AGREEMENT TO PURCHASE
MEMBERSHIP INTERESTS
Between
INDECK MAINE ENERGY, L.L.C.
as Seller,
And
RIDGEWOOD MAINE, L.L.C.
as Buyer,
Dated as of June 11, 1997
Acquisition of Membership Interests
In Indeck Maine Energy, L.L.C.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INTERPRETATIONS 1
1.1 Defined Terms 1
1.2 Interpretations 5
ARTICLE 2 SALE AND PURCHASE OF BUYER'S MEMBERSHIP INTEREST;
PURCHASE PRICE 6
2.1 Sale of Buyer's Membership Interest 6
2.2 Manner of Payment 6
ARTICLE 3 CLOSING DATE AND ACTIONS AT CLOSING 6
3.1 Closing Date 6
3.2 Actions at Closing 6
3.2.1 Delivery of Closing Documents 6
3.2.2 Payment of Buyer's Membership Interest Purchase Price 6
3.3 Additional Actions 6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
RELATING TO SELLER, ITS MEMBERS AND AFFILIATES 6
4.1 Due Organization 7
4.2 Power and Authority 7
4.3 Valid, Binding and Enforceable Obligations 7
4.4 No Violations 7
4.5 Governmental Consents and Notices 7
4.6 Additional Consents and Notices 8
4.7 Membership Interests 8
4.8 Bankruptcy 8
4.9 Business of Seller 8
4.10 Utility Status 8
4.11 Adequacy of the Seller Assets 9
4.12 No Undisclosed Liabilities 9
ARTICLE 5 REPRESENTATIONS AND WARRANTIES RELATING TO
THE FACILITIES 10
5.1 No Litigation 10
5.2 Qualifying Facility Matters 10
5.3 Seller's Assets 10
5.3.1 Real Property Rights; Title Insurance 10
5.3.2 Title to Seller Assets 10
5.4 Project Documents 11
5.5 No Employees, Etc 11
5.6 Permits 11
5.7 General Legal Compliance 12
5.8 Environmental Legal Compliance 12
5.9 Insurance 12
5.10 Utilities 12
5.11 Facility Construction and Condition 12
5.12 Securities Laws 13
5.13 Brokers 13
5.14 Tax Returns 13
ARTICLE 6 BUYER'S REPRESENTATIONS AND WARRANTIES 13
6.1 Due Organization 13
6.2 Power and Authority 13
6.3 Valid, Binding and Enforceable Obligations 14
6.4 No Violations 14
6.5 Bankruptcy 14
6.6 No Litigation 14
6.7 Investment Intent 14
6.8 Accredited Investor 15
6.9 Brokers' Fees 15
ARTICLE 7 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS 15
7.1 No Termination 15
7.2 Representations True and Correct; Certificate 16
7.3 Compliance with Covenants; Certificate 16
7.4 No Adverse Proceedings 16
7.5 Proceedings Satisfactory 16
7.6 No Adverse Changes 16
7.7 Consents and Notices 16
7.8 Legal Opinion 16
7.9 Execution and Delivery of Closing Documents 16
7.10 No Violations 17
7.11 Closing Actions 17
7.12 Seller Documents 17
ARTICLE 8 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS 17
8.1 No Termination 17
8.2 Representations True and Correct; Certificate 17
8.3 Compliance with Covenants; Certificate 17
8.4 No Adverse Proceedings 17
8.5 Proceedings Satisfactory 18
8.6 Consents and Notices 18
8.7 Legal Opinion 18
8.8 Execution and Delivery of Closing Documents 18
8.9 No Violations 18
8.10 Closing Actions 18
ARTICLE 9 INDEMNIFICATION 18
9.1 Indemnification by Seller 18
9.2 Indemnification by Buyer. 19
ARTICLE 10 ADDITIONAL COVENANTS AND TERMINATION 19
10.1 Seller's General Pre-Closing Covenants 19
10.1.1 Full Access 19
10.1.2 Furnishing Information 19
10.1.3 Consultation with Accountants 19
10.1.4 Discussions with Facility Participants 19
10.1.5 Representations and Warranties 20
10.1.6 Conduct of Business 20
10.1.7 Preservation of Assets, Relationships, Etc. 20
10.1.8 New Obligations 20
10.1.9 No Defaults or Events of Default 20
10.1.10 No Solicitations, Etc. 20
10.1.11 Notification 20
10.1.12 Spare Parts 20
10.2 Filings and Consents 20
10.3 Provision of Information 21
10.4 Further Assurances 21
10.5 Termination 21
10.5.1 By Mutual Agreement 21
10.5.2 By Buyer 21
10.5.3 By Seller 21
10.5.4 By Any Party 21
ARTICLE 11 TAX MATTERS 21
11.1 Sales and Transfer Taxes 21
11.2 Income Tax Matters 22
11.2.1 Certain Income Tax Effects of the Transactions 22
ARTICLE 12 MISCELLANEOUS 22
12.1 Transaction Costs 22
12.2 Entire Agreement 22
12.3 Amendments 22
12.4 Assignments 22
12.5 Binding Effect 22
12.6 Headings 22
12.7 Notices 22
12.8 Severability 23
12.9 Waivers 23
12.10 Enforcement Costs 24
12.11 Remedies Cumulative 24
12.12 Counterparts 24
12.13 Governing Law 24
12.14 Preparation of Agreement 24
12.15 Survival 24
12.16 Inducement to Transaction 24
ARTICLE 13 EXECUTION CLAUSE 25
AGREEMENT TO PURCHASE MEMBERSHIP INTERESTS
THIS AGREEMENT TO PURCHASE MEMBERSHIP INTERESTS (the "Agreement") is made
and entered into as of June 11, 1997, between Indeck Maine Energy, L.L.C., a
limited liability company organized under the laws of the State of Illinois
(the "Seller"), and Ridgewood Maine, L.L.C., a limited liability company
organized under the laws of the State of Delaware (the "Buyer"), with
reference to the following recitals:
RECITALS
A. Seller has been formed as a limited liability company under the laws
of the State of Illinois;
B. The persons listed in Schedule 4.1 attached hereto own 100% of the
outstanding membership interests in Seller (the "Existing Members");
C. Seller owns and operates all of the assets comprising the Facilities
(as defined below). Seller has contracted to provide electrical energy and
capacity to the participants in NEPOOL (as defined below) pursuant to the
Power Purchase Agreement (as defined below).
D. At the closing described below, Buyer will acquire from Seller and
Seller will sell to Buyer the Buyer's Membership Interest (as defined below).
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants set forth below, the parties, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
1.1 Defined Terms. Capitalized terms used in this Agreement without
other definition shall have the meanings specified in this Section 1.1, unless
the context requires otherwise.
"Additional Consents and Notices" has the meaning set forth in Section
4.6.
"Affiliate" of a specified Person means any other Person that directly,
or indirectly through one or more intermediaries, controls, is controlled by
or is under common control with the Person specified. For purposes of the
foregoing, "control," "controlled by" and "under common control with," with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or by contract
or otherwise.
