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EXHIBIT 10.69
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of October 13, 1998, by and between
MONTAUP ELECTRIC COMPANY, a Massachusetts corporation (the "SELLER"), and NRG
ENERGY, INC., a Delaware corporation (the "BUYER").
WHEREAS, the Buyer desires to purchase, and the Seller desires to sell,
the Purchased Assets upon the terms and conditions hereinafter set forth in this
Agreement:
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements hereinafter set forth, and intending
to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. (a) As used in this Agreement, the following terms have
the meanings specified in this Section 1.1(a).
(1) "AFFILIATE" has the meaning set forth in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act.
(2) "ALLOWANCE" means (i) an authorization by the Administrator of the
United States Environmental Protection Agency under the Acid Rain Program to
emit up to one ton of sulfur dioxide during or after a specified calendar year;
or (ii) an authorization by the Massachusetts Department of Environmental
Protection under the state Nitrogen Oxides ("NOX") Budget Program authorizing
the emission of up to one ton of NOX during the ozone season, May 1 through
September 1 of each year.
(3) "ANCILLARY AGREEMENTS" means the Wholesale Standard Offer Service
Agreement and the Interconnection Agreement.
(4) "BENEFIT ARRANGEMENT" means any employment, severance or similar
contract or arrangement of any plan, policy, fund, program or contract or
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arrangement providing for compensation, bonus, profit-sharing, stock option, or
other stock related rights or other forms of incentive or deferred compensation,
vacation benefits, insurance coverage (including any self-insured arrangements),
health or medical benefits, disability benefits, workers' compensation,
supplemental unemployment benefits, severance benefits and postemployment or
retirement benefits (including compensation, pension, health, medical or life
insurance or other benefits) that: (i) is not an Employee Plan: (ii) is entered
into, maintained, administered or contributed to, as the case may be, by Seller
or any of its Affiliates: (iii) covers any employee or former employee of Seller
employed in the United States: and (iv) does not terminate immediately prior to
the Closing.
(5) "BILL OF SALE" means the Bill of Sale to be delivered at the
Closing with respect to those Purchased Assets which constitute personal
property and which are to be transferred at the Closing, substantially in the
form of Exhibit A hereto.
(6) "BUSINESS DAY" shall mean any day other than Saturday, Sunday and
any day which is a legal holiday or a day on which banking institutions in
Boston, Massachusetts are authorized by law or other governmental action to
close.
(7) "BUYER REPRESENTATIVES" means the Buyer's accountants, counsel,
environmental consultants, financial advisors and other authorized
representatives.
(8) "CAPITAL EXPENDITURES" means those capital expenditures which are
identified as capital expenditures on Schedule 1.1(a)(8) hereto.
(9) "CLOSING AMOUNT" means the sum of the amount set forth in clause
(i) of Section 3.1 and the Estimated Adjustment Amount.
(10) "CERCLA" means the Federal Comprehensive Environmental Response,
Compensation and Liability Act.
(11) "CODE" means the Internal Revenue Code of 1986, as amended.
(12) [RESERVED]
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(13) "EASEMENTS" means, with respect to those Purchased Assets which
constitute Real Estate, the reservations of easements to be included in the
deeds of conveyance or by separate instrument with respect to such Real Estate,
substantially as set forth in Schedules 1.1(a)(13) and 5.12 hereto.
(14) "EMISSION REDUCTION CREDITS" means credits, in units that are
established by the environmental regulatory agency with jurisdiction over the
facility that has obtained the credits, resulting from a reduction in the
emissions of air pollutants from an emitting source or facility (including,
without limitation, and to the extent allowable under applicable law, reductions
from shut-downs, control of emissions beyond that required by applicable law,
and fuel switching), that have been certified by an applicable regulatory
authority as complying with the law and regulations governing the establishment
of such credits (including, without limitation, that such emissions reductions
are enforceable, permanent, quantifiable, real and surplus). Emission Reduction
Credits include certified air emissions reductions, as described above,
regardless as to whether the regulatory agency certifying such reductions
designates such certified air emissions reductions by a name other than
"emissions reduction credits".
(15) "EMPLOYEE PLAN" means any "employee benefit plan", as defined in
with Section 3(3) of ERISA, that: (i) is subject to any provision of ERISA; (ii)
is maintained, administered or contributed to by Seller or any of its ERISA
Affiliates; and (iii) covers any employee or former employee of Seller.
(16) "ENCUMBRANCES" means any mortgages, pledges, liens, security
interests, conditional and installment sale agreements, activity and use
limitations, conservation easements, easements, deed restrictions, encumbrances
and charges of any kind.
(17) "ENVIRONMENTAL LAWS" means all federal, state and local laws,
regulations, rules, ordinances, codes, decrees, judgments, directives, or
judicial or administrative orders relating to pollution or protection of the
environment, natural resources or human health and safety, including, without
limitation, laws relating to Releases or threatened Releases of Hazardous
Substances (including, without limitation, ambient air, surface water,
groundwater, land, surface and subsurface strata) or otherwise relating to the
(i) of manufacture, processing, distribution, use, treatment, storage, Release,
transport or handling of Hazardous Substances.
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(18) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
(19) "ERISA AFFILIATE" of any entity means any other entity which,
together with such entity, would be treated as a single employer under Section
414 of the Code.
(20) "ESTIMATED ADJUSTMENT AMOUNT" means the Seller's good faith
reasonable estimate of an Adjustment Amount for the Closing, which estimate
shall be provided to the Buyer no later than two (2) Business Days before the
applicable Closing.
(21) "EUA" means Eastern Utilities Associates. The name "Eastern
Utilities Associates" means the trustee or trustees for the time being (as
trustee or trustees but not personally) under an Agreement and Declaration of
Trust dated April 2, 1928, as amended, which is hereby referred to, and a copy
of which, as amended, has been filed with the Secretary of The Commonwealth of
Massachusetts. Any agreement, obligation, or liability made, entered into, or
incurred by or on behalf of EUA binds only its trust estate, and no and
shareholder, director, trustee, officer, or agent thereof assumes or shall be
held to any liability therefor.
(22) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(23) "FEDERAL POWER ACT" means the Federal Power Act of 1935, as
amended.
(24) "FERC" means the Federal Energy Regulatory Commission.
(25) "FIRPTA AFFIDAVIT" means the Foreign Investment in Real Property
Tax Act Certification and Affidavit substantially in the form of Exhibit B
hereto.
(26) "HAZARDOUS SUBSTANCES" means (a) any petrochemical or petroleum
products, radioactive materials, radon gas, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation and transformers or
other equipment that contain dielectric fluid which may contain levels of
polychiorinated biphenyls; (b) any chemicals, materials or substances defined as
or included in the
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definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"restricted hazardous materials," "extremely hazardous substances," "toxic
substances," "contaminants," or "pollutants" or words of similar meaning and
regulatory effect; or (c) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any applicable Environmental Law.
(27) "HOLDING COMPANY ACT" means the Public Utility Holding Company Act
of 1935, as amended.
(28) "HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
(29) "INCOME TAX" means any federal, state, local or foreign Tax (a)
based upon, measured by or calculated with respect to net income, profits or
receipts (including, without limitation, capital gains Taxes and minimum Taxes)
or (b) based upon, measured by or calculated with respect to multiple bases
(including, without limitation, corporate franchise taxes) if one or more of the
bases on which such Tax may be based, measured by or calculated with respect to,
is described in clause (a), in each case together with any interest, penalties,
or additions to such Tax.
(30) "INDENTURE" means the Brockton Edison Company Indenture of First
Mortgage and Deed of Trust dated as of September 1, 1948, as supplemented and
modified.
(31) "INDEPENDENT ACCOUNTING FIRM" means such independent accounting
firm of national reputation mutually appointed by the Seller and the Buyer.
