes aware of such
Direct Claim, and the Indemnifying Party will have a period of thirty (30)
calendar days (unless waiting thirty (30) days would prejudice the
Indemnitee's rights, in which case such period as would likely not
prejudice the Indemnitee's rights, but in no event less than ten (10) days)
within which to respond to such Direct Claim. If the Indemnifying Party
does not respond within such thirty calendar day period, the Indemnifying
Party will be deemed to have accepted such Direct Claim. If the
Indemnifying Party rejects such Direct Claim, the Indemnitee will be free
to seek enforcement of its rights to indemnification under this Agreement.
(e) If the amount of any Indemnifiable Loss, at any time
subsequent to the making of an indemnity payment in respect thereof, is
reduced by recovery, settlement or otherwise under or pursuant to any
insurance coverage, or pursuant to any claim, recovery, settlement or
payment by or against any other entity, the amount of such reduction, less
any costs, expenses or premiums incurred in connection therewith (together
with interest thereon from the date of payment thereof at the prime rate
then in effect of the Chase Manhattan Bank), will promptly be repaid by the
Indemnitee to the Indemnifying Party. Upon making any indemnity payment,
the Indemnifying Party will, to the extent of such indemnity payment, be
subrogated to all rights of the Indemnitee against any third party in
respect of the Indemnifiable Loss to which the indemnity payment relates;
provided, however, that (i) the Indemnifying Party will then be in
compliance with its obligations under this Agreement in respect of such
Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of
its Indemnifiable Loss, any and all claims of the Indemnifying Party
against any such third party on account of said indemnity payment is hereby
made expressly subordinated and subjected in right of payment to the
Indemnitee's rights against such third party. Without limiting the
generality or effect of any other provision hereof, each such Indemnitee
and Indemnifying Party will duly execute upon request all instruments
reasonably necessary to evidence and perfect the above-described
subrogation and subordination rights. Nothing in this Section 9.2(e) shall
be construed to require any party hereto to obtain or maintain any
insurance coverage.
(f) A failure to give timely notice as provided in this
Section 9.2 will not affect the rights or obligations of any party
hereunder except if, and only to the extent that, as a result of such
failure, the party which was entitled to receive such notice was actually
prejudiced as a result of such failure.
ARTICLE X
TERMINATION AND ABANDONMENT
10.1. (a) This Agreement may be terminated at any time prior
to Closing Date, by mutual written consent of the Buyer and the Seller.
(b) This Agreement may be terminated by the Seller or Buyer if
(i) the Closing shall not have been consummated on or before September 30,
1999 (the "Termination Date"); provided that the right to terminate this
Agreement under this Section 10.1(b) shall not be available to Seller or
Buyer if its failure to fulfill any obligation under this Agreement has
been the cause of, or resulted in, the failure of the Closing to occur on
or before such date; and provided, further, that if on September 30, 1999
the conditions to the Closing set forth in Section 8.1(c) shall not have
been fulfilled but all other conditions to the Closing shall be fulfilled
or shall be capable of being fulfilled, then the Termination Date shall be
the day which is eighteen (18) months from the date of this Agreement.
(c) This Agreement may be terminated by either the Seller or the
Buyer if (i) any governmental or regulatory body, the consent of which is a
condition to the obligations of the Seller and the Buyer to consummate the
transactions contemplated hereby, shall have determined not to grant its
consent, or shall condition such consent upon any material change to the
terms of this Agreement or upon any other condition that materially and
adversely affects the value of the transactions contemplated herein or
therein for either party, and all appeals of such determination shall have
been taken and have been unsuccessful; (ii) any court of competent
jurisdiction in the United States or any State shall have issued an order,
judgment or decree permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated hereby and such order, judgment
or decree shall have become final and nonappealable; or (iii) any statute,
rule or regulation shall have been enacted or interpreted by any State or
Federal government or governmental agency in the United States which
prohibits the transactions contemplated herein.
(d) This Agreement may be terminated by the Buyer, if there has
been a material violation or breach by the Seller of any agreement,
representation or warranty contained in this Agreement which (i) has
rendered the satisfaction of any condition to the obligations of the Buyer
impossible and such violation or breach has not been waived by the Buyer or
(ii) causes a Material Adverse Effect, of which Buyer has notified Seller,
and which Seller has not promptly exercised commercially reasonable efforts
to cure but in no event later than twenty (20) days following such
notification by Buyer.
(e) This Agreement may be terminated by the Seller, if there has
been a material violation or breach by the Buyer of any agreement,
representation or warranty contained in this Agreement which has rendered
the satisfaction of any condition to the obligations of the Seller
impossible and such violation or breach has not been waived by the Seller
or cured by Buyer within fifteen (15) days after receipt by Buyer of notice
specifying same.