"Agreement" means this Agreement, including all Exhibits and Schedules.
"Buyer" has the meaning set forth in the Preamble.
"Buyer's Membership Interest" means the membership interest in Seller,
which Buyer is purchasing pursuant to this Agreement, which interest is
described more fully in the Operating Agreement.
"Buyer's Membership Interest Purchase Price" means an amount of Fourteen
Million Dollars ($14,000,000).
"Closing" has the meaning set forth in Section 3.1.
"Closing Date" has the meaning set forth in Section 3.1.
"Closing Documents" means, collectively, this Agreement, the Operating
Agreement and the Existing Members' Consent and Guaranty.
"Code" means the Internal Revenue Code of 1986, as amended, and all rules
and regulations adopted thereunder.
"Default" means, when used with reference to any agreement without other
reference, any event or circumstances that, with the giving of notice or lapse
of time, or both, would, unless cured or waived, become an Event of Default
under such agreement.
"Environmental Laws" means, collectively, all federal, state, local and
other applicable laws, statutes and regulations, which in any way relates to
health, safety or the environment, including without limitation the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. ( 9601 et seq.; the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976, as amended by the Solid and
Hazardous Waste Amendments of 1984, 42 U.S.C. ( 6901 et seq.; the Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33
U.S.C. ( 1251 et seq.; the Toxic Substances Control Act of 1976, 15 U.S.C. (
2601 et seq.; the Emergency Planning and Community Right-To-Know Act of 1986,
42 U.S.C. ( 11001 et seq.; the Clean Air Act of 1966, as amended, 42 U.S.C. (
7401 et seq.; the National Environmental Policy Act of 1975, 42 U.S.C. (
4231; the Rivers and Harbours Act of 1899, 33 U.S.C. ( 401 et seq.; the
Endangered Species Act of 1973, as amended, 16 U.S.C. ( 1531 et seq.; the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. ( 651 et
seq.; the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. ( 300(f) et
seq.; the Hazardous Materials Transportation Act, 42 U.S.C. (( 1471, 1472,
1655, 1801 et seq.; the Federal Insecticide, Fungicide & Rodenticide Act, 7
U.S.C. ( 136 et seq.; and the Atomic Energy Act, 42 U.S.C. ( 3011 et seq.
"Event of Default" means, when used with reference to any agreement
without other reference, an event of default or other similar event as
defined, or pursuant to, the terms of such agreement.
"Existing Members" has the meaning set forth in the Recitals.
"Existing Members' Consent and Guaranty" means the consent and guaranty
agreement executed by each of the Existing Members, in the form attached
hereto as Exhibit A.
"Facilities" means collectively the Jonesboro Facility and the West
Enfield Facility.
"FERC" means the Federal Energy Regulatory Commission and its successors.
"FPA" means the Federal Power Act, as amended, and all rules and
regulations adopted thereunder.
"GAAP" means generally accepted accounting principles in effect in the
United States from time to time.
"Governmental Approval" means any applicable authorization, approval,
consent, license, lease, ruling, permit, tariff, certification, exemption,
filing or registration by or with any Governmental Person.
"Governmental Person" means any federal, state, local or other
government, any political subdivision or any governmental, judicial, public or
statutory instrumentality, tribunal, agency (including those pertaining to
health, safety or the environment), authority, body or entity, or other
regulatory bureau, authority, body or entity having legal jurisdiction over
the matter or Person in question.
"Governmental Rule" means any applicable federal, state, local or other
law, statute, treaty, rule, regulation, ordinance, order, code, judgment,
decree, directive, injunction, writ or similar action or decision duly
implementing any of the foregoing by any Governmental Person, but does not
include Governmental Approvals.
"Governmental Consents and Notices" has the meaning set forth in Section
4.5.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended, and all of the rules and regulations thereunder.
"Jonesboro Facility" means the approximately 24.5 megawatt biomass fired
electrical generating facility which is located in Jonesboro, Maine, and which
is owned by Seller.
"Knowledge," "known" and "knows," whether or not capitalized herein and
when used with respect to matters covered by representation, warranty,
covenant or other provision of this Agreement applicable to Seller, means the
knowledge and beliefs of each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, but without any
independent investigation.
"Lien" means any lien, mortgage, encumbrance, charge, pledge, lease,
security interest, claim, option or right of any kind (including any
conditional sale or other title retention agreement).
"MPUC" means the Maine Public Utilities Commission and its successors.
"NEPOOL" means the New England Power Pool.
"Operating Agreement" means the Amended and Restated Operating Agreement
of Seller by and among each of the Existing Members and Buyer (in the form
attached to this Agreement as Exhibit B), which amends and restates the
Operating Agreement dated as of April 1, 1997 among the Existing Members.
"Permits" has the meaning set forth in Section 5.6.
"Person" means any individual, corporation, partnership, trust, joint
venture, unincorporated association, limited liability company, Governmental
Person or other entity.
"Power Purchase Agreement" means that certain Agreement dated May __,
1997 between Seller and the NEPOOL Participants referred to therein pursuant
to which Seller agrees to provide electrical energy and capacity.
"Project Documents" has the meaning set forth in Section 5.4.
"PUHCA" means the Public Utility Holding Company Act of 1935, as amended,
and all rules and regulations adopted thereunder.
"PURPA" means the Public Utility Regulatory Policies Act of 1978, as
amended, and all rules and regulations adopted thereunder.
"Qualifying Facility" means a "qualifying facility" within the meaning of
PURPA.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations adopted thereunder.
"Seller" has the meaning set forth in the Preamble.
"Seller Assets" means all of the assets and rights of any kind or
character owned or leased or otherwise benefiting Seller including (i) the
Sites, and all easements, rights of way and other similar rights in which
Seller has any interest, (ii) the Facilities and related fixtures,
improvements, equipment and other assets located on the Sites, (iii) the Power
Purchase Agreement and all of the other Project Documents, (iv) the Permits,
and (v) all of the tangible and intangible personal, real, mixed and other
property and assets of any kind owned or leased by Seller or in which Seller
has any right or interest.
"Site" means with respect to the Jonesboro Facility, the land described
on Schedule 1.1(a), and with respect to the West Enfield Facility, the land
described on Schedule 1.1(b).
"Tax Liabilities" means all income, excise, sales, unemployment, employer
and employee withholding, social security, occupation, franchise, customs and
other taxes, duties or charges levied, assessed or imposed upon Seller, during
any portion of the taxable year of Seller ending on the Closing Date or that
accrued or are attributable to any portion of the taxable year of Seller
ending on the Closing Date.
"Tax Returns" has the meaning set forth in Section 5.14.
"West Enfield Facility" means the approximately 24.5 megawatt biomass
fired electrical generating facility which is located in West Enfield, Maine,
and which is owned by Seller.