(32) "INSTRUMENT OF ASSUMPTION" means the Instrument of Assumption
substantially in the form of Exhibit C hereto relating to the assumption by the
Buyer of the liabilities and obligations of the Seller described therein.
(33) "INTERCONNECTION AGREEMENT" means the Interconnection Agreement
substantially in the form of Exhibit D hereto.
(34) "MAINTENANCE EXPENDITURES" means those maintenance expenditures
which are identified as maintenance expenditures on Schedule 1.1(a)(34) hereto.
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(35) "MATERIAL ADVERSE EFFECT" means any change in or effect on the
Purchased Assets after the date of this Agreement that is materially adverse to
the condition (financial or otherwise) of the Purchased Assets, taken as a
whole, and, if applicable, the operation or business of the Purchased Assets,
taken as a whole, other than, in all cases, (i) any change or effect resulting
from changes in the international, national, regional or local wholesale or
retail markets for electric power, (ii) any change or effect resulting from
changes in the international, national, regional or local markets for any fuel
used at the Purchased Assets, (iii) any change or effect resulting from changes
in the North American, national, regional or local electric transmission
systems, and (iv) any materially adverse change in or effect on the Purchased
Assets which is cured (including by the payment of money) by the Seller before
the Termination Date.
(36) "MDTE" means the Massachusetts Department of Telecommunications
and Energy.
(37) "NPDES" means the National Pollutant Discharge Elimination System.
(38) "PERMITTED ENCUMBRANCES" means, where applicable, (i) those
Encumbrances set forth in Schedule 1.1(a)(38); (ii) the Easements; (iii) those
exceptions to title regarding the Purchased Assets listed in Schedule 5.6: (iv)
all exceptions, restrictions, covenants, easements, charges, rights of way and
monetary and non-monetary encumbrances which are matters of record, including,
without limitation, those matters set forth in the Specimen Title Policy, except
for such encumbrances which secure indebtedness; (v) with respect to any date
before the Closing Date, Encumbrances created by the Indenture or any
indebtedness: (vi) Encumbrances incurred in connection with the Seller's
purchase of properties or assets after the date of its Seller Financial
Statement securing all or a portion of the purchase price therefor: (vii)
statutory liens for current taxes or assessments not yet due or delinquent or
the validity of which is being contested in good faith by appropriate
proceedings; (viii) mechanics', carriers', workers', repairers' and other
similar liens arising or incurred in the ordinary course of business relating to
obligations as to which there is no default on the part of the Seller or the
validity of which are being contested in good faith by appropriate proceedings:
(ix) zoning, entitlement, conservation restriction, order of conditions and
other land use and environmental regulations by governmental authorities: and
(x) such other liens, imperfections in or failure of title, charges, easements,
restrictions and encumbrances which do not materially detract from the value of
the Purchased Assets as currently used or
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materially interfere with the present use of the Purchased Assets and do not, in
the aggregate, have a Material Adverse Effect.
(39) "PERSON" means any individual, a partnership, a limited liability
company, a joint venture, a corporation, a trust, an unincorporated organization
and a governmental entity or any department or agency thereof.
(40) "PURCHASED ASSETS" means the assets set forth on Schedule
1.1(a)(40) hereto.
(41) "RELEASE" means release, spill, leak, discharge, dispose of, pump,
pour, emit, empty, inject, leach, dump or allow to escape into or through the
environment.
(42) "RETAIL COMPANIES" means, as applicable, each, any or all of
Blackstone Valley Electric Company, Eastern Edison Company and Newport Electric
Corporation.
(43) "RIPUC" means the Rhode Island Public Utilities Commission.
(44) "SCHEDULED MAINTENANCE AND CAPITAL EXPENDITURES AMOUNT" means the
aggregate amount, if any, of all funds actually expended on, or for which
liabilities were accrued with respect to, Maintenance Expenditures and Capital
Expenditures by the Seller during the period beginning on the date hereof and
ending on the Closing Date.
(45) "SEC" means the Securities and Exchange Commission.
(46) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(47) "SELLER'S AGREEMENTS" means those agreements listed on Schedule
5.14(a), the Collective Bargaining Agreement and the Memorandum of
Understanding.
(48) "SETTLEMENT AGREEMENTS" means any agreement or agreements that
have been approved by the MDTE in Docket No. 96-24, RIPUC in Docket Nos. 2514
and 2592 and by the FERC in Docket Nos. ER97-2800-000. ER97-3127-000,
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ER97-2338-000 and ER97-3200-000, together with all conditions, terms or
modifications imposed by those agencies.
(49) "SPECIMEN TITLE POLICY" means for those Purchased Assets
constituting Real Estate, the commitments for title insurance issued by Lawyers
Title Insurance Corporation, a copy of which is attached at Scheduled 5.12
hereto.
(50) "STANDARD OFFER SERVICE" means the electric service, if any,
required to be provided by one or more of the Retail Companies to its retail
customers who do not elect to purchase electricity from an alternative supplier
in the market.
(51) "SUBSIDIARY" when used in reference to any other Person means any
entity of which outstanding securities having ordinary voting power to elect a
majority of the Board of Directors or other Persons performing similar functions
of such entity are owned directly or indirectly by such other Person.
(52) "TAXES" means all taxes, charges, fees, levies, penalties or other
assessments imposed by any United States federal, state or local or foreign
taxing authority, including, but not limited to, income, excise, property,
sales, transfer, franchise, payroll, withholding, social security or other
taxes, including any interest, penalties or additions attributable thereto.
(53) "TAX RETURN" means any return, report, information return or other
document (including any related or supporting information) required to be
supplied to any authority with respect to Taxes.
(54) "TRANSFERABLE PERMITS" means those Permits and Environmental
Permits set forth in Schedule 1.1(a)(54).
(55) "WARN ACT" means the Federal Worker Adjustment Retraining and
Notification Act of 1988.
(56) "WHOLESALE STANDARD OFFER SERVICE AGREEMENT" means the Wholesale
Standard Offer Service Agreement between the Retail Companies and the Buyer,
substantially in the form of Exhibit E hereto, relating to Standard Office
Service.
(b) Each of the following terms has the meaning specified in the
Section or Schedule set forth opposite such term:
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Term Section/Schedule
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Adjustment Amount Schedule 3.2
Adjustment Assets 3.2(a)
Adjustment Statement 3.2(a)
Assumed Liabilities 2.3
Benefit Plans 5.11(a)
Buyer Recitals
Buyer Benefit Plans 7.10
Buyer Employee 7.10
Buyer Required Regulatory Approvals 6.3(b)
Buyer Window 7.10
CB Employees 7.10
CDPUC Schedule 5.3(b)
Closing 4.1
Closing Amount 3.1
Closing Conditions 4.1
Closing Date 4.1
Coles River Water Line 5.12
Collective Bargaining Agreement 7.10
Direct Claim 9.2(c)
Employees 7.10
Environmental Permits 5.9(a)
Excluded Assets 2.2
Excluded Liabilities 2.4
Final Order 8.1(c)
Indemnifiable Loss 9.1(a)
Indemnifying Party 9.1(d)
Indemnitee 9.1(c)
Independent Appraiser 3.3
Inventory Adjustment Amount Schedule 3.2
Memorandum of Understanding 7.10
MePUC Schedule 5.3(b)
Montaup Employees 7.10
Non-Union Buyer Employees 7.10
NRC Schedule 5.3(b)
Permitted Policy Exceptions 8.2(f)
Permits 5.16(a)
Prior Welfare Plans 7.10
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Purchase Price 3.1
Real Estate 5.12
Remediaton Adjustment Amount Schedule 3.2
Replacement Welfare Plans 7.10
Seller Recitals
Seller Financial Statements 5.4
Seller Required Regulatory Approvals 5.3(b)
Somerset Station Schedule 1.1(a)(40)
Termination Date 10.1(b)
Third Party Claim 9.2(a)
UWUA 7.10
ARTICLE II
PURCHASE AND SALE
2.1 THE SALE. Upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, at the Closing the Seller will sell,
assign, convey, transfer and deliver to the Buyer, and the Buyer will purchase
and acquire from the Seller, free and clear of all Encumbrances (except for
Permitted Encumbrances), all of the Seller's right, title -and interest in, to
and under the Purchased Assets.
