Exhibit 2
Execution Version
PURCHASE AND SALE AGREEMENT
Among
Arcadia Energy II, LLC
And
Arcadia Energy III, LLC
("Sellers")
And
Great Bay Hydro Maine, LLC
And
Great Bay Hydro ▇▇▇▇▇▇, LLC
("Buyers")
relating to the acquisition of
all of the Partnership Interests
of
▇▇▇▇▇▇ Falls Associates, L.P.
Dated as of March 16, 2005
TABLE OF CONTENTS
ARTICLE 1 SALE AND PURCHASE OF PARTNERSHIP INTERESTS . . . . . 1
1.1 Sale and Purchase. . . . . . . . . . . . . . . . . . . . 2
1.2 Purchase Price and Payment . . . . . . . . . . . . . . . 2
1.3 ▇▇▇▇ Energy, Inc. ▇. ▇▇▇▇▇▇ Falls Associates . . . . . . 2
1.4 Closing Date . . . . . . . . . . . . . . . . . . . . . . 3
1.5 Closing Adjustments. . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLERS . . . . . . 3
2.1 Arcadia II . . . . . . . . . . . . . . . . . . . . . . . 3
2.1.1 Organization; Authority; Enforceability. . . . . . . . . 3
2.1.2 Ability to Carry Out Agreement . . . . . . . . . . . . . 4
2.1.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . 4
2.1.4 Brokers and Intermediaries . . . . . . . . . . . . . . . 4
2.1.5 Ownership of the General Partnership Interest. . . . . . 4
2.1.6 Organization of Partnership; Authority:
Enforceability . . . . . . . . . . . . . . . . . . . . 5
2.1.7 Due Diligence Materials . . . . . . . . . . . . . . . . 5
2.1.8 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1.9 Disclaimer of Other Representations and Warranties:
Disclosure . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Arcadia III. . . . . . . . . . . . . . . . . . . . . . . 6
2.2.1 Organization; Authority; Enforceability. . . . . . . . . 6
2.2.2 Ability to Carry Out Agreement . . . . . . . . . . . . . 6
2.2.3 Litigation . . . . . . . . . . . . . . . . . . . . . . . 7
2.2.4 Brokers and Intermediaries . . . . . . . . . . . . . . . 7
2.2.5 Ownership of the Limited Partner Interest . . . . . . . 7
2.2.6 Disclaimer of Other Representations and Warranties:
Disclosure . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYERS . . . . . . .
8
3.1 Organization; Authority; Enforceability . . . . . . . . 8
3.2 Ability to Carry Out the Agreement . . . . . . . . . . .8
3.3 Litigation . . . . . . . . . . . . . . . . . . . . . . .9
3.4 Brokers and Intermediaries . . . . . . . . . . . . . . . 9
3.5 Investment Intent . . . . . . . . . . . . . . . . . . . 9
3.6 Financial Capability . . . . . . . . . . . . . . . . . 10
ARTICLE 4 CERTAIN COVENANTS AND AGREEMENTS OF SELLERS
AND BUYERS . . . . . . . . . . . . . . . . . . . . . 10
4.1 Tax Matters . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Books and Records . . . . . . . . . . . . . . . . . . . 11
4.3 Confidential Information . . . . . . . . . . . . . . . 11
ARTICLE 5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . 12
ARTICLE 6 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 13
6.1.1 Arcadia II Indemnification of Buyers . . . . . . . . . 13
6.1.2 Arcadia III Indemnification of Buyers . . . . . . . . . 14
6.2 Indemnification of Sellers . . . . . . . . . . . . . . 15
6.3 Undertakings . . . . . . . . . . . . . . . . . . . . . 16
6.4 Certain Limitations . . . . . . . . . . . . . . . . . . 16
6.5 Survival . . . . . . . . . . . . . . . . . . . . . . . 17
6.6 Exclusive Remedy . . . . . . . . . . . . . . . . . . . 17
i
ARTICLE 7 CONDITIONS PRECEDENT OF SELLERS . . . . . . . . . . 17
7.1 Representations and Warranties . . . . . . . . . . . . 17
7.2 Agreements . . . . . . . . . . . . . . . . . . . . . . 17
7.3 No Injunction . . . . . . . . . . . . . . . . . . . . . 18
7.4 Partnership LC . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 8 CONDITIONS PRECEDENT OF BUYERS . . . . . . . . . . . 18
8.1 Representations and Warranties . . . . . . . . . . . . 18
8.2 Agreements . . . . . . . . . . . . . . . . . . . . . . 18
8.3 No Injunction . . . . . . . . . . . . . . . . . . . . . 18
8.4 Miscellaneous Closing Deliveries . . . . . . . . . . . 18
ARTICLE 9 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . .
19
9.1 Further Assurances . . . . . . . . . . . . . . . . . . 19
9.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . 19
9.3 Applicable Law . . . . . . . . . . . . . . . . . . . . 20
9.4 Judicial Proceedings: Waiver of Jury Trial . . . . . . 20
9.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . 20
9.6 Entire Agreement . . . . . . . . . . . . . . . . . . . 21
9.7 Amendment . . . . . . . . . . . . . . . . . . . . . . . 21
9.8 Headings: References . . . . . . . . . . . . . . . . . 22
9.9 Counterparts . . . . . . . . . . . . . . . . . . . . . 22
9.10 Parties in Interest: Assignment . . . . . . . . . . . . 22
9.11 Severability: Enforcement . . . . . . . . . . . . . . . 22
9.12 Waiver . . . . . . . . . . . . . . . . . . . . . . . . 22
9.13 Survival . . . . . . . . . . . . . . . . . . . . . . . 23
EXHIBIT A - DEFINITIONS . . .. . . . . . . . . . . . . . . . A-1
EXHIBIT B - ASSIGNMENT AGREEMENT . . . . . . . . . . . . . . B-1
EXHIBIT C - ASSIGNMENT AGREEMENT . . . . . . . . . . . . . . ▇-▇
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . D-1
SCHEDULE 1.5 - DRAFT SETTLEMENT STATEMENTS
SCHEDULE 2.1.3 - ▇▇▇▇ ACTION AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement"), dated
as of March 16, 2005, is among ARCADIA ENERGY II, LLC, a Delaware
limited liability company ("Arcadia II"), and ARCADIA ENERGY III,
LLC, a Delaware limited liability company ("Arcadia III" and
collectively with Arcadia II, the "Sellers") and GREAT BAY HYDRO
MAINE, LLC, a Maine limited liability company ("GBH Maine") and
GREAT BAY HYDRO BENTON, LLC, a Maine limited liability company
("GBH Benton" and collectively with GBH Maine, the "Buyers").