(f) This Agreement may be terminated by either the Seller or the
Buyer in accordance with the provisions of Section 7.10(b) or (c) hereof.
10.2. Procedure and Effect of Termination. In the event of
termination of this Agreement by either or both of the parties pursuant to
Section 10.1, written notice thereof shall forthwith be given by the
terminating party to the other party and this Agreement shall terminate and
the transactions contemplated hereby shall be abandoned, without further
action by any of the parties hereto. If this Agreement is terminated as
provided herein, such termination shall be without any further liability of
either party or parties to the other party or parties except as follows:
(a) in the event of termination of this Agreement by Seller
pursuant to Section 10.1(e), Seller shall have the right to pursue all
remedies available to it in equity or at law in connection with the
violation or breach of this Agreement by Buyer;
(b) in the event of termination of this Agreement by Buyer
pursuant to Section 10.1(d), Buyer shall have the right to pursue all
remedies available to it in equity or at law in connection with the
violation or breach of this Agreement by Seller; and
(c) all filings, applications and other submissions made
pursuant to this Agreement, to the extent practicable, shall be withdrawn
from the agency or other person to which they were made.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified or supplemented only by written
agreement of the Seller and the Buyer.
11.2. Confidentiality. (a) All information regarding a
party (the "Disclosing Party") that is furnished directly or indirectly to
the other party (the "Recipient") pursuant to this Agreement and marked
"Confidential" shall be deemed "Confidential Information." Notwithstanding
the foregoing, Confidential Information does not include information that
(i) is rightfully received from Recipient from a third party having an
obligation of confidence to the Disclosing Party, (ii) is or becomes in the
public domain, through no action on Recipient's part in violation of this
Agreement, (iii) is already known by Recipient as of the date hereof, or
(iv) is developed by Recipient independently of any Confidential
Information of the Disclosing Party. Information that is specific as to
certain data shall not be deemed to be in the public domain merely because
such information is embraced by more general disclosure in the public
domain.
(b) Recipient shall keep the Confidential Information strictly
confidential and not disclose any Confidential Information to any third
party for a period of two (2) years from the date the Confidential
Information was received by Recipient, except as otherwise provided herein.
(c) Recipient may disclose the Confidential Information to its
and its Affiliates' respective directors, officers, employees, consultants,
advisors and agents who need to know the Confidential Information for the
purpose of assisting Recipient with respect to its obligations under this
Agreement. Recipient shall inform all such parties, in advance, of the
confidential nature of the Confidential Information. Recipient shall cause
such parties to comply with the requirements of this Agreement and shall be
responsible for the actions, uses, and disclosures of all such parties.
(d) If Recipient becomes legally compelled or required to
disclose any of the Confidential Information (including, without
limitation, pursuant to the rules or regulations of the NYPP, ISO or FERC),
Recipient will provide the Disclosing Party with prompt written notice
thereof so that the Disclosing Party may seek a protective order or other
appropriate remedy. Recipient will furnish only that portion of the
Confidential Information which its counsel considers legally required, and
Recipient will cooperate, at the Disclosing Party's expense, with the
Disclosing Party's counsel to enable the Disclosing Party to obtain a
protective order or other reliable assurance that confidential treatment
will be accorded the Confidential Information. It is further agreed that
in the event that a protective order or other remedy is not obtained, the
Recipient will furnish only that portion of the Confidential Information
which, in the written opinion of the Recipient's counsel, is legally
required to be disclosed and, upon the Disclosing Party's request, use
commercially reasonable efforts to obtain assurances that confidential
treatment will be accorded to such information.
(e) Recipient shall promptly return to the Disclosing Party all
items containing or constituting Confidential Information, together with
all copies, extracts, or summaries thereof, upon the earlier of (i) the
Disclosing Party's request, or (ii) the termination or expiration of this
Agreement.
11.3. Waiver of Compliance; Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply
with any obligation, covenant, agreement or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to,
any subsequent or other failure.
11.4. No Survival. Subject to the provisions of Article X,
each and every representation, warranty and covenant contained in this
Agreement (other than the covenants contained in Sections 3.2, 7.2(b),
7.2(c), 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 9.1 and 9.2) and in Article XI (which
covenants shall survive in accordance with their terms) and other than the
representations and warranties contained in Sections 5.1, 5.2, 5.3, 6.1,
6.2 and 6.3 (which representations and warranties shall survive for twelve
(12) months from the Closing) shall expire with, and be terminated and
extinguished by the consummation of the sale of the Purchased Asset and the
transfer of the Assumed Liabilities pursuant to this Agreement and such
representations, warranties and covenants shall not survive the Closing
Date; and none of the Seller, the Buyer or any officer, director, trustee
or Affiliate of either of them shall be under any liability whatsoever with
respect to any such representation, warranty or covenant.