2.2 EXCLUDED ASSETS. Notwithstanding any provision herein to the
contrary, the Purchased Assets shall not include the rights and assets,
described or referred to in Schedule 2.2 (herein referred to as the "EXCLUDED
ASSETS").
2.3 ASSUMED LIABILITIES. On the Closing Date, the Buyer shall assume and
agree to discharge, pursuant to the Instrument of Assumption, and to the fullest
extent permitted by law, all of the liabilities and obligations of the Seller,
direct or indirect, known or unknown, absolute or contingent which principally
relate to the Purchased Assets, including, without limitation, such liabilities
and obligations described or referred to in Schedule 2.3. All of such
liabilities and obligations to be assumed by the Buyer under this Section 2.3
(excluding any Excluded Liabilities) are referred to herein as the "ASSUMED
LIABILITIES." It is understood and agreed that nothing in this Section 2.3 shall
constitute a waiver or release of any claims arising out of the contractual
relationships between the Seller and the Buyer.
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2.4 EXCLUDED LIABILITIES. The Buyer shall not assume or be obligated to
pay, perform or otherwise discharge the liabilities or obligations set forth on
Schedule 2.4. All such liabilities and obligations not being assumed pursuant to
this Section 2.4 are herein called the "EXCLUDED LIABILITIES."
ARTICLE III
PURCHASE PRICE
3.1 PURCHASE PRICE. The purchase price for the Purchased Assets shall be
the sum of (i) $54,750,000 and (ii) the Adjustment Amount (the "PURCHASE
PRICE").
3.2 PURCHASE PRICE ADJUSTMENT. (a) Within sixty (60) days after the
Closing, the Seller shall prepare and deliver to the Buyer a statement (the
"ADJUSTMENT STATEMENT") with respect to any adjustment to the Purchase Price in
respect of the Purchased Assets and other items set forth on Schedule 3.2 (the
"ADJUSTMENT ASSETS"). The Adjustment Statement shall be prepared using the same
generally accepted accounting principles, policies and methods -as the Seller
has historically used in connection with the calculation of the value of the
Adjustment Assets reflected on such Adjustment Statement. The Buyer agrees to
cooperate with the Seller in connection with the preparation of the Adjustment
Statement and related information, and shall provide to the Seller such hooks,
records and information as may be reasonably requested from time to time.
(b) The Buyer may dispute all or a part of the Adjustment Amount:
provided, however, that the Buyer shall notify the Seller in writing of the
disputed amount, and the basis of such dispute, within thirty (30) days of the
Buyer's receipt of the Adjustment Statement. In the event of a dispute with
respect to any part of the Adjustment Amount, the Buyer and the Seller shall
attempt to reconcile their differences and any resolution by them as to any
disputed amounts shall be final, binding and conclusive on the parties. If the
Buyer and the Seller are unable to reach a resolution of such differences within
thirty (30) days of receipt of the Buyer's written notice of dispute to the
Seller, the Buyer and the Seller shall submit the amounts remaining in dispute
for determination and resolution to the Independent Accounting Firm, which shall
be instructed to determine and report to the parties, within thirty (30) days
after such submission, upon such remaining disputed amounts, and such report
shall be final, binding and conclusive on the parties hereto
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with respect to the amounts disputed. The fees and disbursements of the
Independent Accounting Firm shall be allocated between the Buyer and the Seller
so that the Buyer's share of such fees and disbursements shall be in the same
proportion that the aggregate amount of such remaining disputed amounts so
submitted by the Buyer to the Independent Accounting Firm that is unsuccessfully
disputed by the Buyer (as finally determined by the Independent Accounting Firm)
bears to the total amount of such remaining disputed amounts so submitted by the
Buyer to the Independent Accounting Firm.
(c) Within thirty (30) days after the Buyer's receipt of the
Adjustment Statement the Buyer shall pay all undisputed amounts or if there is a
dispute with respect to any amount on such Adjustment Statement within five (5)
Business Days after the final determination of any amounts on the Adjustment
Statement, the Buyer shall pay to the Seller an amount equal to the disputed
Adjustment Amount as finally determined to be payable with respect to the
Adjustment Statement. All Adjustment Statement payments shall be less the
Estimated Adjustment Amount: provided, however, that if such amount shall be
less than zero then the Seller will pay to the Buyer the amount by which such
amount is less than zero. Any amount paid under this Section 3.2(c) shall be
paid with interest for the period commencing on the Closing Date through the
date of payment, calculated at the prime rate of BankBoston in effect on the
Closing Date, and in cash by federal or other wire transfer of immediately
available funds.
3.3 ALLOCATION OF PURCHASE PRICE. The Buyer and the Seller shall use
their good faith efforts to agree to allocate the Purchase Price to the
Purchased Assets within forty-five (45) days of the date of this Agreement The
Buyer and the Seller may jointly agree to obtain the services of an independent
engineer or appraiser (the "INDEPENDENT APPRAISER") to assist the parties in
determining the fair value of the Purchased Assets for purposes of such
allocation. If such an appraisal is made, both the Buyer and the Seller agree to
accept the Independent Appraiser's determination of the fair value of the
Purchased Assets. The parties shall jointly select the Independent Appraiser.
The cost of the appraisal shall be borne equally by the Buyer and the Seller.
Each of the Buyer and the Seller agrees to file Internal Revenue Service Form
8594, and all federal, state, local and foreign Tax Returns, in accordance with
such agreed allocation. Each of the Buyer and the Seller shall report the
transactions contemplated by the Agreement for federal Income Tax and all other
tax purposes in a manner consistent with the allocation determined pursuant to
this Section 3.3. Each of the Buyer and the Seller agrees to provide the other
promptly with any other information required to complete Form 8594. Each of the
Buyer and the Seller shall
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notify and provide the other with reasonable assistance in the event of an
examination, audit or other proceeding regarding the agreed upon allocation of
the Purchase Price.
3.4 PRORATION. The Buyer and the Seller agree that all of the items
normally prorated, including those listed on Schedule 3.4 relating to the
Purchased Assets, will be prorated as of the Closing Date, with the Seller
liable to the extent such items relate to any time period through the Closing
Date, and the Buyer liable to the extent such items relate to periods subsequent
to the Closing Date.
In connection with any proration under this Section 3.4, in the event
that actual figures are not available at the Closing Date, the proration shall
be based upon the actual figures for the preceding year (or appropriate period)
for which such figures are available and such amounts shall be reprorated upon
request of either the Seller, on the one hand, or the Buyer, on the other hand,
made within sixty (60) days of the date that the actual amounts become
available. The Seller and the Buyer agree to furnish each other with such
documents and other records as may be reasonably requested in order to confirm
all adjustment and proration calculations made pursuant to this Section 3.4.
ARTICLE IV
THE CLOSING
4.1 TIME AND PLACE OF CLOSING. Upon the terms and subject to the
satisfaction of the conditions contained in Article VIII of this Agreement (the
"CLOSING CONDITIONS"), the closing of the sale of the Purchased Assets
contemplated by this Agreement (the "CLOSING") will take place at the offices of
McDermott, Will & Emery, 75 State Street, Suite 1700, Boston, MA 02109-1807 at
10:00 A.M. (local time) on such date as the parties may agree, which date is as
soon as practicable, but no later than fifteen (15) Business Days, following the
date on which all of the Closing Conditions have been satisfied or waived; or at
such other place or time as the parties may agree; provided, however, that the
Closing Date shall be deemed to occur at midnight on the last day of the month
in which the Closing occurs. The date and time at which the Closing actually
occurs is hereinafter referred to as the "CLOSING DATE."