R E C I T A L S
Whereas, Arcadia II owns a fifty percent (50%) general
partnership interest (the "General Partner Interest") and Arcadia
III owns a fifty percent (50%) limited partnership interest (the
"Limited Partner Interest") and, together with the General
Partnership Interest, the "Partnership Interests") in ▇▇▇▇▇▇
Falls Associates, a New York limited partnership (the
"Partnership");
Whereas, the Partnership owns and operates a hydroelectric
generation facility with a generating capacity of approximately
four point three (4.3) MW (net) located at ▇▇▇▇▇▇ Falls Benton,
Maine (the "Project");
Whereas, upon the terms and conditions hereinafter set
forth, (i) Arcadia II desires to sell and transfer to GBH Maine
the General Partner Interest, and GBH Maine desires to purchase
the General Partnership Interest from Arcadia II, and (ii)
Arcadia III desires to sell and transfer to GBH ▇▇▇▇▇▇ the
Limited Partnership Interest, and GBH ▇▇▇▇▇▇ desires to purchase
the Limited Partnership Interest from Arcadia III, with these
transactions to close simultaneously; and
Whereas, the Partnership Interests constitute all the
partnership interests of the Partnership;
Now, Therefore, in reliance upon the representations and
warranties made herein and in consideration of the mutual
covenants and agreement herein contained, Buyers and Sellers
hereby agree as follows:
ARTICLE 1
SALE AND PURCHASE OF PARTNERSHIP INTERESTS
Defined terms used herein shall have the meanings assigned
thereto in Exhibit A attached hereto and incorporated herein by
reference.
1.1 Sale and Purchase.
Upon the terms and subject to the conditions contained
herein, on the Closing Date (i) Arcadia II will sell and
transfer to GBH Maine the General Partnership Interest, and
GBH Maine will purchase and accept
from Arcadia II the General Partnership Interest, and (ii)
Arcadia III will sell and transfer to GBH ▇▇▇▇▇▇ the Limited
Partnership Interest, and GBH ▇▇▇▇▇▇ will purchase and
accept from Arcadia III the Limited Partnership Interest.
1.2 Purchase Price and Payment.
In consideration of the sales and transfers pursuant to
Section 1.1, (i) GBH Maine agrees to pay on the Closing Date
to Arcadia II, by wire transfer in immediately available
funds to the account designated by Arcadia II, a purchase
price equal to U.S. $1,064,479.21 (One Million Sixty-four
Thousand Four Hundred Seventy-nine U.S. Dollars and Twenty-
one Cents), minus any amount assumed by Buyers or paid by
the Buyers at closing on behalf of the Sellers on account of
the Mortgage Payoff, and (ii) GBH ▇▇▇▇▇▇ agrees to pay on
the Closing Date to Arcadia III, by wire transfer in
immediately available funds to the account designated by
Arcadia III, a purchase price equal to U.S. $1,064,479.21
(One Million Sixty-four Thousand Four Hundred Seventy-nine
U.S. Dollars and Twenty-one Cents), minus any amount assumed
by Buyers or paid by the Buyers at closing on behalf of the
Sellers on account of the Mortgage Payoff. The purchase
prices for the General Partnership Interest and the Limited
Partnership Interest, as adjusted pursuant to Section 6 of
this Agreement, shall be collectively identified in this
Agreement as the "Purchase Price".
1.3 ▇▇▇▇ Energy, Inc. ▇. ▇▇▇▇▇▇ Falls Associates
From and after the Closing Date, Buyers will cause the
Partnership to continue to retain the law firm of Bernstein,
Shur, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ PA, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "▇▇▇▇▇▇▇▇▇
Firm"), as attorneys for the Partnership in connection with
the civil action by ▇▇▇▇ Energy, Inc. ("▇▇▇▇"), Plaintiff,
▇. ▇▇▇▇▇▇ Falls Associates, Defendant, in the Superior
Court, Kennebec County, Maine, Docket No. CV-04-230 (the
"▇▇▇▇ Action"). The Sellers have provided to the Buyers
copies of all pleadings, motions, court determinations and
other records relating to the ▇▇▇▇ Action. From and after
the Closing Date, Sellers will (i) pay all fees and
disbursements billed by the ▇▇▇▇▇▇▇▇▇ Firm to the
Partnership in connection with the ▇▇▇▇ Action, (ii)
continue to assist the ▇▇▇▇▇▇▇▇▇ Firm in connection with the
▇▇▇▇ Action, and (iii) have the authority to make all
decisions on behalf of the Partnership with respect to ▇▇▇▇
Action, including the authority to settle the action,
provided that the Sellers may only settle such action if
such settlement provides for a complete release of the
Partnership and does not involve the payment by the
Partnership of any amount. To the extent, either through a
court decision or by a settlement, the Partnership is not
successful in its defense of the claim made by the Plaintiff
in the ▇▇▇▇ Action, Sellers will pay or reimburse the
Partnership an amount equal to Twenty-five percent (25%) of
the Nine Hundred Thirty-eight Thousand Three Hundred Dollars
($938,300) payable under the contact between the Partnership
and Cianbro Corporation, dated February 1, 2005, less such
amount as ▇▇▇▇ is required to pay to the Partnership under
any court decision, or which ▇▇▇▇ agrees to pay to the
Partnership as a result of any settlement of the ▇▇▇▇
Action. Any payments made by Sellers hereunder shall be
treated as indemnification payments in accordance with
Article 6 of this Agreement.
2
If, after the Closing Date, ▇▇▇▇ commences an action against
the Partnership that Sellers would otherwise be obligated to
provide indemnification under Article 6 of this Agreement (a
"New ▇▇▇▇ Action"), Sellers indemnification obligation under
Article 6 of this Agreement with respect to any New ▇▇▇▇
Action will not vest unless such indemnification claim is
brought within the indemnification period set forth in
Article 5 and results in a money judgment or settlement
(with Sellers' consent as set forth below) of more than
$1.00 in favor of ▇▇▇▇ against the Partnership, and in the
event of a money judgment the Partnership has exhausted all
appeals. In the event of a money judgment or settlement
(with Sellers' consent as set forth below) of more than
$1.00 in favor of ▇▇▇▇ against the Partnership, the costs
incurred by Buyers in defending and/or settling a New ▇▇▇▇
Action shall be included as an indemnifiable expense under
Article 6. No New ▇▇▇▇ Action will be settled by the
Partnership for an aggregate amount greater than $10,000
(inclusive of Buyers' attorneys' fees and expenses), without
the prior written consent of Sellers, which consent may be
granted or withheld in the sole discretion of Sellers. The
intention of the Sellers and Buyers is that Sellers will
have no indemnification obligation of any kind, including
the costs of defense, with respect to any New ▇▇▇▇ Action
that is frivolous or without substantial merit.
1.4 Closing Date
The closing of the transactions provided for herein (the
"Closing Date") will take place by mail at such time as the
conditions precedent of both Buyers and Sellers have been
satisfied or waived.