1.2 Interpretations. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise necessarily
requires:
1.2.1 the terms "herein," "herewith" and "hereof" are references to
this Agreement, taken as a whole;
1.2.2 the terms "include," "includes" and "including" shall mean
"including, without limitation";
1.2.3 references to a "Section," "Article," "Exhibit" or "Schedule"
shall mean a Section, Article, Exhibit or Schedule of this Agreement, as the
case may be;
1.2.4 references to a given agreement, instrument or other document
shall be a reference to that agreement, instrument or other document as
modified, amended, supplemented and restated through the date as of which such
reference is made;
1.2.5 references to a Person includes its permitted successors and
permitted assigns;
1.2.6 the singular shall include the plural and the masculine shall
include the feminine and neuter, and vice versa;
1.2.7 reference to a given Governmental Rule is a reference to that
Governmental Rule as amended, modified, supplemented or restated as of the
date on which the reference is made; and
1.2.8 accounting terms have the meaning given to them by GAAP
applied on a consistent basis by the Person to which they relate.
ARTICLE 2
SALE AND PURCHASE OF BUYER'S MEMBERSHIP INTEREST;
PURCHASE PRICE
2.1 Sale of Buyer's Membership Interest. Upon the terms and subject to
the conditions of this Agreement, at the Closing Seller shall sell and Buyer
shall purchase Buyer's Membership Interest.
2.2 Manner of Payment. At the Closing, Buyer shall pay Buyer's
Membership Interest Purchase Price in the manner specified in Article 3.
ARTICLE 3
CLOSING DATE AND ACTIONS AT CLOSING
3.1 Closing Date. Subject to the other provisions of this Agreement,
the closing of the transactions contemplated by this Agreement (the "Closing")
shall be held at the offices of the Seller, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, on July 1, 1997, or
on such other date and at such other place as may be mutually agreed upon by
the parties. The date of the Closing is sometimes referred to herein as the
"Closing Date."
3.2 Actions at Closing. In addition to, and without limiting any other
provisions of this Agreement, Seller and Buyer shall take the following
actions or cause the following actions to be taken at the Closing:
3.2.1 Delivery of Closing Documents. Seller, Buyer, and, to the
extent required, the Existing Members shall execute and deliver the Closing
Documents and any other certificates, instruments, or agreements necessary to
effect the transactions contemplated in this Agreement.
3.2.2 Payment of Buyer's Membership Interest Purchase Price. Buyer
shall pay, or cause to be paid to Seller, Buyer's Membership Interest Purchase
Price by wire transfer or other credit of immediately available funds to an
account designated by Seller.
3.3 Additional Actions. Seller and Buyer shall, on request, on and
after the Closing Date, take such further actions as may be requested pursuant
to Section 10.4.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
RELATING TO SELLER, ITS MEMBERS AND AFFILIATES
Seller hereby represents and warrants to Buyer (regardless of any
examinations, inspections, audits or other investigations Buyer has heretofore
made or may hereafter make with respect to such representations and
warranties) as of the Closing Date as follows:
4.1 Due Organization. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Illinois and is qualified to transact business in the State of Maine and
all other jurisdictions where the activities of Seller require Seller to be so
qualified. There are no dissolution, winding-up or similar proceedings
pending, or, to the knowledge of Seller, threatened against Seller or any of
its members or affiliates. Schedule 4.1 attached sets forth the name and
address of each member of Seller and a brief description of the membership
interest held by such Person.
4.2 Power and Authority. Seller has full power and authority to enter
into and perform its obligations hereunder and under the Closing Documents to
which it is or will be a party and to consummate the transactions herein and
therein contemplated in accordance with the terms, provisions and conditions
hereof and thereof. All proceedings required to be taken by Seller to
authorize it to execute, deliver and perform the terms of this Agreement and
the other Closing Documents to which it is or will be a party have been duly
and validly taken.
4.3 Valid, Binding and Enforceable Obligations. Each of this Agreement
and the other Closing Documents to which Seller is or will be a party has
been, or will be on the Closing Date, as the case may be, duly and validly
executed by Seller and constitutes, or will constitute when executed, a valid,
binding, and enforceable obligation, enforceable against Seller in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights and the enforcement of debtors' obligations generally and by
general principles of equity, regardless of whether enforcement is pursuant to
a proceeding in equity or at law.
4.4 No Violations. The execution and delivery by Seller of this
Agreement and the other Closing Documents to which it is or will be a party,
and Seller's consummation of the transactions contemplated hereby and thereby
will not (a) violate the organizational documents of Seller, (b) violate or
constitute a Default or Event of Default under, or cause or permit the
acceleration of the maturity of, or give rise to any right of termination,
cancellation, imposition of fees or penalties under, any debt, obligation,
contract, commitment of fees or other agreement to which Seller is a party or
by which any of the properties or assets of Seller is or may be bound, (c)
result in the creation or imposition of any Lien upon any of the property or
assets of Seller, or under any debt, obligation, contract, commitment or other
agreement to which Seller is a party or by which any of its properties or
assets is or may be bound, or (d) violate any Governmental Rule.
4.5 Governmental Consents and Notices. Except for the Governmental
Approvals set forth on Schedule 4.5 (collectively, the "Governmental Consents
and Notices"), no Governmental Approval is necessary or appropriate in
connection with the execution and delivery by Seller of this Agreement and the
other Closing Documents, or the consummation by Seller of the transactions
contemplated hereby and thereby, including the issuance of Buyer's Membership
Interest to Buyer. Except as expressly described on Schedule 4.5, all of the
Governmental Consents and Notices have been duly obtained or made and none has
been revoked or rescinded or has expired. Without limiting the generality of
the preceding
provisions of this Section 4.5, no consent, approval or filing is required
under or in connection with the HSR Act in connection with the transactions
contemplated by this Agreement.
4.6 Additional Consents and Notices. Except for the consents, notices
and other items set forth on Schedule 4.6 (collectively, the "Additional
Consents and Notices"), no filing, registration, qualification, notice,
consent, approval or authorization to, with or from any Person (excluding
Governmental Persons) is necessary or appropriate in connection with the
execution and delivery by Seller of this Agreement and the other Closing
Documents, or the consummation by Seller of the transactions contemplated
hereby and thereby, including the issuance of Buyer's Membership Interest to
Buyer. Except as expressly described on Schedule 4.6, all of the Additional
Consents and Notices have been duly obtained or made and none has been revoked
or rescinded or has expired.
4.7 Membership Interests. Schedule 4.1 sets forth the name, address and
membership interest of each of the Existing Members. No other party has any
rights to acquire or otherwise holds any interest in or has any rights with
respect to any ownership, membership or participating interest in Seller.
Buyer's Membership Interest to be issued to Buyer on the Closing Date shall be
free and clear of all Liens (except to the extent created by or through
Buyer).
4.8 Bankruptcy. Neither Seller nor any of its Affiliates or members has
filed any voluntary petition in bankruptcy or been adjudicated a bankrupt or
insolvent, filed any petition or answer seeking any reorganization,
liquidation, dissolution or similar relief under any federal bankruptcy,
insolvency, or other debtor relief law, or sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator of all or any part of its properties. No court of competent
jurisdiction has entered an order, judgment or decree approving a petition
filed against Seller or any of its Affiliates or members seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any federal bankruptcy act, or other
debtor relief law, and no other liquidator has been appointed of Seller nor
any of its Affiliates or members or of all or any part of their respective
properties.