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4.2 PAYMENT OF PURCHASE PRICE. Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, in consideration of
the aforesaid sale, assignment, conveyance, transfer and delivery of the
Purchased Assets, the Buyer will pay or cause to be paid to the Seller the
Purchase Price.
4.3 DELIVERIES BY SELLER. At the Closing, the Seller will deliver to the
Buyer the following items:
(a) A Bill of Sale, duly executed by the Seller for the personal
property included in the Purchased Assets;
(b) All consents, waivers or approvals with respect to the Purchased
Assets or the consummation of the transactions connected to the sale of the
Purchased Assets, as the case may be, contemplated by this Agreement, to the
extent specifically required hereunder;
(c) Each Ancillary Agreement associated with the sale of the Purchased
Assets, duly executed by the Seller;
(d) An opinion of counsel and certificate (as contemplated by Section
8.2) with respect to the Purchased Assets;
(e) One or more deeds for conveyance of the Real Estate (substantially
as set forth in Schedule 5.12 hereto) constituting part of the Purchased Assets
to the Buyer, reserving the Easements (if not contained in a separate document),
with quitclaim covenants but no other covenants or warranty of title, duly
executed and acknowledged by the Seller and in recordable form;
(f) A FIRPTA Affidavit executed by the Seller;
(g) All such other instruments of assignment or conveyance as shall,
in the reasonable opinion of the Buyer and its counsel, be necessary to transfer
to the Buyer the Purchased Assets in accordance with this Agreement and where
necessary or desirable, in recordable form; and
(h) Such other agreements, documents, instruments and writings as are
required to be delivered by the Seller at or prior to the Closing Date pursuant
to this Agreement or otherwise required in connection herewith.
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4.4 DELIVERIES BY THE BUYER. At the Closing, the Buyer will deliver to
the Seller the following items:
(a) Closing Amount by wire transfer of immediately available funds or
such other means as are agreed upon by the Seller and the Buyer:
(b) Each Ancillary Agreement associated with the sale of the Purchased
Assets, duly executed by the Buyer;
(c) An opinion of counsel and certificate (as contemplated by Section
8.3) with respect to the Purchased Assets;
(d) The Instrument of Assumption with respect to the Assumed
Liabilities, duly executed by the Buyer;
(e) All such other instruments of assumption as shall, in the
reasonable opinion of the Seller and its counsel, be necessary for the Buyer to
assume the Assumed Liabilities in accordance with this Agreement; and
(f) Such other agreements, documents, instruments and writings as are
required to be delivered by the Buyer at or prior to the Closing Date pursuant
to this Agreement, in connection with the conveyance of any of the Real Estate
(including the delineation of the rights of the Seller and the Buyer therein, to
the satisfaction of the Seller in its sole discretion) or otherwise required in
connection herewith.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows (all such
representations and warranties, except those regarding the Seller, being made to
the best knowledge of the Seller):
5.1 ORGANIZATION; QUALIFICATION. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Massachusetts and has all requisite corporate power and authority to own, lease,
and operate its properties and to carry on its business as is now being
conducted. The
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Seller is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification necessary, except in each case in those jurisdictions
where the failure to be so duly qualified or licensed and in good standing would
not have a Material Adverse Effect.
5.2 AUTHORITY RELATIVE TO THIS AGREEMENT. The Seller has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of the Seller and no other
corporate proceedings on the part of the Seller are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Seller, and assuming
that this Agreement constitutes a valid and binding agreement of the Buyer,
subject to the receipt of the Seller Required Regulatory Approvals and the Buyer
Required Regulatory Approvals, constitutes a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, except that
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to enforcement of
creditors' rights generally or general principles of equity.
5.3 CONSENTS AND APPROVALS: NO VIOLATION. (a) Except for such notices or
approvals set forth on Schedule 5.3(a), and other than obtaining the Seller
Required Regulatory Approvals and the Buyer Required Regulatory Approvals,
neither the execution and delivery of this Agreement by the Seller nor the sale
by the Seller of the Purchased Assets pursuant to this Agreement will (i)
conflict with or result in any breach of any provision of the Certificate of
Incorporation or Bylaws (or other similar governing documents) of the Seller,
(ii) require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, except (x) where
the failure to obtain such consent, approval, authorization or permit, or to
make such filing or notification, would not have a Material Adverse Effect or
(y) for those requirements which become applicable to the Seller as a result of
the specific regulatory status of the Buyer (or any of its Affiliates) or as a
result of any other facts that specifically relate to the business or activities
in which the Buyer (or any of its Affiliates) is or proposes to be engaged:
(iii) result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, agreement or other instrument
or obligation to which
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the Seller is a party or by which the Seller, or any of the Purchased Assets may
be bound, except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been obtained or
which, in the aggregate would not have a Material Adverse Effect or (iv) violate
any order writ injunction decree statute rule or regulation applicable to the
Seller or any of its assets which violation would have a Material Adverse
Effect.
(b) Except for such notices or approvals set forth on Schedule 5.3(b)
(the "SELLER REQUIRED REGULATORY APPROVALS"), no declaration, filing or
registration with, or notice to, or authorization, consent or approval of any
governmental or regulatory body or authority is necessary for the consummation
by the Seller of the transactions contemplated hereby, other than such
declarations, filings, registrations, notices, authorizations, consents or
approvals which, if not obtained or made, will not, in the aggregate, have a
Material Adverse Effect.
5.4 UNDISCLOSED LIABILITIES. Except as set forth in Schedule 5.4, the
Seller has no liability or obligation relating to the business or operations of
the Purchased Assets, secured or unsecured (whether absolute, accrued,
contingent or otherwise, and whether due or to become due), of a nature required
by generally accepted accounting principles to be reflected in a corporate
balance sheet or disclosed in the notes thereto, which are not accrued or
reserved against in the financial statements of the Seller as of December 31,
1997 (which financial statements (collectively, the "SELLER FINANCIAL
STATEMENTS") have been made available to the Buyer) or disclosed in the notes
thereto in accordance with generally accepted accounting principles, except
those which either were incurred in the ordinary course of business, whether
before or after December 31, 1997, or those which in the aggregate are not
material to the business or operations of the Purchased Assets.
5.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except (i) as set forth in
Schedule 5.5, or in the reports, schedules, registration statements and
definitive proxy statements filed by the Seller or EUA with the SEC and (ii) as
otherwise contemplated by this Agreement, since December 31, 1997, there has not
been: (a) any Material Adverse Effect with respect to the Purchased Assets; (b)
any damage to, destruction of, or casualty loss with respect to, the Purchased
Assets, whether covered by insurance or not, which had a Material Adverse
Effect; (c) any entry into any agreement, commitment or transaction (including,
without limitation, any borrowing, capital expenditure or capital financing) by
the Seller, which is material to the business or operations of the Purchased
Assets, except agreements, commitments or transactions in the ordinary course of
business or as contemplated herein; or
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(d) any change by the Seller, with respect to the Purchased Assets, in
accounting methods, principles or practices except as required or permitted by
generally accepted accounting principles.
5.6 TITLE AND RELATED MATTERS. Except as set forth in Schedules 5.6 and
5.12 and except for Permitted Encumbrances, the Seller has insurable title as
specified in the Specimen Title Policy to each of the Purchased Assets
constituting Real Estate. Except as set forth in Schedule 5.6 and except for
Permitted Encumbrances, the Seller has valid title to the other Purchased Assets
which it purports to own that are reflected in the Seller Financial Statements
(other than those which have been disposed of since the date thereof in the
ordinary course of business), free and clear of all Encumbrances.
5.7 LEASES. Schedule 5.7 lists, as of the date of this Agreement, all
real property leases, if any, under which the Seller is a lessee or lessor and
which are to be transferred and assigned to the Buyer on the Closing Date.