1.5 Closing Adjustments
On the Closing Date, (a) Buyers shall assume the
indebtedness secured by the mortgage on the Project, or (b)
Buyers, on behalf of the Sellers, from the proceeds of sale,
shall pay off the mortgage on the Project and, promptly
following the Closing Date, Buyers and Sellers shall cause a
discharge of that mortgage to be recorded in the Kennebec
County Clerk's office. All income and expenses of the
Project shall be adjusted as of the Closing Date as though
this transaction were a sale of the assets of the Project,
rather than a sale of the Partnership Interests. Attached
to this Agreement as Schedule 1.5 are forms of Settlement
Statements showing the Purchase Price and adjustments.
Within sixty days after the Closing Date, Sellers and Buyers
shall make any applicable readjustments to the Statement of
Sale signed on the Closing Date.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLERS
2.1 Arcadia II hereby represents and warrants to Buyers that:
2.1.1 Organization; Authority; Enforceability.
Arcadia II is duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its
organization and has the
3
requisite power and authority to enter into this Agreement
and the Assignment Agreements and to perform its obligations
hereunder and thereunder. The execution and delivery of
this Agreement and the Assignment Agreements and the
consummation of the transactions contemplated hereby and
thereby have been duly authorized by all requisite
membership actions on the part of Arcadia II. This
Agreement has been, and the Assignment Agreements will be,
duly executed and delivered by Arcadia II and constitutes
(or, in the case of the Assignment Agreements, will
constitute) the valid, binding, and enforceable obligation
of Arcadia II subject to applicable bankruptcy,
reorganization, insolvency, moratorium, and other laws
affecting creditors' rights generally from time to time in
effect and to general equitable principles (whether
considered in a proceeding at law or in equity).
2.1.2 Ability to Carry Out Agreement.
Neither Arcadia II nor any of its properties or assets is
subject to or bound by any provision of:
(i) any law, statute, rule, regulation, or judicial or
administrative decision;
(ii) its articles of organization or operating
agreement;
(iii) any mortgage, deed of trust, lease, note,
shareholders' agreement, bond, indenture, other
instrument or agreement, license, permit, trust,
custodianship, or other restriction; or
(iv) any judgment, order, writ, injunction, or decree
of any court, governmental body, administrative agency,
or arbitrator;
that would prevent, or be violated by, or under which there
would be a default (with or without notice or the passage of
time or both) as a result of, the execution, delivery, and
performance by Arcadia II of this Agreement or the
Assignment Agreements and the transactions contemplated
hereby or thereby.
2.1.3 Litigation.
Except as provided in Schedule 2.1.3 attached hereto, as of
the date hereof there is no action, suit, proceeding, or
investigation pending or, to the best of Arcadia II's
knowledge, threatened against Arcadia II or the Partnership
at law, in equity, or otherwise, in, before, or by any court
or governmental agency or authority that seeks to prohibit,
or which could reasonably be expected by Arcadia II or the
Partnership to prohibit, consummation of the transactions
contemplated hereby.
2.1.4 Brokers and Intermediaries.
Neither the Partnership nor Arcadia II has employed any
broker, finder, advisor, or intermediary in connection with
the transactions
4
contemplated by this Agreement who would be entitled to a
broker's, finders, or similar fee or commission in
connection therewith or upon the consummation thereof.
2.1.5 Ownership of the General Partner Interest.
The General Partner Interest is owned of record and
beneficially held by Arcadia II. Arcadia II has good and
valid title to its General Partner Interest, free and clear
of any and all liens, claims, security interests, pledges,
options, preemptive rights or other encumbrances
("Encumbrances"). No consent of any Person under any
contract or agreement to which Arcadia II or the Partnership
is a party is required for execution, delivery and
performance by Arcadia II of this Agreement.
2.1.6 Organization of Partnership; Authority: Enforceability.
The Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the
State of New York and has all requisite power and authority
to own, lease and operate its properties and to carry on its
business as is now being conducted and is qualified to do
business in the State of Maine. Sellers shall deliver to
Buyers complete and correct copies of Partnership's
organizational documents and proof that the Partnership is
qualified to do business in the State of Maine.
2.1.7 Due Diligence Materials
To the Knowledge of Arcadia II, the copies of the due
diligence documents furnished by Arcadia II to Buyers prior
to the execution and delivery of this Agreement were
reasonably complete and accurate in all material respects,
and to the Knowledge of Arcadia II, the Partnership has made
all the necessary filings with the State of Maine and FERC.
2.1.8 Taxes
(a) The Partnership has prepared completely and accurately
and timely filed all federal, state and local tax returns
and reports required to be filed by them and have duly paid
or, where payment is not yet required to be made,
established adequate reserves for the proper payment of all
taxes and other governmental charges upon them or their
respective properties, assets, income, franchises, licenses
or sales. Arcadia II knows of no unpaid assessment or
proposed assessment by any taxing authority for additional
taxes or interest or penalties for which the Partnership has
not provided adequate reserves for any such fiscal period or
to the date hereof. There are no tax audits investigations,
protests, liens, appeals or similar proceedings pending or,
to the Knowledge of Arcadia II, threatened against the
Partnership. No statute of limitation has been extended
with respect to any federal, state or local return. As used
herein and elsewhere in this Agreement, "Knowledge" means
the actual knowledge, after reasonable inquiry, of any
officer or senior manager of the Partnership and the
applicable Seller.
5
(b) No election has been made with respect to the
Partnership to treat the Partnership as a corporation or an
association taxable as a corporation for income tax purposes
pursuant to IRC Regulations 301.7701-1 through 3.
2.1.9 Disclaimer of Other Representations and Warranties:
Disclosure.
ARCADIA II DOES NOT MAKE, AND HAS NOT MADE, ANY
REPRESENTATIONS OR WARRANTIES RELATING TO SELLERS, THE
PARTNERSHIP, THE PROJECT OR THE BUSINESS OF THE PARTNERSHIP
OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY OTHER THAN THOSE EXPRESSLY SET FORTH IN
THIS AGREEMENT. NO PERSON HAS BEEN AUTHORIZED BY ARCADIA II
TO MAKE ANY REPRESENTATION OR WARRANTY RELATING TO SELLERS,
THE PARTNERSHIP, THE PROJECT OR THE BUSINESS OF THE
PARTNERSHIP OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY, AND, IF MADE, SUCH REPRESENTATION OR
WARRANTY MAY NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY
ARCADIA II.
2.2 Arcadia III hereby represents and warrants to Buyers that:
2.2.1 Organization; Authority; Enforceability.
Arcadia III is duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its
organization and has the requisite power and authority to
enter into this Agreement and the Assignment Agreements and
to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Assignment
Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by
all requisite membership actions on the part of Arcadia III.