4.9 Business of Seller. Seller is not engaged in any business or
activities other than the development, ownership, operation and maintenance of
the Facilities and matters incidental thereto. Without limiting the
generality of the foregoing, Seller (a) does not own any capital stock,
partnership interest or other interest of any type, directly or indirectly, in
any other corporation, partnership or other Person, (b) does not conduct any
business other than the business contemplated by the Project Documents to
which it is a party and (c) is not a party to and is not bound by any
contract, agreement, instrument or other document other than the Project
Documents to which it is a party.
4.10 Utility Status. Neither Seller nor any of its members or
Affiliates is
(a) (i) a "public utility company" or a "holding company" or (ii) a
"subsidiary company", "affiliate" or "associate company" of a "public utility
company or "holding company", all within the meaning of PUHCA;
(b) a "public utility" under the FPA; or
(c) a public utility company, public service company or other
similar company under any applicable state law regulating entities engaged in
the business of distributing and/or selling electric energy.
4.11 Adequacy of the Seller Assets. The Seller's Assets constitute all
of the land, buildings, equipment, spare parts, inventories, interconnection
and transmission agreements, permits, franchises and other legal rights which
are required by the Project Documents or which are otherwise necessary or
advisable to enable the Seller to lawfully perform all of its obligations
under the Power Purchase Agreement. in the ordinary course. Each of the
Facilities has successfully completed all start up or testing procedures
required by the Power Purchase Agreement, and each of the Facilities commenced
commercial operation by delivery of capacity and energy under the Power
Purchase Agreement on June 11, 1997, and have remained in commercial operation
through the Closing Date.
4.12 No Undisclosed Liabilities. As of the Closing Date, Seller has no
liabilities or obligations of any nature (whether accrued, absolute, fixed or
unfixed, known or unknown, asserted or unasserted, contingent, by guaranty,
surety or assumption or otherwise) other than:
(a) liabilities or obligations arising under the Project Documents
since June 11, 1997;
(b) liabilities or obligations incurred in the ordinary course of
operations since June 11, 1997 (such as amounts due or accrued for operator
expenses, fuel purchases and other operating expenses);
(c) contingent liabilities or obligations which may arise under
Environmental Laws and other rules, regulations and statutes of general
application, provided, however that to the knowledge of Seller, except to the
extent disclosed in the Phase I Environmental Assessments prepared by GZA
GeoEnvironmental, Inc. for each of the Facilities dated September 1996, there
exists no facts or circumstances which could reasonably be expected to subject
Seller to any material liability with respect thereto.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES RELATING TO
THE FACILITIES
Seller hereby represents and warrants to Buyer (regardless of any
examinations, inspections, audits or other investigations Buyer has heretofore
made or may hereafter make with respect to such representations and
warranties) as of the Closing Date as follows:
5.1 No Litigation. There are no actions, suits or proceedings of any
type relating to Seller or the Facilities pending or, to Seller's knowledge,
threatened, against Seller or any of its Affiliates or members or any of their
respective properties or business, whether at law or in equity, including
actions, suits, or proceedings before or by any federal, state, municipal or
other court or governmental department, commission, board, bureau, agent,
instrumentality or other Governmental Person. Seller has no knowledge of any
state of facts or contemplated event which may reasonably be expected to give
rise to any such action, suit or proceeding. Neither Seller nor any of its
Affiliates or members is operating under, or subject to, or in default with
respect to, any order, writ, injunction or decree of any Governmental Person
with respect to the business of Seller or the Facilities.
5.2 Qualifying Facility Matters. Each of the Facilities is an
electrical generating facility that has been certified by the FERC as a
Qualifying Facility, and is in compliance in all respects with all technical
and ownership requirements contained in all applicable FERC and MPUC rules and
regulations.
5.3 Seller's Assets.
5.3.1 Real Property Rights; Title Insurance. Schedule 5.3.1 is a
complete and accurate list of (i) all real property owned or leased by Seller
and of all easements, rights of way, rights of interconnection and other
similar agreements in which Seller has any rights, and (ii) all title
insurance policies and similar insurance policies issued to Seller relating to
any of the property described in preceding clause (i) or relating to the
fixtures and improvements affixed thereto.
5.3.2 Title to Seller Assets. Except as described on Schedule
5.3.2, Seller has good, valid and marketable title to the Sites, free and
clear of all Liens, and Seller has good and indefeasible title to the
remainder of the Facilities and all of the other Seller Assets, free and clear
of all Liens, in each case subject to customary and routine exceptions
normally found in title insurance policies. All of the Liens disclosed on
Schedule 5.3.2 will be discharged by Seller (or by the Members of Seller other
than the Buyer) on or before the Closing Date.
5.4 Project Documents.
5.4.1 Set forth on Schedule 5.4 is a true, correct and complete
list and brief description of all material agreements, contracts, instruments,
licenses, permits and franchises, including all amendments thereto relating to
Seller or either of the Facilities, or to which Seller or either of the
Facilities are subject (collectively, the "Project Documents"). A true,
correct and complete copy of each of the Project Documents including all
amendments, supplements, exhibits and schedules, if any, thereto has been
delivered to Buyer.
5.4.2 The Power Purchase Agreement has not been modified,
supplemented, amended, waived or terminated in any respect whatsoever, and
none of the other Project Documents has been modified, supplemented, amended,
waived or terminated in any material respect, in any such case whether orally
or in writing, except by means of another Project Document.
5.4.3 Each of the Project Documents constituting an agreement,
contract, instrument or other similar document (including the Power Purchase
Agreement) (a) has been duly authorized, executed and delivered by Seller, and
to Seller's knowledge, by each of the other parties thereto, (b) except to the
extent fully performed in accordance with its terms, is in full force and
effect, and (c) to Seller's knowledge, is a valid obligation of such other
parties enforceable in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application referring to or affecting enforcement of creditor's rights
and general principles of equity.
5.4.4 No Default or Event of Default on the part of Seller has
occurred and is continuing under any Project Document (including the Power
Purchase Agreement), and Seller has not received notice, oral or written, that
a Default or Event of Default on the part of any other Person has occurred
thereunder or that any Person has alleged or asserted any such Default or
Event of Default by an Person.
5.5 No Employees, Etc. Seller has no employees, nor does it have any
obligation to make contributions to any compensation, bonus, health, sick pay,
disability, vacation pay, group-term life insurance, dependant care
assistance, accidental death and dismemberment insurance, severance, employee
welfare, pension, profit sharing, retirement or other employee benefit plans,
funds, programs or arrangements.