11.5. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon receipt on a
Business Day if during the normal business hours of the recipient, or if
not, on the next Business Day, if delivered personally or by facsimile
transmission, telexed or mailed by overnight courier or registered or
certified mail (return receipt requested), postage prepaid, to the parties
at the following addresses (or at such other address for a party as shall
be specified by like notice):
(a) If to the Seller, to:
Orange and Rockland Utilities, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
with copies to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(b) If to Buyer, to:
Southern Energy Bowline LLC
c/o Southern Energy, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice-President
with copies to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
and
Southern Company Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and Associate General
Counsel
11.6. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any party hereto, including by operation of law without the
prior written consent of the other party, nor is this Agreement intended to
confer upon any other Person except the parties hereto any rights or
remedies hereunder. The Buyer acknowledges that Seller has entered into an
Agreement and Plan of Merger whereby Seller will become a wholly-owned
subsidiary of Consolidated Edison, Inc. ("CEI"). Notwithstanding any other
provision of this Section 11.6, the Buyer agrees that this Agreement may be
assigned to CEI, or a wholly-owned affiliate of CEI without the Buyer's
consent. Notwithstanding the foregoing, (a) Buyer may assign all of its
rights and obligations hereunder to any wholly-owned subsidiary (direct or
indirect) of Buyer or Buyer's parent and upon Seller's receipt of notice
from Buyer of any such assignment, such assignee will be deemed to have
assumed, ratified, agreed to be bound by and perform all such obligations,
and all references herein to "Buyer" shall thereafter be deemed to be
references to such assignee, in each case without the necessity for further
act or evidence by the parties hereto or such assignee; and (b) Buyer or
its permitted assignee may assign, transfer, pledge or otherwise dispose of
its rights and interests hereunder to a trustee or lending institutions for
the purposes of financing or refinancing the Purchased Asset, including
upon or pursuant to the exercise of remedies with respect to such financing
or refinancing, or by way of assignments, transfers, pledges, or other
dispositions in lieu thereof; provided, however, that no such assignment or
other disposition shall relieve or in any way discharge Buyer or such
assignee from the performance of Buyer's obligations under this Agreement.
Seller agrees, at Buyer's expense, to execute and deliver such documents as
may be reasonably necessary to accomplish any such assignment, transfer,
pledge or other disposition of rights and interests hereunder so long as
Seller's rights under this Agreement are not thereby altered, amended,
diminished or otherwise impaired.
11.7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless
of the laws that might otherwise govern under applicable New York
principles of conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and
remedies, and the Seller and the Buyer hereby agree to irrevocably and
unconditionally submit to the exclusive jurisdiction of any State or
Federal court sitting in New York City over any suit, action or proceeding
arising out of or relating to this Agreement. If requested by Seller,
Buyer will consent to appointing an agent for service of process in New
York City.
11.8. Specific Performance. Seller and Buyer agree that a
material breach of this Agreement will cause the non-breaching party
immediate and irreparable harm that monetary damages cannot adequately
remedy, and therefore, in addition to all other remedies hereunder, the
parties agree that, upon any actual or impending material breach of this
Agreement, the non-breaching party shall be entitled to equitable relief,
including injunctive relief and specific performance, without bond or proof
of damages, and in addition to any other remedies that the non-breaching
party may have under applicable law.
11.9. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.10. Interpretation. The article and section headings
contained in this Agreement are solely for the purpose of reference, are
not part of the agreement of the parties and shall not in any way affect
the meaning or interpretation of this Agreement.
11.11. Entire Agreement. This Agreement including the
Exhibits and Schedules referred to herein, the Confidentiality Agreement
and the Guaranty given to Seller by Southern Energy, Inc. embody the entire
agreement and understanding of the parties hereto in respect of the
transactions contemplated by this Agreement. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other
than those expressly set forth or referred to herein or therein. It is
expressly acknowledged and agreed that there are no restrictions, promises,
representations, warranties, covenants or undertakings of Seller contained
in any material made available to the Buyer pursuant to the terms of the
Confidentiality Agreement (including the Information Memorandum, dated May
1998, previously made available to the Buyer by the Seller and DLJ). This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such transactions other than the Confidentiality
Agreement.
11.12. Bulk Sales or Transfer Laws. The Buyer acknowledges
that the Seller will not comply with the provision of any bulk sales or
transfer laws of any jurisdiction in connection with the transactions
contemplated by this Agreement. The Buyer hereby waives compliance by the
Seller with the provisions of the bulk sales or transfer laws of all
applicable jurisdictions.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
agreement to be signed by their respective duly authorized officers as of
the date first above written.
ORANGE AND ROCKLAND UTILITIES, INC.
By /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice Chairman and
Chief Executive Officer
SOUTHERN ENERGY BOWLINE, L.L.C.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President