This Agreement has been, and the Assignment Agreements will
be, duly executed and delivered by Arcadia III and
constitutes (or, in the case of the Assignment Agreements,
will constitute) the valid, binding, and enforceable
obligation of Arcadia III subject to applicable bankruptcy,
reorganization, insolvency, moratorium, and other laws
affecting creditors' rights generally from time to time in
effect and to general equitable principles (whether
considered in a proceeding at law or in equity).
2.2.2 Ability to Carry Out Agreement.
Neither Arcadia III nor any of its properties or assets is
subject to or bound by any provision of:
(i) any law, statute, rule, regulation, or judicial or
administrative decision;
(ii) its articles of organization or operating
agreement;
6
(iii) any mortgage, deed of trust, lease, note,
shareholders' agreement, bond, indenture, other
instrument or agreement, license, permit, trust,
custodianship, or other restriction; or
(iv) any judgment, order, writ, injunction, or decree
of any court, governmental body, administrative agency,
or arbitrator;
that would prevent, or be violated by, or under which there
would be a default (with or without notice or the passage of
time or both) as a result of, the execution, delivery, and
performance by Arcadia III of this Agreement or the
Assignment Agreements and the transactions contemplated
hereby and thereby.
2.2.3 Litigation.
Except as provided in Schedule 2.1.3 attached hereto, as of
the date hereof there is no action, suit, proceeding, or
investigation pending or, to the best of Arcadia III's
knowledge, threatened against Arcadia III or the Partnership
at law, in equity, or otherwise, in, before, or by any court
or governmental agency or authority that seeks to prohibit,
or which could reasonably be expected by Arcadia III to
prohibit, consummation of the transactions contemplated
hereby.
2.2.4 Brokers and Intermediaries.
Neither Arcadia III nor the Partnership has employed any
broker, finder, advisor, or intermediary in connection with
the transactions contemplated by this Agreement who would be
entitled to a broker's, finders, or similar fee or
commission in connection therewith or upon the consummation
thereof.
2.2.5 Ownership of the Limited Partner Interest.
The Limited Partner Interest is owned of record and
beneficially held by Arcadia III. Arcadia III has good and
valid title to its Limited Partner Interest, free and clear
of any Encumbrances. No consent of any Person under any
contract or agreement to which Arcadia III or the
Partnership is a party is required for execution, delivery
and performance by Arcadia III of this Agreement.
2.2.6 Disclaimer of Other Representations and Warranties:
Disclosure.
ARCADIA III DOES NOT MAKE, AND HAS NOT MADE, ANY
REPRESENTATIONS OR WARRANTIES RELATING TO SELLERS, THE
PARTNERSHIP, THE PROJECT, OR THE BUSINESS OF THE PARTNERSHIP
OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY OTHER THAN THOSE EXPRESSLY SET FORTH IN
THIS AGREEMENT. NO PERSON HAS BEEN AUTHORIZED BY ARCADIA
III TO MAKE ANY REPRESENTATION OR WARRANTY RELATING TO
SELLERS, THE PARTNERSHIP, THE PROJECT OR THE BUSINESS OF THE
PARTNERSHIP OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY, AND,
7
IF MADE, SUCH REPRESENTATION OR WARRANTY MAY NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY ARCADIA III.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer represents and warrants to Sellers with respect
to itself as follows:
3.1 Organization; Authority; Enforceability.
Buyer is a limited liability company, validly existing and
in good standing under the laws of the State of Maine, with
the power and authority to enter into this Agreement and to
perform each of their obligations hereunder. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized
by all requisite action on the part of Buyer. This
Agreement has been duly executed and delivered by Buyer and
constitutes the valid, binding, and enforceable obligation
of Buyer, subject to applicable bankruptcy, reorganization,
insolvency, moratorium, and other laws affecting creditors'
rights generally from time to time in effect and to general
equitable principle (whether considered in a proceeding at
law or in equity).
3.2 Ability to Carry Out the Agreement.
(a) Buyer is not subject to or bound by any provision of
(i) any law, statute, rule, regulation, or judicial or
administrative decision;
(ii) its Articles of Organization or Limited Liability
Company Operating Agreement;
(iii) any mortgage, deed of trust, lease note,
equity holders' agreement, bond, indenture, other
material instrument or agreement, license, permit,
trust, custodianship, or other restriction; or
(iv) any judgment, order, writ, injunction, or decree
of any court, governmental body, administrative agency,
or arbitrator;
that would prevent, or be violated by, or under which there
would be a default (with or without notice or the passage of
time or both) as a result of, the execution, delivery, and
performance by Buyer of this Agreement and the transactions
contemplated hereby.
(b) No consent of any Person under any material contract or
agreement to which Buyer is a party is required for the
execution, delivery, and performance by Sellers of this
Agreement and the transactions contemplated hereby.
8
3.3 Litigation.
There are no actions, suits, proceedings, orders, or
investigations pending or, to the best of Buyer's knowledge,
threatened against or affecting either Buyer at law or in
equity, or before or by any federal, state, municipal, or
other governmental department, commission, arbitration,
board, bureau, agency or instrumentality, domestic or
foreign, that would adversely affect Buyer's performance
under this Agreement or the consummation of the transactions
contemplated hereby.
3.4 Brokers and Intermediaries.
Buyer has not employed any broker, finder, advisor, or
intermediary in connection with the transactions
contemplated by this Agreement who would be entitled to a
broker's, finders, or similar fee or commission in
connection therewith or upon the consummation thereof.
3.5 Investment Intent.
(a) Buyer understands that the Partnership Interests are
being offered and sold without registration under the
Securities Act of 1933, as amended (the "Act"), and
applicable state securities laws in reliance upon an
exemption from the registration requirements of the Act and
applicable state securities laws;
(b) Buyer understands that the sale of a security is
subject to restrictions on transferability and resale except
as permitted under the Act and applicable state securities
laws and it is acquiring the Partnership Interests solely
for its own account, for investment, and not with a view to
resale;
(c) Buyer has independently and without reliance upon
Sellers (except to the extent of Sellers' representations
and warranties in this Agreement and the due diligence
materials provided by Sellers), reviewed such information as
it has deemed adequate and appropriate and made its own
analysis of an investment in the Partnership Interests;
(d) Buyer has not relied upon any investigation or analysis
conducted by or advice from, nor, except as otherwise
expressly set forth in this Agreement or in any certificate
or instrument to be delivered by the Sellers pursuant
hereto, any warranty or representation by, Sellers or any
agent or employee of either of Sellers, express or implied,
concerning the financial condition of the Project, the
Partnership, or any tax or economic benefits of purchasing
the Partnership Interests;
(e) Buyer has had access to all information that it deems
necessary to evaluate the merits and risks of purchasing the
Partnership Interests, including the opportunity to ask
questions, receive answers and obtain additional information
from Sellers necessary to verify the accuracy of information
provided;
9
(f) Buyer or any of its authorized representatives acting
on its behalf has such knowledge and experience in business
and financial matters necessary to evaluate the merits and
risks of purchasing the Partnership Interests. Buyer
further represents that it is experienced in purchasing
interests similar to the Partnership Interests and that it
is financially able to undertake the risks involved in
purchasing the Partnership Interests.