Except as set forth in Schedule 5.7, to the Seller's knowledge, all such leases
are valid, binding and enforceable in accordance with their terms, and are in
full force and effect; there are no existing material defaults by the Seller
thereunder; and no event has occurred which (whether with or without notice,
lapse of time or both) would constitute a material default by a Seller
thereunder.
5.8 INSURANCE. Except as set forth in Schedule 5.8, all material policies
of fire, liability, workmen's compensation and other forms of insurance owned or
held by the Seller and insuring the Purchased Assets are in full force and
effect, all premiums with respect thereto covering all periods up to and
including the date as of which this representation is being made have been paid
(other than retroactive premiums which may be payable with respect-to
comprehensive general liability and workmen's compensation insurance policies),
and no notice of cancellation or termination has been received with respect to
any such policy which was not replaced on substantially similar terms prior to
the date of such cancellation. Except as described in Schedule 5.8, as of the
date of this Agreement, the Seller has not been refused any insurance with
respect to the Purchased Assets nor has its coverage been limited by any
insurance carrier to which it has applied for any such insurance or with which
it has carried insurance during the last five (5) years.
5.9 ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 5.9 or in any
public filing by the Seller or EUA pursuant to the Securities Act or the
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Exchange Act or with any federal, state or local governmental authority having
jurisdiction in the matter:
(a) The Seller holds, and is in substantial compliance with, all
material permits, licenses and governmental authorizations ("ENVIRONMENTAL
PERMITS") required for the Seller to conduct the business and operations of the
Purchased Assets under applicable Environmental Laws, and the Seller is
otherwise in compliance with applicable Environmental Laws with respect to the
business and operations of the Purchased Assets except for such failures to hold
or comply with required Environmental Permits, or such failures to be in
compliance with applicable Environmental Laws, which, in the aggregate, are not
reasonably likely to have a Material Adverse Effect with respect to the
Purchased Assets;
(b) The Seller has not received any written request for information,
or been notified that it is a potentially responsible party, under CERCLA or any
similar State law with respect to any Real Estate on which the Purchased Assets
are located which has not be resolved or otherwise remedied; and
(c) The Seller has not entered into or agreed to any consent decree or
order, and is not subject to any judgment, decree, or judicial order relating to
compliance with any Environmental Law or to investigation or cleanup of
Hazardous Substances under any Environmental Law which has not been resolved or
otherwise remedied, in each case affecting or relating to the Purchased Assets.
The representations and warranties made in this Section 5.9 are the exclusive
representations and warranties of the Seller relating to environmental matters.
5.10 LABOR MATTERS. The Seller has previously delivered to the Buyer
copies of all collective bargaining agreements, including the Collective
Bargaining Agreement and the Memorandum of Understanding, to which the Seller is
a party and which relate to the business or operations of the Purchased Assets.
Except to the extent set forth in Schedule 5.10 and except for such matters as
will not have a Material Adverse Effect, to the Seller's knowledge: (a) the
Seller is in compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment and wages and hours;
(b) the Seller has not received notice of any unfair labor practice complaint
against the Seller pending before the National Labor Relations Board; (c) there
is no labor strike, slowdown or stoppage actually pending or threatened against
or affecting the Seller; (d) the Seller has not received notice that any
representation petition respecting the employees of the Seller
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has been filed with the National Labor Relations Board: (e) no arbitration
proceeding arising out of or under collective bargaining agreements is pending
against the Seller; and (0 the Seller has not experienced any primary work
stoppage since 1973.
5.11 ERISA; BENEFIT PLANS. (a) Schedule 5.11(a) lists all Employee Plans
and Benefit Arrangements sponsored, maintained or with respect to which
contributions are made by the Seller with respect to individuals employed at the
Purchased Assets (collectively, "BENEFIT PLANS"). Accurate and complete copies
of all Benefit Plans, and all summary plan descriptions, actuarial reports and
financial statements, as applicable, with respect to the Benefit Plans within
the last year have been made available the Buyer.
(b) The Seller and its ERISA Affiliates have fulfilled their
respective obligations under the minimum funding requirements of Section 302 of
ERISA, and Section 412 of the Code, with respect to each Benefit Plan which is
an "employee pension benefit plan" (as defined in Section 3(2) of ERISA) and
each such plan is in compliance with the-presently applicable provisions of
ERISA and the Code, except where failure to so comply would not have a Material
Adverse Effect. The Seller has not incurred any liability under Section 4062(b)
of ERISA to the Pension Benefit Guaranty Corporation in connection with any
Benefit Plan which is subject to Title IV of ERISA.
(c) The Internal Revenue Service has issued a letter to each Benefit
Plan which is intended to qualify for favorable tax treatment under Section
401(a) of the Code that such plan (and its related trust) is exempt from United
States Federal Income Tax under Sections 40 1(a) and 50 1(a) of the Code, and,
to the Seller's knowledge, there has been no occurrence since the date of any
such determination letter which has adversely affected such qualification.
(d) Neither the Seller nor any ERISA Affiliate has contributed to a
"multiemployer plan" (as defined in Section 400 1(a)(3) of ERISA) at any time.
(e) Neither the Seller nor any ERISA Affiliate has engaged in a
transaction within the meaning of Section 4069 or Section 42 12(c) of ERISA.
(f) With respect to each "group health plan" within the meaning of
Section 5000(b)(1) of the Code, the Seller has complied in good faith with the
notice and continuation requirements of Section 4980B of the Code and the
regulations thereunder.
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5.12 REAL ESTATE. Schedule 5.12 contains a description of any real
property owned by the Seller and included in the Purchased Assets (the "REAL
ESTATE"). Schedule 5.12 also describes any indebtedness secured by a mortgage or
any other Encumbrance on the Real Estate and sets forth the Specimen Title
Policy. Complete and correct copies of any current surveys in the Seller's
possession or any commitments for title insurance currently in force and in the
possession of the Seller with respect to such real property have heretofore been
delivered by the Seller to the Buyer. The Coles River Water Line described in
paragraph 1 of Schedule 5.6 (the "COLES RIVER WATER LINE") is located entirely
in public rights of way of the Towns of Somerset and Swansea and under a state
highway owned and maintained by the State of Massachusetts, except for that part
of the Coles River Water Line located on the Seller's property over which an
easement will be granted to the Buyer at Closing.
5.13 CONDEMNATION. Except as set forth in Schedules 5.13 and 5.6, neither
the whole nor any part of the Real Estate or any other real property or rights
leased, used or occupied by the Seller in connection with the ownership or
operation of the Purchased Assets is subject to any pending suit for
condemnation or other taking by any public authority, and, to the knowledge of
the Seller, no such condemnation or other taking has been threatened.
5.14 CERTAIN CONTRACTS AND ARRANGEMENTS. (a) Except (i) as listed in
Schedule 5.14(a) or any other Schedule to this Agreement, (ii) for contracts,
agreements, personal property leases, commitments, understandings or instruments
which will expire prior to the Closing Date and (iii) for agreements with
suppliers entered into in the ordinary course of business in accordance with
good utility practice, the Seller is not a party to any written contract,
agreement, personal property lease, commitment, understanding or instrument
which is material to the business or operations of the Purchased Assets.
(b) Except as set forth in Schedule 5.14(b) each of the material
Seller's Agreement (i) constitutes a valid and binding obligation of the Seller
and to the best knowledge of the Seller constitutes a valid and binding
obligation of the other parties thereto (ii) is in full force and effect and
(iii) may be transferred to the Buyer pursuant to this Agreement and will
continue in full force and effect thereafter, in each case without breaching the
terms thereof or resulting in the forfeiture or impairment of any rights
thereunder.