5.6 Permits. The Governmental Approvals listed on Schedule 5.6
(collectively, the "Permits") constitute, all of the material Governmental
Approvals which are necessary or appropriate in connection with the ownership,
use, operation and maintenance of the Facilities and the conduct of Seller's
business and activities. Each Permit has been duly and validly issued, or
transferred, to Seller, and is in full force and effect, and all rights and
entitlements thereunder are vested exclusively in Seller. Seller has not
received any notice that Seller has committed any act or failed to act in any
manner or under any circumstances which could result in the revocation or
suspension of any Permit or in any other disciplinary action relating
thereto. The consummation of the transactions provided for in this Agreement
and the other Closing Documents will not violate any of the terms or
provisions of the Permits or impose any material obligation on Seller. Seller
has no reason to believe that any of such Permits will not be renewed upon
their natural expiration in the ordinary course of business upon compliance
with normal and customary renewal procedures applicable to the respective
Permit.
5.7 General Legal Compliance. Except as disclosed on Schedule 5.7 or
5.8, Seller and the Facilities are in compliance in all material respects with
all Governmental Rules applicable to Seller and/or the Facilities, as the case
may be, and with all Permits, including all Governmental Rules applicable to
the conduct of Seller's business and activities and to the construction,
ownership, operation, maintenance and use of the Facilities.
5.8 Environmental Legal Compliance. Without limiting the generality of
Section 5.7, and except as disclosed on Schedule 5.8, (a) Seller and each of
the Facilities and the Sites are in compliance in all material respects with
all Environmental Laws, and (b) there has not been (whether prior to, or in
connection with, the construction, fuel supply, power generation and
transmission, waste disposal, and other operations and processes relating to
the Facilities or otherwise) any release, emission, seepage, disposal, spill
or discharge at or to the Sites or its environments, whether onto or into the
ground, water, air or otherwise, of any petroleum products or of any substance
considered a hazardous or toxic substance that would give rise to liability to
the owner or operator of the Facilities under any Environmental Law, and to
the best of knowledge of Seller, none is reasonably expected to occur
imminently, other than those which (i) are not material, (ii) are permitted
under all applicable Environmental Laws and Permits, (iii) occur in the normal
course of the operation of the Facilities or (iv) have not had and are not
reasonably expected to have any material adverse impact on Seller or the
Facilities.
5.9 Insurance. Schedule 5.9 contains a list and description of all
insurance policies of any type which are held by Seller (or its Affiliates or
members which relate to Seller or the Facilities) specifying the insurer,
amount of coverage, type of insurance, policy number and any pending claims
thereunder. Except as disclosed on Schedule 5.9, no claim of any type has
been made under any of such policies.
5.10 Utilities. All utility services necessary for the operation of the
Facilities are available at the boundaries of their respective Sites,
including water supply, sanitary and storm sewer facilities, and gas, electric
and telephone facilities.
5.11 Facility Construction and Condition. Each of the Facilities is
operating substantially as designed, all of Seller Assets are in good
operating condition, maintenance and repair (subject only to normal wear and
tear) and there are no material design or other material defects in the
Facilities or any other Seller Asset.
5.12 Securities Laws. Based upon and provided that the representations
of Buyer in Sections 6.7 and 6.8 are true and correct, the sale of Buyer's
Membership Interest is not required to be registered pursuant to the
Securities Act, or applicable state securities laws or regulations.
5.13 Brokers. Neither this Agreement nor the consummation of the
transactions contemplated hereby was induced by or procured through any Person
acting on behalf of, or representing, either Seller, its members or any of
their respective Affiliates as a broker, finder, investment banker, financial
advisor or in any similar capacity.
5.14 Tax Returns. Seller has properly, accurately and timely completed
and filed all federal, state and local tax returns and reports, declarations
and information returns ("Tax Returns") required to be filed on or before the
Closing Date by or on behalf of Seller or the Facilities, and has withheld and
paid over all amounts shown as due on such returns, as well as other due and
payable charges, assessments and governmental charges of which Seller has
knowledge. Prior to the Closing Date, Seller is classifiable as a
partnership, and not as an association taxable as a corporation under Section
7701 of the Code and the regulations promulgated thereunder, and has been
taxed as a partnership for federal income tax purposes under subchapter "K" of
the Code. No Tax Returns of Seller have been audited by any federal, state or
local taxing authorities.
ARTICLE 6
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer hereby represents and warrants to Seller (regardless of any
examinations, inspections, audits or other investigations Seller has
heretofore made or may hereafter make with respect to such representations and
warranties) as of the Closing Date as follows:
6.1 Due Organization. Buyer is a Delaware limited liability company,
duly organized, and validly existing under the laws of the State of Delaware,
and is qualified to transact business in all jurisdictions where the ownership
of its properties or its operations require such qualification, except where
the failure to so qualify would not have a material adverse effect on its
financial condition, its ability to own its properties or transact its
business, or to carry out the transactions contemplated hereby.
6.2 Power and Authority. Buyer has full limited liability company power
and authority to enter into and perform its obligations hereunder and under
the other Closing Documents to which it is or will be a party and to
consummate the transactions herein and therein contemplated in accordance with
the terms, provisions and conditions hereof and thereof. All limited
liability company proceedings required to be taken by Buyer to authorize it to
execute, deliver and perform the terms of this Agreement and the other Closing
Documents to which it is or will be a party have been duly and validly taken.
6.3 Valid, Binding and Enforceable Obligations. Each of this Agreement
and the other Closing Documents to which Buyer is or will be a party has been,
or will be on the Closing Date, as the case may be, duly and validly executed
by Buyer and constitutes, or will when executed constitute, a valid, binding,
and enforceable obligation, enforceable against Buyer in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and the enforcement of debtors' obligations generally and by general
principles of equity, regardless of whether enforcement is pursuant to a
proceeding in equity or at law.
6.4 No Violations. The execution and delivery by Buyer of this
Agreement and the other Closing Documents to which it is or will be a party,
and Buyer's consummation of the transactions contemplated hereby and thereby
will not (a) violate or be in conflict with the organizational documents of
Buyer, (b) violate, be in conflict with, or constitute a Default or Event of
Default under, or cause or permit the acceleration of the maturity of, or give
rise to any right of termination, cancellation, imposition of fees or
penalties under, any debt, obligation, contract, commitment of fees or other
agreement to which Buyer is a party or by which any of the properties or
assets of Buyer is or may be bound, (c) result in the creation or imposition
of any Lien upon any of the property or assets of Buyer, or under any debt,
obligation, contract, commitment or other agreement to which Buyer is a party
or by which any of the properties or assets is or may be bound, or (d) violate
any Governmental Rule.
6.5 Bankruptcy. Buyer has not filed any voluntary petition in
bankruptcy or been adjudicated a bankrupt or insolvent, filed any petition or
answer seeking any reorganization, liquidation, dissolution or similar relief
under any federal bankruptcy, insolvency, or other debtor relief law, or
sought or consented to or acquiesced in the appointment of any trustee,
receiver, conservator or liquidator of all or any substantial part of its
properties. No court of competent jurisdiction has entered an order, judgment
or decree approving a petition filed against Buyer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any federal bankruptcy act, or other debtor relief law, and no
other liquidator has been appointed of Buyer or of all or any substantial part
of its properties.