3.6 Financial Capability.
Buyer has the financial capability to purchase the
Partnership Interests on the terms and conditions contained
in this Agreement and will have such capability on the
Closing Date.
ARTICLE 4
CERTAIN COVENANTS AND AGREEMENTS OF SELLERS AND BUYERS
4.1 Tax Matters.
(a) The terms "tax" or "taxes" shall mean any federal,
state, local, or foreign income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes
under Section 59A of the Code), customs duties, capital
stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of
any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not, or with respect
to which any relevant entity is liable as a successor,
pursuant to contract or otherwise.
(b) The Partnership shall terminate pursuant to
IRC 708(b)(1)(B) and the taxable year of the Partnership
shall close with respect to the Sellers on the Closing Date
as required by IRC 706(c)(1). The distributable shares of
the Sellers of income, gain, loss, deduction, recapture or
credit of the Partnership shall be determined by the closing
of the books method.
(c) After the Closing Date, Buyers and Sellers shall
provide each other, and Buyers shall cause the Partnership
to provide Sellers, with such cooperation and information
relating to the Partnership as any party reasonably may
request in filing any return (or amended return) or refund
claim, determining any tax liability or a right to a refund,
conducting or defending any audit or other proceeding in
respect of taxes related to the business of the Partnership,
or effectuating the terms of this Agreement. The parties
shall retain, and Buyers shall cause the Partnership to
retain, all returns, schedules, work papers, and other
material documents relating thereto until the expiration of
any relevant statute of limitations (and, to the extent
notified by any party, any extensions thereof) and, unless
such returns and other documents are offered and delivered
to Sellers or Buyers, as applicable, until the final
determination of any tax in respect of such years. Any
information obtained under this Section 4.1(c) shall be kept
confidential, except as may be otherwise necessary in
connection with filing any return (or amended return) or
refund claim, determining any tax liability or a right to a
refund, conducting or defending any
10
audit or other proceeding in respect of taxes, or otherwise
effectuating the terms of this Agreement. Neither Sellers
nor Buyers, or any of their Affiliates, shall be required
unreasonably to prepare any document, or determine any
information not then in its possession, in response to a
request under this Section 4.1(c).
(d) All transfer taxes, including registration, stamp,
value-added, or other similar taxes that are payable by
reason of the transactions contemplated by this Agreement or
attributable to the sale, transfer or delivery of the
Partnership Interests hereunder shall be borne equally by
the Sellers, on the one hand, and the Buyers, on the other
hand.
(e) The Buyers agree that the income or loss resulting from
the operation of the Partnership after the Closing Date
shall be included in the federal and state income tax
returns of the Buyers for the tax periods after the Closing
Date. The Buyers shall be responsible for the payment of
any federal and state income taxes resulting from the
inclusion of such income on the federal and state income tax
returns of the Partnership subsequent to the Closing Date.
4.2 Books and Records.
Except as otherwise provided in Section 4.1, for a period of
three (3) years after the Closing Date, Buyers will, and
will cause the Partnership to, retain all books, records,
and other documents pertaining to the businesses of the
Partnership in existence on the Closing Date and to make the
same available after the Closing Date for inspection and
copying by Sellers for any reason pertaining to the period
prior to the Closing Date and Sellers' ownership of the
Partnership Interests at Sellers' expense during the normal
business hours of Buyers or the Partnership, as applicable,
and upon reasonable notice. During such three-year period,
no such books, records, or documents shall be destroyed by
Buyers or the Partnership without first advising Sellers in
writing and giving Sellers a reasonable opportunity to
obtain possession thereof. Without limiting the generality
of the foregoing, Buyers will, and will cause the
Partnership to, make available to Sellers, the Affiliates of
Sellers, and their respective representatives all
information deemed necessary or desirable by Sellers in
preparing its financial statements and conducting any audits
in connection therewith.
4.3 Confidential Information.
(a) Each Seller and their respective Affiliates shall hold in
confidence all knowledge and information of a secret or
confidential nature with respect to the business of the
Partnership and shall not disclose, publish or make use of the
same without the consent of the Buyers, except to the extent that
such information shall have become public knowledge other than by
breach of this Agreement by the Sellers.
(b) Each Seller agrees that the remedy at law for any
breach of this Section 4.3 would be inadequate and that the
Buyers shall be entitled to injunctive relief in addition to
any other remedy it may have upon breach of any provision of
this Section 4.3.
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ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The respective representations and warranties of Sellers and
of Buyers hereunder shall be deemed made again as of the
Closing Date and shall survive the Closing Date for a period
of one (1) year thereafter, except for the representations
and warranties set forth in Section 2.1.8, which shall
survive for the period of the statute of limitations
applicable to any Tax Return or tax, and all rights and
obligations of the parties in respect thereof shall
terminate at the close of such one-year period except with
respect to any claims made in writing within such one-year
period. Notwithstanding the foregoing, the representations
and warranties of the Sellers set forth in Sections 2.1.1,
2.1.2, 2.1.5, 2.2.1, 2.2.2 and 2.2.5 shall survive without
limitation.
ARTICLE 6
INDEMNIFICATION
6.1.1 Arcadia II Indemnification of Buyers.
Arcadia II agrees to defend, indemnify, and hold harmless
each Buyer and its successors and assigns (individually, a
"Buyer Indemnitee" and collectively, the "Buyer
Indemnitees") against and in respect of:
(a) any and all losses, damages, deficiencies or other
liabilities ("Losses") to any third party caused by, resulting or
arising from, or otherwise relating to:
(i) any failure by either Seller to perform or otherwise fulfill
or comply with any undertaking or other agreement or obligation
hereunder to be performed, fulfilled, or otherwise complied with
by such Seller before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations,
warranties or covenants of Arcadia II made in this Agreement, but
only if (A) the Buyers discovered such inaccuracy or breach after
the Closing Date and (B) the claim or demand for such
indemnification is asserted in writing prior to the date upon
which such representation or warranty expires, if any, pursuant
to Article 5; or
(iii) any failure by the Partnership to perform or otherwise
fulfill or comply with any undertaking or other agreement or
obligation hereunder to be performed, fulfilled, or otherwise
complied with by the Partnership on or before the Closing Date,
except with respect to the installation and operation of the Fish
Lift, for which Buyers are assuming full liability hereunder; or
(iv) any and all liabilities or obligations of the Partnership
that accrued or arose in the course of the operation of the
business of the Partnership on or before the Closing Date, except
12
with respect to the installation and operation of the
Fish Lift, for which Buyers are assuming full liability
hereunder, regardless of whether such liabilities or
obligations accrued or arose before or after the
Closing Date.