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(c) Except as set forth in Schedule 5.14(c), there is not, under any
of the Seller's Agreements, any default or event which, with notice or lapse of
time or both, would constitute a default on the part of the Seller, except such
events of default and other events as to which requisite waivers or consents
have been obtained or which would not, in the aggregate, have a Material Adverse
Effect.
5.15 LEGAL PROCEEDINGS, ETC. Except as set forth in Schedule 5.15, there
are no claims, actions, proceedings or investigations pending or, to the
Seller's knowledge, threatened against or relating to the Seller before any
court, governmental or regulatory authority or body acting in an adjudicative
capacity, which, if adversely determined, would have a Material Adverse Effect.
Except as set forth in Schedule 5.15, the Seller is not subject to any
outstanding judgment, rule, order, writ, injunction or decree of any court,
governmental or regulatory authority which has a Material Adverse Effect.
5.16 PERMITS. (a) The Seller has all material permits, licenses,
franchises and other governmental authorizations, consents and approvals, other
than with respect to Environmental Laws (collectively, "PERMITS") necessary to
operate the business of the Purchased Assets as presently conducted, except
where the failure to have such Permits would not have a Material Adverse Effect.
Except as set forth in Schedule 5.16(a), the Seller has not received any written
notification that it is in violation of any of such Permits, or any law,
statute, order, rule, regulation, ordinance or judgment of any governmental or
regulatory body or authority applicable to it in the operation of the Purchased
Assets, except for notifications of violations which would not, in the
aggregate, have a Material Adverse Effect. The Seller is in compliance with all
Permits, laws, statutes, orders, rules, regulations, ordinances, or judgments of
any governmental or regulatory body or authority applicable to it in the
operation of the Purchased Assets, except for violations which, in the
aggregate, do not have a Material Adverse Effect.
(b) Schedule 5.16(b) sets forth all material Permits and Environmental
Permits other than Transferable Permits.
5.17 REGULATION AS A UTILITY. The Seller is a public utility company
within the meaning of the Holding Company Act. Except as set forth on Schedule
5.17, the Seller is not subject to regulation as a public utility or public
service company (or similar designation) by the United States, any state of the
United States, any foreign country or any municipality or any political
subdivision of the foregoing.
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5.18 TAXES. (i) All Tax Returns required to be filed other than those Tax
Returns the failure of which to file would not have a Material Adverse Effect
have been filed, and (ii) all material Taxes shown to be due on such Tax Returns
have been paid in full. Except as set forth in Schedule 5.18, no notice of
deficiency or assessment has been received from any taxing authority with
respect to liabilities for Taxes of such Seller in respect of the Purchased
Assets, which have not been fully paid or finally settled, and any such
deficiency shown in such Schedule 5.18 is being contested in good faith through
appropriate proceedings. Except as set forth in Schedule 5.18, there are no
outstanding agreements or waivers extending the applicable statutory periods of
limitation for Taxes associated with the Power Plants for any period.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS
ARTICLE V, THE PURCHASED ASSETS ARE BEING SOLD AND TRANSFERRED "AS IS, WHERE
IS," AND THE SELLER IS NOT MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES,
WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING SUCH PURCHASED
ASSETS, INCLUDING, IN PARTICULAR, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
6.1 ORGANIZATION. The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as is now being conducted. The Buyer has heretofore
delivered to the Seller complete and correct copies of its Charter and Bylaws
(or other similar governing documents), as currently in effect.
6.2 AUTHORITY RELATIVE TO THIS AGREEMENT. The Buyer has full power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the
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consummation of the transactions contemplated hereby have been duly and
validly authorized by the Buyer and no other proceedings on the part of the
Buyer are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Buyer, and assuming that this Agreement
constitutes a valid and binding agreement of the Seller, subject to the receipt
of the Buyer Required Regulatory Approvals and the Seller Required Regulatory
Approvals, constitutes a valid and binding agreement of the Buyer, enforceable
against the Buyer in accordance with its terms, except that such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium or other similar
laws affecting or relating to enforcement of creditors' rights generally or
general principles of equity.
6.3 CONSENTS AND APPROVALS; NO VIOLATION. (a) Except as set forth in
Schedule 6.3, and other than obtaining the Buyer Required Regulatory Approvals
and the Seller Required Regulatory Approvals, neither the execution and delivery
of this Agreement by the Buyer nor the purchase by the Buyer of the Purchased
Assets pursuant to this Agreement will (i) conflict with or result in any breach
of any provision of the Charter and Bylaws (or other similar governing
documents) of the Buyer, (ii) require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, (iii) result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, agreement, lease or other instrument or
obligation to which the Buyer or any of its subsidiaries is a party or by which
any of their respective assets may be bound, except for such defaults (or rights
of termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained.
(b) Except as set forth in Schedule 6.3 and the filings by the Buyer
and the Seller required by the HSR Act (such filings and approvals are
collectively referred to as the "BUYER REQUIRED REGULATORY APPROVALS"), no
declaration, filing or registration with, or notice to, or authorization,
consent or approval of any governmental or regulatory body or authority is
necessary for the consummation by the Buyer of the transactions contemplated
hereby.
6.4 REGULATION AS A UTILITY. Except as set forth in Schedule 6.4, the
Buyer is not subject to regulation as a public utility or public service company
(or similar designation) by the United States, any State of the United States,
any foreign country or any municipality or any political subdivision of the
foregoing.
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6.5 AVAILABILITY OF FUNDS. The Buyer has sufficient funds available to it
or has received binding written commitments from responsible financial
institutions to provide sufficient funds (which commitments have been made
available to the Seller) on the Closing Date to pay the Purchase Price.
ARTICLE VII
COVENANTS OF THE PARTIES
7.1 CONDUCT OF BUSINESS OF THE COMPANY. (a) Except as described in
Schedule 7.1, during the period from the date of this Agreement to the Closing
Date, the Seller will operate the Purchased Assets according to its ordinary and
usual course of business consistent with good industry practice. Without
limiting the generality of the foregoing, and, except as contemplated in this
Agreement or as described in Schedule 7. 1. prior to the Closing Date, without
the prior written consent of the Buyer, the Seller will not with respect to the
Purchased Assets:
(i) (x) create, incur or assume any material amount of indebtedness
for money borrowed (including obligations in respect of capital leases), other
than in the ordinary course of business and except for Permitted Encumbrances
and indebtedness which does not create any Encumbrance on the Purchased Assets:
or (y) assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any other
Person except in the ordinary course of business;
(ii) make any material change in the levels of fuel inventory and
materials and supplies inventory customarily maintained by the Seller with
respect to the Purchased Assets, except for such changes which are consistent
with good industry practice;
(iii) sell, lease (as lessor), transfer or otherwise dispose of, any of
the Purchased Assets, other than assets used, consumed or replaced in the
ordinary course of business consistent with good industry practice, and not
mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of
the Purchased Assets, other than Permitted Encumbrances;
(iv) enter into or amend any real or personal property Tax agreement,
treaty or settlement affecting or relating to the Power Plants;
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(v) enter into any power sales commitment that extends beyond December
31, 1998 or such other date as the parties mutually agree to be the date on
which the Closing is expected to occur; or
(vi) enter into any written or oral contract, agreement, commitment or
arrangement with respect to any of the transactions set forth in the foregoing
paragraphs (i) through (v).
(b) Notwithstanding anything in Section 7.1(a) to the contrary,
the Seller may, in its sole discretion, make (i) Scheduled Maintenance
Expenditures and Capital Expenditures and (ii) such other maintenance and
capital expenditures as the Seller deems necessary.
(c) During the period from the date of this Agreement to the
Closing Date, the Seller will not amend any of the Seller's Agreements other
than in the ordinary and usual course of business or with the Buyer's prior
written consent.