6.6 No Litigation. There are no actions, suits or proceedings of any
type pending or, to Buyer's knowledge, threatened, against Buyer or any of its
properties or business, whether at law or in equity, before or by Governmental
Person. Buyer has no knowledge of any state of facts or contemplated event
which may reasonably be expected to give rise to any such action, suit or
proceeding. Buyer is not operating under, or subject to, or in default with
respect to, any order, writ, injunction or decree of any Governmental Person.
6.7 Investment Intent. Buyer is acquiring Buyer's Membership Interest
solely for the purpose of investment and not with a view to, or for sale in
connection with, any distribution thereof. Buyer acknowledges that Buyer's
Membership Interest is not registered under the Securities Act and that
Buyer's Membership Interest may not be transferred or sold except in
compliance with the registration provisions of the Securities Act or pursuant
to an applicable exemption therefrom and in compliance with applicable state
securities laws and regulations.
6.8 Accredited Investor. Buyer is an "accredited investor" as defined in
Rule 501 of the Securities Act and is a sophisticated investor with the
capability of evaluating the merits and risks of entering into this Agreement
and the consummation of the transactions contemplated hereby. Further, Buyer
confirms that: (a) Seller has provided to Buyer full access to Seller's books
and records and to Seller's personnel which are familiar with the operations
of the Facilities, (b) Buyer has had the opportunity to question Seller's
personnel and that all such inquiries have been answered to Buyer's
satisfaction, and (c) no representations have been made by Seller or its
Affiliates except as set forth herein or in the documents being delivered in
connection with the consummation of the transactions contemplated hereby.
6.9 Brokers' Fees. Neither this Agreement nor the consummation of the
transactions contemplated hereby was induced by or procured through any Person
acting on behalf of, or representing, Buyer or any of its Affiliates as a
broker, finder, investment banker, financial advisor or in any similar
capacity, except Monhegan Partners, pursuant to a separate agreement for which
Buyer is solely responsible.
6.10 HSR Act. No consent, approval or filing is required under or in
connection with the HSR Act in connection with the transactions contemplated
by this Agreement.
6.11 Utility Status. Neither Buyer nor any of its members or Affiliates
is
(a) (i) a "public utility company" or a "holding company" or (ii) a
"subsidiary company", "affiliate" or "associate company" of a "public utility
company or "holding company", all within the meaning of PUHCA;
(b) a "public utility" under the FPA; or
(c) a public utility company, public service company or other
similar company under any applicable state law regulating entities engaged in
the business of distributing and/or selling electric energy.
ARTICLE 7
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligation of Buyer to consummate the transactions contemplated
hereby shall be subject to the fulfillment to the satisfaction of, or waiver
by, Buyer, in its sole discretion, of each of the following conditions on or
prior to the Closing:
7.1 No Termination. This Agreement shall not have been terminated
pursuant to Section 10.5 hereof.
7.2 Representations True and Correct; Certificate. The representations
and warranties of Seller contained in this Agreement shall be true and correct
in all material respects on and as of the Closing Date with the same force and
effect as if made on and as of the Closing Date, and Seller shall have
executed and delivered to Buyer an officer's certificate confirming the same.
7.3 Compliance with Covenants; Certificate. Seller shall have performed
and complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date, and Seller shall have executed and delivered to Buyer an officer's
certificate confirming the same.
7.4 No Adverse Proceedings. On the Closing Date, no action or
proceeding shall be pending by any public authority or private individual or
entity before any court or administrative body to restrain, enjoin or
otherwise prevent the consummation of this Agreement or the transactions
contemplated hereby or to recover any damages or obtain other relief as a
result of the transactions proposed hereby.
7.5 Proceedings Satisfactory. All proceedings to be taken in connection
with the consummation of the transactions contemplated by this Agreement and
all documents incident thereto, shall be reasonably satisfactory in form and
substance to Buyer and its counsel, and Buyer and its counsel shall have
received copies of such documents and customary certificates as Buyer and its
counsel may reasonably request in connection therewith.
7.6 No Adverse Changes. There shall have been no material adverse
change in the position, financial or otherwise, or the assets, liabilities or
results of operations of Seller or the Facilities other than in the ordinary
course of business or as permitted or contemplated by this Agreement, nor
shall the business, assets and properties of Seller or the Facilities have
been materially and adversely affected in any way as a result of fire,
explosion, earthquake, disaster, accident, flood, riot, civil disturbance,
uprising, activity of armed forces, or act of God or public enemy, whether or
not covered by applicable insurance.
7.7 Consents and Notices. All Governmental Consents and Notices,
Additional Consents and Notices and other consents or notices required to be
obtained from or made to any Person shall have been duly obtained, made or
provided, as the case may be, and shall be in full force and effect.
7.8 Legal Opinion. Buyer shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇, legal
counsel to Seller, opinions as to the authorization, delivery and performance
of the Closing Documents and the other acts to be performed by Seller at the
Closing in form reasonably acceptable to Buyer and its counsel.
7.9 Execution and Delivery of Closing Documents. This Agreement and
each of the other Closing Documents shall have been duly authorized, executed
and delivered by the parties thereto and shall be in full force and effect on
the Closing Date without any material
Default or Event of Default having occurred or existing thereunder or material
breach thereof or circumstance which would give any party thereto the right to
terminate any such Closing Document.
7.10 No Violations. The consummation of the transactions contemplated
hereby and by the other Closing Documents shall not violate any Governmental
Rule.
7.11 Closing Actions. Each of the actions required to be taken pursuant
to Section 3.2 or otherwise to effect the transactions contemplated hereby
shall have been duly performed and complied with, and Buyer shall have
received satisfactory evidence of any and all such actions.
7.12 Seller Documents. Buyer shall have received (i) a copy of the
fully executed Operating Agreement (in the form in effect prior to the Closing
Date), (ii) a certified copy of the Certificate of Organization issued by the
Illinois Secretary of State, and (iii) evidence as to the good standing of
Seller in the States of Illinois and Maine.
ARTICLE 8
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligation of Seller to consummate the transactions contemplated
hereby shall be subject to the fulfillment to the satisfaction of, or waiver
by, Seller, in its sole discretion, of each of the following conditions on or
prior to the Closing:
8.1 No Termination. This Agreement shall not have been terminated
pursuant to Section 10.5 hereof.
8.2 Representations True and Correct; Certificate. The representations
and warranties of Buyer contained in this Agreement shall be true and correct
in all material respects on and as of the Closing Date with the same force and
effect as if made on and as of the Closing Date, and Buyer shall have executed
and delivered to Seller an officer's certificate confirming the same.
8.3 Compliance with Covenants; Certificate. Buyer shall have performed
and complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date, and Buyer shall have executed and delivered to Seller an officers'
certificate confirming the same.
8.4 No Adverse Proceedings. On the Closing Date, no action or
proceeding shall be pending by any public authority or private individual or
entity before any court or administrative body to restrain, enjoin or
otherwise prevent the consummation of this Agreement or the transactions
contemplated hereby or to recover any damages or obtain other relief as a
result of the transactions proposed hereby.