(b) any and all actions, suits, proceedings, amounts paid in
settlement, claims, liabilities, demands, assessments, judgments,
costs, and expenses (collectively, "Costs"; Costs and Losses
together shall hereinafter be referred to collectively as
"Damages"), including reasonable attorneys' fees (whether or not
incurred by Buyers in connection with any action, suit,
proceeding, or claim against Arcadia II hereunder) incident to
any of the foregoing or such indemnification; provided, however,
that if Damages are asserted against any Buyer Indemnitee in
respect of which such Buyer Indemnitee proposes to demand
indemnification, such Buyer Indemnitee shall notify Arcadia II
thereof within a reasonable period of time after assertion
thereof. Subject to rights of or duties to any insurer or other
third person having liability therefor, Arcadia II shall have the
right after acknowledging to the applicable Buyer Indemnitee its
liability therefor within ten (10) days after receipt of such
notice to assume the control of the defense, compromise, or
settlement of any such Damages, including, at its own expense,
employment of counsel and at any time thereafter to exercise on
behalf of Buyer Indemnitee any rights that may mitigate any such
Damages; provided, however, that if Arcadia II exercises its
right to assume such control, Buyer Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it
(in addition to counsel employed by Arcadia II, and in the latter
case, at Buyer Indemnitee's sole expense) in any such matter, and
in such event counsel selected by Arcadia II shall be required to
cooperate with such counsel of Buyer Indemnitee in such defense,
compromise, or settlement for the purpose of informing and
sharing information with such Buyer Indemnitee,
(ii) will, at its own expense, make available to Arcadia II those
employees of Buyers or any Affiliate of Buyers (including, but
not limited to, the Partnership) whose assistance, testimony, or
presence is necessary to assist Arcadia II in evaluating and in
defending any such Damages; provided, however, that such
availability shall be provided in such a manner as not to
interfere unreasonably with the operations of the businesses of
Buyers and its Affiliates (including, but not limited to, the
Partnership), and
(iii) will not enter into any settlement of a claim
against Buyers without the full release of such claim
against Buyers.
6.1.2 Arcadia III Indemnification of Buyers.
Arcadia III agrees to defend, indemnify, and hold harmless
each Buyer Indemnitee against and in respect of:
(a) any and all Losses to any third party caused by,
resulting or arising from, or otherwise relating to:
13
(i) any failure by Arcadia III to perform or otherwise fulfill
or comply with any undertaking or other agreement or obligation
hereunder to be performed, fulfilled, or otherwise complied with
by Arcadia III on or before the Closing Date; or
(ii) the inaccuracy or breach of any of the representations,
warranties or covenants of Arcadia III made in this Agreement,
but only if the claim or demand for such indemnification is
asserted in writing prior to the date upon which such
representation or warranty expires, if any, pursuant to
Article 5; or
(b) any and all Damages, including reasonable attorneys'
fees (whether or not incurred by Buyers in connection with
any action, suit, proceeding, or claim against Arcadia III
hereunder) incident to any of the foregoing or such
indemnification; provided, however, that if Damages are
asserted against any Buyer Indemnitee in respect of which
such Buyer Indemnitee proposes to demand indemnification,
such Buyer Indemnitee shall notify Arcadia III thereof
within a reasonable period of time after assertion thereof.
Subject to rights of or duties to any insurer or other third
person having liability therefor, Arcadia III shall have the
right after acknowledging to the applicable Buyer Indemnitee
its liability therefor within ten (10) days after receipt of
such notice to assume the control of the defense,
compromise, or settlement of any such Damages, including, at
its own expense, employment of counsel and at any time
thereafter to exercise on behalf of Buyer Indemnitee any
rights that may mitigate any such Damages; provided,
however, that if Arcadia III exercises its right to assume
such control, Buyer Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it
(in addition to counsel employed by Arcadia III, and in the
latter case, at Buyer Indemnitee's sole expense) in any such
matter, and in such event counsel selected by Arcadia III shall
be required to cooperate with such counsel of Buyer Indemnitee in
such defense, compromise, or settlement for the purpose of
informing and sharing information with such Buyer Indemnitee,
(ii) will, at its own expense, make available to Arcadia III
those employees of Buyers or any Affiliate of Buyers (including,
but not limited to, the Partnership) whose assistance, testimony,
or presence is necessary to assist Arcadia III in evaluating and
in defending any such Damages; provided, however, that such
availability shall be provided in such a manner as not to
interfere unreasonably with the operations of the businesses of
Buyers and its Affiliates (including, but not limited to, the
Partnership), and
(iii) will not enter into any settlement of a claim
against Buyers without the full release of such claim
against Buyers.
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6.2 Indemnification of Sellers.
Each of the Buyers, jointly and severally, agrees to defend,
indemnify, and hold harmless Sellers and their respective
successors and assigns (individually, a "Seller Indemnitee"
and collectively, the "Sellers Indemnitees"), against and in
respect of:
(a) any and all Losses to any third party caused by,
resulting or arising from, or otherwise relating to:
(i) any failure of either Buyer to perform or otherwise fulfill
or comply with any undertaking or other agreement or obligation
hereunder to be performed, fulfilled, or otherwise complied with
by Buyer before, on, or after the Closing Date; or
(ii) the inaccuracy or breach of any of the representations,
warranties or covenants made by Buyer in this Agreement, but only
if the claim or demand for such indemnification is asserted prior
to the date upon which such representation or warranty expires
pursuant to Article 5; or
(iii) any and all liabilities or obligations of the
Partnership that accrue or arise in the course of the operation
of the business of the Partnership after the Closing Date,
(iv) any and all liabilities or obligations of the Partnership
with respect to the installation and operation of the Fish Lift,
regardless of whether such liabilities or obligations accrued or
arose before or after the Closing Date.