7.2 ACCESS TO INFORMATION. (a) Between the date of this Agreement and the
Closing Date, the Seller will, during ordinary business hours and upon
reasonable notice (i) give the Buyer and the Buyer Representatives reasonable
access to all books, records, plants, offices and other facilities and
properties constituting the Purchased Assets to which the Buyer is permitted
access by law: (ii) permit the Buyer to make such reasonable inspections thereof
as the Buyer may reasonably request: (iii) furnish the Buyer, at the Buyer's
expense, with such financial and operating data and other information in the
Seller's possession with respect to the Purchased Assets as the Buyer may from
time to time reasonably request: (iv) furnish the Buyer, at the Buyer's expense,
a copy of each material report, schedule or other document filed or received by
them with respect to the Purchased Assets with the SEC, MDTE, CDPUC, RIPUC or
FERC: provided, however, that (A) any such investigation shall be conducted in
such a manner as not to interfere unreasonably with the operation of the
Purchased Assets, (B) the Seller shall not be required to take any action which
would constitute a waiver of the attorney-client privilege and (C) the Seller
need not supply the Buyer with any information which the Seller is under a legal
obligation not to supply. Notwithstanding anything in this Section 7.2 to the
contrary, (i) the Seller will only furnish or provide such access to personnel
and medical records, computer or hard copy, as is required by law, and (ii) the
Buyer shall not have the right to perform or conduct any environmental sampling
or testing at, in, on, or underneath the Purchased Assets.
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(b) For a period of ten (10) years after the Closing Date, the Seller
and its representatives shall have reasonable access to all of the books and
records of the Purchased Assets transferred to the Buyer hereunder to the extent
that such access may reasonably be required by the Seller in connection with
matters relating to or affected by the operation of the Purchased Assets prior
to the Closing Date. Such access shall be afforded by the Buyer upon receipt of
reasonable advance notice and during normal business hours. The Seller shall be
solely responsible for any costs or expenses incurred by them pursuant to this
Section 7.2(b). If the Buyer shall desire to dispose of any such books and
records prior to the expiration of such ten-year period, the Buyer shall, prior
to such disposition, give the Seller a reasonable opportunity at the Seller's
expense, to segregate and remove such books and records as the Seller may
select.
7.3 EXPENSES. Except to the extent specifically provided herein, whether
or not the transactions contemplated hereby are consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne by the party incurring such costs and
expenses.
7.4 FURTHER ASSURANCES. (a) Subject to the terms and conditions of this
Agreement, each of the parties hereto will use its best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the sale of the Purchased Assets pursuant to this
Agreement. Notwithstanding anything in the previous sentence to the contrary,
the Seller and the Buyer shall use their commercially reasonable efforts to
obtain all Permits and Environmental Permits necessary for the Buyer to operate
the Purchased Assets. From time to time after the date hereof, without further
consideration, the Seller will, at its own expense, execute and deliver such
documents to the Buyer as the Buyer may reasonably request in order to more
effectively vest in the Buyer the Seller's title to the Purchased Assets. From
time to time after the date hereof, the Buyer will, at its own expense, execute
and deliver such documents to the Seller as the Seller may reasonably request in
order to more effectively -consummate the sale of the Purchased Assets pursuant
to this Agreement.
(b) In the event that any Purchased Asset shall not have been conveyed
to the Buyer at the Closing, the Seller shall use its best efforts to convey
such asset to the Buyer as promptly as is practicable after the Closing. In the
event that any Easement shall not have been retained by the Seller after the
Closing, the
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Buyer shall use its best efforts to grant such Easement to the Seller as
promptly as is practicable after the Closing.
(c) To the extent that the Seller's rights under any Seller's
Agreement may not be assigned without the consent of another Person which
consent has not been obtained, this Agreement shall not constitute an agreement
to assign the same if an attempted assignment would constitute a breach thereof
or be unlawful, and the Seller, at its expense, shall use its commercially
reasonable efforts to obtain any such required consent(s) as promptly as
possible. The Seller and the Buyer agree that if any consent to an assignment of
any Seller's Agreement shall not be obtained or if any attempted assignment
would be ineffective or would impair the Buyer's rights and obligations under
the Seller's Agreement in question so that the Buyer would not in effect acquire
the benefit of all such rights and obligations, the Seller, to the maximum
extent permitted by law and such Seller's Agreement, shall after the Closing
appoint the Buyer to be the Seller's agent with respect to such Seller's
Agreement, and the Seller shall, to the maximum extent permitted by law and such
Seller's Agreement, enter into such reasonable arrangements with the Buyer as
are necessary to provide the Buyer with the benefits and obligations of such
Seller's Agreement. The Seller and the Buyer shall cooperate and shall each use
their commercially reasonable efforts after the Closing to obtain an assignment
of any such Seller's Agreement to the Buyer.
(d) The Seller and the Buyer covenant and agree to negotiate and enter
into in good faith such further agreements for operating the Purchased Assets
after the Closing Date as either the Seller or the Buyer may reasonably request.
7.5 PUBLIC STATEMENTS. The parties shall consult with each other prior to
issuing any public announcement, statement or other disclosure with respect to
this Agreement or the transactions contemplated hereby and shall not issue any
such public announcement, statement or other disclosure prior to such
consultation, except as may be required by law and except that the parties may
make public announcements, statements or other disclosures with respect to this
Agreement and the transactions contemplated hereby to the extent and under the
Circumstances in which the parties are expressly permitted by the
Confidentiality Agreement to make disclosures of "Proprietary Information" (as
defined in the Confidentiality Agreement).
7.6 CONSENTS AND APPROVALS. (a) The Seller and the Buyer shall each file
or cause to be tiled with the Federal Trade Commission and the United States
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Department of Justice any notifications required to be tiled under the HSR Act
and the rules and regulations promulgated thereunder with respect to the
transactions contemplated hereby. The parties shall consult with each other as
to the appropriate time of filing such notifications and shall use their best
efforts to make such filings at the agreed upon times, to respond promptly to
any requests for additional information made by either of such agencies, and to
cause the waiting periods under the HSR Act to terminate or expire at the
earliest possible date after each date of filing.
(b) The Seller and the Buyer shall cooperate with each other and (i)
promptly prepare and file all necessary documentation, (ii) effect all necessary
applications, notices, petitions and filings and execute all agreements and
documents, (iii) use all commercially reasonable efforts to obtain the transfer
or reissuance to the Buyer of all (including obtaining from applicable
government bodies rights reasonably satisfactory to the Buyer in order for the
Buyer to operate, maintain and repair the Coles River Water Line) Transferable
Permits, consents, approvals and authorizations of all governmental bodies and
(iv) use all commercially reasonable efforts to obtain all necessary consents,
approvals and authorizations of all other parties, in the case of each of the
foregoing clauses (i), (ii), (iii) and (iv), necessary or advisable to
consummate the transactions contemplated by this Agreement (including, without
limitation, the Seller Required Regulatory Approvals and the Buyer Required
Regulatory Approvals) or required by the terms of any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit, concession, contract,
lease or other instrument to which the Seller or the Buyer is a party or by
which any of them is bound. The Seller shall have the right to review and
approve in advance all characterizations of the information relating to
Purchased Assets, and each of the Seller and the Buyer shall have the right to
review in advance all characterizations of the information relating to the
transactions contemplated by this Agreement which appear in any filing made in
connection with the transactions contemplated hereby.
7.7 FEES AND COMMISSIONS. The Seller and the Buyer each represent and
warrant to the other that, except for Reed Consulting Group, which is acting for
and at the expense of the Seller, no broker, finder or other Person is entitled
to any brokerage fees, commissions or finder's fees in connection with the
transaction contemplated hereby by reason of any action taken by the party
making such representation. The Seller and the Buyer will pay to the other or
otherwise discharge, and will indemnify and hold the other harmless from and
against, any and all claims or liabilities for all brokerage fees, commissions
and finder's fees (other than as described above) incurred by reason of any
action taken by such party.