8.5 Proceedings Satisfactory. All proceedings to be taken in connection
with the consummation of the transactions contemplated by this Agreement and
all documents incident thereto, shall be reasonably satisfactory in form and
substance to Seller and its counsel, and Seller and its counsel shall have
received copies of such documents and customary certificates as Seller and its
counsel may reasonably request in connection therewith.
8.6 Consents and Notices. All Governmental Consents and Notices,
Additional Consents and Notices and other consents or notices required to be
obtained from or made to any Person shall have been duly obtained, made or
provided, as the case may be, and shall be in full force and effect.
8.7 Legal Opinion. Seller shall have received from Downs ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, PC, opinions as to the authorization, delivery and performance of the
Closing Documents and the other acts to be performed by Buyer at Closing in
form reasonably acceptable to Seller and its counsel.
8.8 Execution and Delivery of Closing Documents. This Agreement and
each of the other Closing Documents shall have been duly authorized, executed
and delivered by the parties thereto and shall be in full force and effect on
the Closing Date without any material Default or Event of Default having
occurred or existing thereunder or material breach thereof or circumstance
which would give any party thereto the right to terminate any such Closing
Document.
8.9 No Violations. The consummation of the transactions contemplated
hereby and by the other Closing Documents shall not violate any Governmental
Rule.
8.10 Closing Actions. Each of the actions required to be taken pursuant
to Section 3.2 or otherwise to effect the transactions contemplated hereby,
including the payment of the Buyer's Membership Interest Purchase Price, shall
have been duly performed and complied with, and Seller shall have received
satisfactory evidence of any and all such actions.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification by Seller. As Buyer's sole monetary remedy for any
breach of this Agreement by Seller, Seller shall to the maximum extent not
prohibited by law, indemnify, defend and hold harmless Buyer and all of its
Affiliates, shareholders, partners, members, investors, directors, officers,
employees, agents and assignees, from and against any and all losses,
liabilities, damages, claims or expenses (including reasonable attorneys' fees
and expenses) suffered or incurred to third parties by any such party by
reason of or resulting from the inaccuracy of any representation or warranty
or the breach, nonfulfillment or nonperformance of any covenant or agreement
of Seller under this Agreement or any other Closing Document. Notwithstanding
the foregoing, Seller shall not be obligated to indemnify with respect to any
claim unless and until the aggregate amount claimed equals or exceeds
$250,000, in which case Seller's indemnity obligation shall include such
$250,000 amount. In no event shall Seller's liability hereunder exceed
Buyer's Membership Interest Purchase Price.
9.2 Indemnification by Buyer. As Seller's sole monetary remedy for any
breach of this Agreement by Buyer, Buyer shall to the maximum extent not
prohibited by law, indemnify, defend and hold harmless Seller and all of its
Affiliates, shareholders, partners, members, investors, directors, officers,
employees, agents and assignees, from and against any and all losses,
liabilities, damages, claims or expenses (including reasonable attorneys' fees
and expenses) suffered or incurred to third parties by any such party by
reason of or resulting from the inaccuracy of any representation or warranty
or the breach, nonfulfillment or nonperformance of any covenant or agreement
of Buyer under this Agreement or any other Closing Document.
ARTICLE 10
ADDITIONAL COVENANTS AND TERMINATION
10.1 Seller's General Pre-Closing Covenants. Until the Closing Date,
Seller shall, unless Buyer shall otherwise agree in writing, do the following:
10.1.1 Full Access. Permit Buyer and its representatives, agents,
counsel and accountants to have full access to all properties, books,
accounts, records, contracts, files, correspondence, tax records and documents
of or relating to Seller, the Facilities and Seller Assets, and permit Buyer
to cause its agents to conduct such reviews, inspections, surveys, tests and
investigations of Seller, the Facilities and Seller Assets as Buyer deems
necessary or advisable, provided that Buyer shall take all reasonable steps to
minimize the disturbance to the operations of Seller.
10.1.2 Furnishing Information. Promptly furnish to cause to be
furnished, at its sole cost and expense, to Buyer and its representatives,
originals or copies of all Project Documents and other documents, records,
data and information concerning such businesses, assets, finances and
properties of or relating to Seller, the Facilities and Seller Assets that may
be requested, including copies of all environmental reports, and plans and
specifications pertaining to all or any portion of the Facilities or the
Sites.
10.1.3 Consultation with Accountants. Permit Buyer to consult with
the accountants for Seller, and said accountants are hereby authorized to
disclose all information in their possession to Buyer with respect to Seller,
the Facilities and Seller Assets.
10.1.4 Discussions with Facility Participants. Permit Buyer and
its representatives and agents to discuss the proposed sale of Buyer's
Membership Interest with any of the parties to the Project Documents or any
other Person who has any relationship to Seller, the Facilities or Seller
Assets.
10.1.5 Representations and Warranties. Refrain from doing, or
causing to be done, anything which would cause the representations and
warranties set forth in Articles 4 or 5 hereof from being true, complete and
accurate on the Closing Date as if made on such date.
10.1.6 Conduct of Business. Except as expressly contemplated
hereby, carry on the business of Seller, the Facilities and Seller Assets in
the ordinary course, and not sell, transfer or otherwise dispose of any Seller
Asset except in the ordinary course of business, and continue to use, operate,
maintain and repair the Facilities and all Seller Assets in accordance with
all Permits, all Project Documents and all applicable Governmental Rules and
otherwise in accordance with Seller's prior practice.
10.1.7 Preservation of Assets, Relationships, Etc. Preserve the
business organization of Seller and the Facilities and Seller Assets intact,
and preserve Seller's present relationships with all other parties to the
Project Documents and others involved with or having any material relationship
to the Facilities.
10.1.8 New Obligations. Not enter into any material contract,
agreement or instrument of any type, whether written or oral, or otherwise
incur any new liabilities, whether contingent or otherwise, except in the
ordinary course of business.
10.1.9 No Defaults or Events of Default. Refrain from doing any
act or omitting to do any act, or permitting any act or omission to act, which
will cause a Default or Event of Default under any Project Document.
10.1.10 No Solicitations, Etc. Refrain from soliciting or
encouraging (by way of furnishing information, or otherwise) any inquiries or
proposals for the acquisition of any interest in Seller, either of the
Facilities, or the Seller Assets.
10.1.11 Notification. Promptly notify Buyer in writing of any
event, circumstance or condition that results or, with the passage of time or
notice, or both, would reasonably be likely to result, in (a) any
representation or warranty of Seller under this Agreement being false in any
material respect at any time, (b) any condition to Closing for the benefit of
Buyer being unable to be satisfied, or (c) the inability of Seller to perform
any of its obligations hereunder.
10.1.12 Spare Parts. Contribute or cause to be contributed to
Seller, free and clear of any Liens and at no obligation to Seller, all spare
parts and other assets relating to or used in the operation of the Facilities
which are owned or controlled by Affiliates of Seller.