(b) any and all Damages, including reasonable attorneys'
fees (whether or not incurred by Sellers or any Affiliate of
Sellers in connection with any action, suit, proceeding, or
claim against a Buyer hereunder), incident to any of the
foregoing or such indemnification; provided, however, that
if any Damages are asserted against any Seller Indemnitee in
respect of which such Seller Indemnitee proposes to demand
indemnification, such Seller Indemnitee shall notify Buyers
thereof within a reasonable period of time after assertion
thereof. Subject to rights of or duties to any insurer or
other third person having liability therefor, Buyers shall
have the right after acknowledging to the applicable Seller
Indemnitee its liability therefor within ten (10) days after
receipt of such notice to assume the control of the defense,
compromise, or settlement of any such Damages, including, at
its own expense, employment of counsel and at any time
thereafter to exercise on behalf of Seller Indemnitee any
rights that may mitigate any of such Damages; provided,
however, that if any Buyer exercises its right to assume
such control, Seller Indemnitee:
(i) may, in its sole discretion, employ counsel to represent it
(in addition to counsel employed by Buyer, and in the latter
case, at Seller Indemnitee's sole expense) in any such matter,
and in such event counsel selected by Buyer shall be required to
cooperate with such counsel of Seller Indemnitee in such defense,
15
compromise, or settlement for the purpose of informing
and sharing information with such Seller Indemnitee,
and
(ii) will, at its own expense, make available to Buyer those
employees of Sellers or any Affiliate of Sellers whose
assistance, testimony, or presence is necessary to assist Buyer
in evaluating and in defending any such Damages; provided,
however, that any such availability shall be provided in such a
manner as not to interfere unreasonably with the operations of
the businesses of Sellers and their Affiliates.
(c) In the event that no fine is assessed against the
Partnership as of December 31, 2005 for its failure to
construct an operational fish passage facility at the
Project on or prior to May 1, 2005, the amount of
Eighteen Thousand Dollars ($18,000) that has been
deducted from the Purchase Price hereunder as a credit
towards the payment of such fine by the Partnership to
the Kennebec River Restoration Fund, which shall be
refunded to the Sellers on or before January 16, 2006.
6.3 Undertakings.
Prior to the assertion of any claims for indemnification
under this Agreement, the indemnified party shall utilize
all reasonable efforts, consistent with normal practices and
policies and good commercial practice, to mitigate such
Damages, and costs incurred in so mitigating Damages that
are the subject of an indemnity covenant under this
Agreement shall constitute Damages also subject to such
indemnity covenant.
6.4 Certain Limitations.
The liability of Sellers or Buyers, as applicable, for
claims under this Agreement shall be limited by the
following:
(a) Damages shall in no event include any special,
indirect, punitive, incidental, or consequential damages
whatsoever.
(b) The parties mutually agree, for tax purposes, to treat
Damages recovered hereunder as an adjustment of the Purchase
Price.
(c) The amount of Damages otherwise recoverable under this
Article 6 shall be reduced to the extent to which any
federal, state, local, or foreign tax liabilities of Seller
Indemnitee or Buyer Indemnitee, as applicable, or any of
their respective Affiliates is decreased by reason of any
Damage in respect of which such Seller Indemnitee or Buyer
Indemnitee, as applicable, shall be entitled to indemnity
under this Agreement.
(d) No claim or claims shall be asserted by a Buyer
Indemnitee against either Seller or both of them pursuant to
the provisions of this Article 6 unless and until the amount
of such indemnitee's Damages exceeds U.S. $100,000 (One
Hundred Thousand U.S. Dollars) in the
16
aggregate against either Seller or both of them, whereupon
such Buyer Indemnitee shall be entitled to assert one or
more claims hereunder for the full amount of its Damages as
to which such claim or claims are asserted, without
deduction of any amount therefrom. The limitation set forth
in this Section 6.4(d) shall not apply to any claim for
Damages arising out of a breach of the representations and
warranties set forth in Sections 2.1.5 and 2.2.5 of this
Agreement.
(e) The aggregate amount of Damages recoverable pursuant to
the provisions of Section 6.1.1 of this Article 6 by all
Buyer Indemnitees against Arcadia II shall be limited to the
Purchase Price. The aggregate amount of Damages recoverable
pursuant to the provisions of Section 6.1.2 of this
Article 6 by all Buyer Indemnitees against Arcadia III shall
be limited to the portion of the Purchase Price paid to
Arcadia III. For the avoidance of doubt, in no event may
the aggregate amount of Damages recoverable pursuant to this
Agreement by all Buyer Indemnitees against the Sellers be
greater than the Purchase Price.
6.5 Survival.
Notwithstanding anything herein to the contrary, the
provisions of this Article 6 shall survive the expiration or
earlier termination of this Agreement.
6.6 Exclusive Remedy.
The sole and exclusive remedy of both Buyer and Sellers
under this Agreement shall be restricted to the
indemnification rights set forth in this Article 6, except
for any claim based upon intentional misrepresentation or
fraud.
ARTICLE 7
CONDITIONS PRECEDENT OF SELLERS
The obligation of Sellers to consummate the transactions
described in Article 1 hereof is subject to the receipt by
Sellers of the Purchase Price, as contemplated in Section 1.2,
and the fulfillment of each of the following conditions prior to
or on the Closing Date:
7. 1 Representations and Warranties
The representations and warranties of Buyers made hereunder
shall be true in all material respects at and as of the
Closing Date, with the same force and effect as though made
at and as of the Closing Date, except for changes permitted
or contemplated by this Agreement.
7.2 Agreements
Buyers shall have performed and complied in all material
respects with all their covenants, undertakings and
agreements required by this Agreement to be performed or
complied with by Buyers prior to or on the Closing Date.
17
7.3 No Injunction
No injunction, restraining order or decree of any nature of
any court or governmental or regulatory authority shall
exist against Buyers, Sellers, the Partnership, subsidiaries
or any of their respective Affiliates, or any of the
principals, of officers, directors, partners or members of
any of them, that restrains, prevents or materially changes
the transactions contemplated hereby.
7.4 Partnership LC
In connection with the Power Purchase Agreement, Sellers
shall have received evidence of a letter of credit delivered
to CMPC as a replacement for the Partnership LC.
ARTICLE 8
CONDITIONS PRECEDENT OF BUYERS
The obligation of Buyers to consummate the transactions described
in Article 1 hereof is subject to the fulfillment of each of the
following conditions prior to or on the Closing Date:
8.1 Representations and Warranties
The representations and warranties of Sellers made hereunder
shall be true in all material respects at and as of the
Closing Date, with the same force and effect as though made
at and as of the Closing Date, except for changes permitted
or contemplated by this Agreement.
8.2 Agreements
Sellers shall have performed, and complied in all material
respects with, all of their respective undertakings and
agreements required by this Agreement to be performed or
complied with prior to or on the Closing Date.
8.3 No Injunction
No injunction, restraining order or decree of any court or
governmental or regulatory authority shall exist against
Buyers, Sellers, the Partnership or any of their respective
Affiliates, or any of the principals, officers, directors,
partners or members of any of them, that restrains or
prevents the transactions contemplated hereby.