10.2 Filings and Consents. Seller and Buyer, as promptly as
practicable, shall each use their reasonable, good faith and diligent efforts
to make, or cause to be made, all such filings and submissions and obtain or
cause to be obtained all such consents and approvals applicable to it, in
order to consummate the transactions
contemplated by this Agreement in accordance with the terms hereof.
10.3 Provision of Information. Seller shall cause all the originals of
all books and records, accounts, contracts, and other documents held by
Affiliates of Seller which relate to the Facilities or Seller Assets (other
than documents wholly internal to Seller's Affiliates and not reasonably
necessary to the proper operation and management of the Facilities) to be
delivered by such parties to Seller at the Closing or promptly after the
Closing Date, but in no event later than fifteen days after the Closing Date.
10.4 Further Assurances. Seller and Buyer shall, on request, on and
after the Closing Date, cooperate with each other by furnishing any additional
information, executing and delivering any additional documents and/or
instruments and doing any and all such other things as may be reasonably
requested by any of the parties or its counsel to consummate or otherwise
further implement or effectuate the transactions contemplated by this
Agreement and the other Closing Documents.
10.5 Termination. This Agreement may be terminated at any time prior to
the Closing as follows, and in no other manner:
10.5.1 By Mutual Agreement. By the mutual agreement of Buyer and
Seller in writing.
10.5.2 By Buyer. By written notice from Buyer to Seller if (a) any
condition set forth herein for the benefit of Buyer shall not have been timely
satisfied, (b) Seller fails to perform any obligation hereunder in a timely
manner and fails to cure the same promptly after written notice thereof from
Buyer to Seller or (c) any representation or warranty of Seller hereunder
proves to be false in any material respect and is not promptly cured after
written notice thereof from Buyer to Seller.
10.5.3 By Seller. By written notice from Seller to Buyer if (a)
any condition set forth herein for the benefit of Seller shall not have been
timely satisfied, (b) Buyer fails to perform any obligation hereunder in a
timely manner and fails to cure the same promptly after written notice thereof
from Seller to Buyer, or (c) any representation or warranty of Buyer hereunder
proves to be false in any material respect and is not promptly cured after
written notice thereof from Seller to Buyer.
10.5.4 By Any Party. By written notice from any party to the other
parties if the Closing contemplated hereunder has not taken place on or before
August 1, 1997.
ARTICLE 11
TAX MATTERS
11.1 Sales and Transfer Taxes. All transfer, sales, use, documentary
transfer, stamp or excise taxes, or other similar taxes of any type payable in
connection with the sale and transfer of Buyer's Membership Interest or in
connection with the indirect transfer of Seller Assets effected thereby or
otherwise in connection with the consummation of the transactions
contemplated by this Agreement and the other Closing Documents shall be the
exclusive responsibility of and shall be paid by Seller.
11.2 Income Tax Matters.
11.2.1 Certain Income Tax Effects of the Transactions. For federal
and state income tax purposes, the Members intend that the transactions
effected by this Agreement, together with the payment of the Closing
Distribution under Section 8.1(a) of the Operating Agreement, shall be treated
as (i) a sale by the Indeck Members (as defined in the Operating Agreement) of
a portion of their membership interest in the Seller representing
substantially all of the present value of their membership interests in the
Seller for a sale price equal to the amount of the Closing Distribution, and
(ii) a capital contribution to the Seller of the remainder of the Membership
Interest Purchase Price.
ARTICLE 12
MISCELLANEOUS
12.1 Transaction Costs. Except as otherwise expressly provided herein,
Buyer, on the one hand, and Seller, on the other, shall pay all of their own
costs and expenses (including attorneys' fees and other legal costs and
expenses and accountants' fees and other accounting costs and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby.
12.2 Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and among such parties.
12.3 Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by each
of the parties hereto.
12.4 Assignments. No party shall assign its rights and/or obligations
hereunder without the prior written consent of each other party to this
Agreement.
12.5 Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of,
and be enforceable by the parties and their respective administrators,
executors, legal representatives, heirs, successors and permitted assigns.
12.6 Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part hereof and
shall not limit or otherwise affect in any way the meaning or interpretation
of this Agreement.
12.7 Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be
(as elected by the person giving such notice) hand delivered by messenger or
courier service, telefaxed, or mailed by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
To Buyer: With a copy to:
Ridgewood Maine, L.L.C.
c/o Ridgewood Power Corporation Downs ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: President Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To Seller: With a copy to:
Indeck Maine Energy, L.L.C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
1130 Lake ▇▇▇▇ Road, Suite ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ One Monument Square
Attn: President ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a separate copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such other address as any party may designate by notice complying with
the terms of this Section 12.7. Each such notice shall be deemed delivered
(a) on the date actually delivered if by messenger or courier service; (b) on
the date of confirmed answer-back if by telefax; and (c) on the date upon with
the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be,
if mailed.
12.8 Severability. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder hereof shall not be invalidated thereby and shall
be given full force and effect so far as possible. If any provision of this
Agreement may be construed in two or more ways, one of which would render the
provision invalid or otherwise voidable or unenforceable and another of which
would render the provision valid and enforceable, such provision shall have
the meaning which renders it valid and enforceable.
12.9 Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if
known, shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder. Any waiver by
any party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power
or remedy
under this Agreement. No notice to or demand on any party in any case shall,
of itself, entitle such party to any other or further notice or demand in
similar or other circumstances.
12.10 Enforcement Costs. If any legal action or other proceeding is
brought for the enforcement of this Agreement or any other Closing Document,
or because of an alleged dispute, breach, default or misrepresentation in
connection with any provision of this Agreement or any other Closing Document,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all out-of-
pocket expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy and post-judgment proceedings), incurred in that action
or proceeding, in addition to any other relief to which such party or parties
may be entitled. Attorneys' fees shall include, without limitation, paralegal
fees, investigative fees, administrative costs, sales and use taxes and all
other reasonable and customary charges billed by the attorney to the
prevailing party.
12.11 Remedies Cumulative. Except as otherwise expressly provided
herein, no remedy herein conferred upon any party is intended to be exclusive
of any other remedy, and each and every such remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or inequity or by statute or otherwise. No single or partial
exercise by any party of any right, power or remedy hereunder shall preclude
any other or further exercise thereof.
12.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Confirmation of
execution by telefax of a signature page shall be binding upon any party so
confirming.
12.13 Governing Law. This Agreement and all transactions contemplated
by this Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Illinois, without regard to
principles of conflicts of laws.
12.14 Preparation of Agreement. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation. The parties acknowledge each contributed and is equally
responsible for its preparation.
12.15 Survival. All representations, warranties, covenants and
agreements made herein or otherwise referenced herein shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby for the time periods herein provided.
12.16 Inducement to Transaction. All representations and warranties
made by any party of this Agreement shall be deemed made for the purpose of
inducing the other party to enter into this Agreement.
ARTICLE 13
EXECUTION CLAUSE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date above first written.
SELLER:
INDECK MAINE ENERGY, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
BUYER:
RIDGEWOOD MAINE, L.L.C.
By: RIDGEWOOD PENOBSCOT MANAGEMENT CORPORATION,
Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President, Secretary