8.4 Miscellaneous Closing Deliveries
Each Buyer shall have received on the Closing Date each of
the following:
(a) an executed copy of the Assignment Agreement in the forms of
Exhibits B and C annexed to this Agreement;
18
(b) an amendment to the Certificate of Limited Partnership
executed by Sellers and Buyers;
(c) a FIRPTA Affidavit;
(d) a balance sheet of the Partnership as of the Closing Date;
(e) a certificate from the Secretary of State of the State of
New York as to the legal existence and good standing of the
Partnership in New York;
(f) a certificate from the Secretary of State of the State of
Maine as to the qualification to do business and good standing
(including tax) of the Partnership in Maine;
(g) A certificate of the Sellers, attesting to the satisfaction
of the conditions set forth in Sections 8.1 through 8.3 of this
Agreement;
(h) the original record books of the Partnership;
(i) evidence of Sellers' relinquishment of control of
Partnership's bank accounts, physical facilities and all other
Partnership assets; and
(j) a cross receipt executed by the Buyers and the Sellers.
ARTICLE 9
MISCELLANEOUS
9.1 Further Assurances.
From time to time after the Closing Date, Sellers will
execute and deliver, or cause to be executed and delivered,
such documents to Buyers as Buyers shall reasonably request
in order to vest more effectively in Buyers good title to
the Partnership Interests, and from time to time after the
Closing Date, Buyers will execute and deliver, or cause to
be executed and delivered, such documents to Sellers as
Sellers shall reasonably request in order to consummate more
effectively the transactions contemplated by this Agreement.
9.2 Expenses.
Except as provided in this Article 9, each of the parties
hereto shall pay the fees and expenses of its respective
counsel, accountants, and other experts and shall pay all
other expenses incurred by it in connection with the
negotiation, preparation, and execution of this Agreement
and the consummation of the transactions contemplated
hereby.
19
9.3 Applicable Law.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Maine without
reference to choice of law principles, including all matters
of construction, validity, and performance.
9.4 Judicial Proceedings: Waiver of Jury Trial.
(a) Any judicial proceeding brought against any party to
this Agreement or its Affiliates with respect to any claim
related to this Agreement may be brought in any court of
competent jurisdiction in the State of Maine, and, by the
execution and delivery of this Agreement, each party to this
Agreement accepts, generally and unconditionally, the
nonexclusive jurisdiction of such courts in the State of
Maine and any related appellate court, irrevocably agrees to
be bound by any judgment rendered thereby in connection with
any claim related to this Agreement, and irrevocably waives
any objection it may now or hereafter have as to the venue
of any such proceeding brought in such a court or that such
a court is an inconvenient forum. Any judicial proceeding
brought by any party to this Agreement involving any claim
related to this Agreement shall be brought only in a court
located in the State of Maine.
(b) EACH PARTY TO THIS AGREEMENT, AFTER HAVING CONSULTED
WITH COUNSEL, HEREBY KNOWINGLY, INTENTIONALLY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
TO WHICH IT IS A PARTY INVOLVING ANY CLAIM ARISING OUT OF OR
RELATED TO THIS AGREEMENT.
9.5 Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if
signed by the respective person giving such notice or other
communication (in the case of any corporation, the signature
shall be by an authorized officer thereof) upon receipt of
hand delivery, certified or registered mail (return receipt
requested), or telecopy transmission with conformation of
receipt:
If to Arcadia II: Arcadia Energy II, LLC
c/o The Arcadia Companies
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)-▇▇▇-▇▇▇▇, Ext. 100
Fax: (▇▇▇)-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
If to Arcadia III:Arcadia Energy III, LLC
c/o The Arcadia Companies
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Ext. 100
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Bond, ▇▇▇▇▇▇▇▇▇ & King, PLLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyers, to: BayCorp Holdings, Ltd.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, P.C.
Such names and addresses may be changed by such notice.
9.6 Entire Agreement.
This Agreement (including the documents referred to herein)
constitutes the entire agreement among the parties hereto
and supersedes any prior understandings, agreements or
representations by or among the parties, written or oral,
with respect to the subject matter hereof. The parties
agree and acknowledge that (i) this Agreement has not been
entered into under undue time pressure, and that all parties
have had an adequate opportunity to review this Agreement
with counsel, (ii) no oral assurances have been given by any
party that this Agreement is an interim agreement or that a
more comprehensive agreement is or will be forthcoming,
(iii) there are no oral conditions or promises that
supplement or modify this Agreement, and (iv) this Section
9.6 does not constitute "boilerplate", but rather is a
critical substantive provision of this Agreement.
9.7 Amendment.
This Agreement may be amended only by a written instrument
executed by the parties or their respective successors or
assigns.
9.8 Headings: References.
The article, section, and paragraph headings contained in
this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement. All references herein to "Articles", "Sections",
or "Schedules" shall be deemed to be references to Articles
or Sections hereof or Schedules hereto unless otherwise
indicated.
9.9 Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original.
9.10 Parties in Interest: Assignment.
This Agreement shall inure to the benefit of and be binding
upon Sellers and Buyers and their respective successors and
assigns. Except as provided in or contemplated by Article 6
(which shall confer upon the Persons referred to therein for
whose benefit it is intended the right to enforce such
Article), nothing in this Agreement, express or implied, is
intended to confer upon any Person not a party to this
Agreement any rights or remedies under or by reason of this
Agreement. No party to this Agreement may assign all or any
portion of its rights, obligations, or liabilities under
this Agreement without the prior written consent of the
other parties to this Agreement.
9.11 Severability: Enforcement.
The invalidity of any portion hereof shall not affect the
validity, force, or effect of the remaining portions hereof.
If it is ever held that any restriction hereunder is too
broad to permit enforcement of such restriction to its
fullest extent, each party agrees that a court of competent
jurisdiction may enforce such restriction to the maximum
extent permitted by law, and each party hereby consents and
agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such
restriction.
9.12 Waiver.
Any of the conditions to the Closing Date set forth in this
Agreement may be waived in writing at any time prior to or
at the Closing Date hereunder by the party entitled to the
benefit thereof. The failure of any party hereto to enforce
at any time any of the provision of this Agreement shall in
no way be construed to be a waiver of any such provision or
to affect the validity of this Agreement or any part hereof
or the right of such party thereafter to enforce each and
every such provision. No waiver of any breach of or
noncompliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or non-compliance.
9.13 Survival.
Notwithstanding anything herein to the contrary, the
provisions of this Article 9 shall survive the expiration or
earlier termination of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be duly executed and delivered by its authorized
representatives as of the day and year first written above.
SELLERS
Arcadia Energy II, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
Arcadia Energy III, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager Member
BUYERS
Great Bay Hydro Maine, LLC
BayCorp Holdings, Ltd., Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Title: President
Great Bay Hydro ▇▇▇▇▇▇, LLC
BayCorp Holdings, Ltd., Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Title: President
The undersigned acknowledges that he has personally guaranteed
the obligations of the Sellers pursuant to Section 6 of this
Purchase and Sale Agreement under and subject to the terms and
conditions of a Limited Guaranty, of even date herewith, executed
by the undersigned in favor of the Buyers, a copy of which is
attached hereto as Exhibit D.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