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7.8 TAX MATTERS. (a) All transfer and sales taxes incurred in connection
with this Agreement and the transactions contemplated hereby shall be borne by
the Buyer, and the Buyer, at its own expense, will file, to the extent required
by applicable law, all necessary Tax Returns and other documentation with
respect to all such transfer or sales taxes, and, if required by applicable law,
the Seller will join in the execution of any such Tax Returns or other
documentation. Prior to the Closing Date, the Buyer will provide to the Seller,
to the extent possible, an appropriate certificate of no Tax due from each
applicable taxing authority.
(b) With respect to Taxes to be prorated in accordance with Section
3.4 of this Agreement only, the Buyer shall prepare and timely file all Tax
Returns required to be filed with respect to the Purchased Assets, if any, and
shall duly and timely pay all such Taxes shown to be due on such Tax Returns,
The Buyer's preparation of any such Tax Returns shall be subject to the Seller's
approval, which approval shall not be unreasonably withheld. The Buyer shall
make such Tax Returns available for the Seller's review and approval no later
than 25 Business Days prior to the due date for filing such Tax Return. Within
twenty (20) Business Days after receipt of such Tax Return, the Seller shall pay
to the Buyer their proportionate share of the amount shown as due on such Tax
Return determined in accordance with the Section 3.4 of this Agreement.
(c) Each of the Buyer and the Seller shall provide the other with such
assistance as may reasonably be requested by the other party in connection with
the preparation of any Tax Return, any audit or other examination by any taxing
authority, or any judicial or administrative proceedings relating to liability
for Taxes, and each will retain and provide the requesting party with any
records or information which may be relevant to such return, audit or
examination, proceedings or determination. Any information obtained pursuant to
this Section 7.8(c) or pursuant to any other Section hereof providing for the
sharing of information or review of any Tax Return or other schedule relating to
Taxes shall be kept confidential by the parties hereto.
7.9 SUPPLEMENTS TO SCHEDULES. Prior to the Closing Date the Seller shall
supplement or amend the Schedules required by Section 2.4 and Article V with
respect to any matter relating to the Purchased Assets hereafter arising which,
if existing or occurring at the date of this Agreement, would have been required
to be set forth or described in such Schedules. No supplement or amendment of
any Schedule made pursuant to this Section shall be deemed to cure any breach of
any
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representation or warranty made in this Agreement unless the parties agree
thereto in writing.
7.10 EMPLOYEES. (a) The Buyer may offer employment, effective as of the
Closing Date, to those employees of the Seller who are in a function listed in
Schedule 7.10(a) (collectively, "MONTAUP EMPLOYEES"). All such offers of
employment shall be made (i) in accordance with all applicable laws and
regulations and (ii) in the case of employees represented by a bargaining unit
of the Seller, in accordance with the Collective Bargaining Agreement and the
Memorandum of Understanding. Each individual who becomes employed by the Buyer
pursuant to this Section 7.10 shall be referred to herein as a "BUYER EMPLOYEE."
Buyer may commence offering employment to Montaup Employees beginning thirty
days after the date of this Agreement.
Except as stipulated in the Memorandum of Understanding or as otherwise
agreed to by the Buyer, the Seller will refrain, and will use its best efforts
to cause its Affiliates to refrain, from offering employment from the date of
this Agreement until the Closing Date (the "BUYER WINDOW") to Montaup Employees.
Thereafter, the Seller and its Affiliates may offer employment to Montaup
Employees who were not offered or did not accept a position with the Buyer
during the Buyer Window.
For all employees employed by the Seller or its Affiliates other than
Montaup Employees to whom the Buyer wants to offer employment, the Buyer and the
Seller shall mutually agree upon the hiring process, transition and timing
thereof.
(b) Schedule 7.10(b) sets forth the collective bargaining agreement,
and amendments thereto, to which the Seller is a party in connection with the
Purchased Assets (the "COLLECTIVE BARGAINING AGREEMENT") and the Memorandum of
Understanding with respect thereto (the "MEMORANDUM OF UNDERSTANDING"). With
respect to Montaup Employees who are included in the collective bargaining units
covered by the Collective Bargaining Agreement ("CB EMPLOYEES"), on the Closing
Date, the Buyer will assume the Collective Bargaining Agreement as it relates to
CB Employees to be employed at the Purchased Assets and comply with all
applicable obligations thereunder and will assume and fulfill all obligations
under the Memorandum of Understanding that are specifically designated for the
new owner of the Purchased Assets, including but not limited to the obligation
of such new owner to recognize the Utility Workers Union of America, AFL-CIO and
Local Union No. 396 (collectively, the "UWUA") as the collective bargaining
agent as long as supported by applicable law.
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(c) The Buyer will make a statement, in writing, to the Seller that it
accepts the Collective Bargaining Agreement and the obligations specifically
designated for the new owner of the Purchased Assets under the Memorandum of
Understanding in effect on the Closing Date. With respect to Montaup Employees
who are represented by the UWUA, severance costs under the Memorandum of
Understanding will be the Seller's responsibility.
(d) For the period commencing on the Closing Date and ending twelve
(12) months thereafter, the Buyer shall provide all Buyer Employees (other than
those individuals who previously were CB Employees) (collectively, "NON-UNION
BUYER EMPLOYEES") with salary and benefits reasonably comparable, in the
aggregate, to the salary and benefits provided to Montaup Employees (or to
employees of the Seller or its Affiliates in the event that such employees are
hired by the Buyer pursuant to Section 7.10(a) above) immediately prior to the
Closing Date: provided, however, that in the event the Buyer terminates (other
than for cause) the employment of a Non-Union Buyer Employee during the twelve
month period, the Buyer shall continue to provide such Non-Union Employee full
salary and benefits until the end of such period. The Seller acknowledges that
the Buyer has the right to implement different benefit plans to fulfill the
foregoing requirement. The Buyer further covenants to provide the Seller a
schedule summarizing the benefit package it intends to provide Non-Union Buyer
Employees to satisfy its obligation under this Section 7. 10(d) within
seventy-five days after the signing of this Agreement, but in no event later
than thirty days prior to the Closing. All costs under this Section 7.10(d)
shall be the sole and exclusive responsibility of the Buyer.
(e) The Buyer shall notify the Seller in each instance that the Buyer
terminates. within eighteen months of the Closing Date, the employment of a
Non-Union Buyer Employee, and such notice shall state the date that the Buyer
terminated the Non-Union Buyer Employee's employment and be delivered to the
Seller within ten business days of such termination.
(f) As of the Closing Date, all Non-Union Buyer Employees shall cease
to participate in the employee welfare benefit plans (as such term is defined in
ERISA) maintained or sponsored by the Seller or its Affiliates (the "PRIOR
WELFARE PLANS") and shall, if applicable, commence to participate in welfare
benefit plans of the Buyer or its Affiliates (the "REPLACEMENT WELFARE PLANS").
The Buyer, at its expense, shall (i) waive all limitations as to pre-existing
condition exclusions and waiting periods with respect to Non-Union Buyer
Employees under the Replacement
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Welfare Plans, other than, but only to the extent of, limitations or waiting
periods that were in effect with respect to such employees under the Prior
Welfare Plans and that have not been satisfied as of the Closing Date, and (ii)
provide each Non-Union Buyer Employee with credit for any co-payments and
deductibles paid prior to the Closing Date in satisfying any deductible or
out-of-pocket requirements under the Replacement Welfare Plans (on a pro-rata
basis in the event of a difference in plan years).
(g) Non-Union Buyer Employees shall be given credit for all service
with the Seller and its Affiliates under all employee benefit plans and
programs, and fringe benefit or other employee benefits arrangements of the
Buyer ("BUYER BENEFIT PLANS") in which they become participants. The service
credit given is for purposes of eligibility, vesting and service related level
of benefits, but not benefit accrual. For purposes of benefit accrual, Non-Union
Buyer Employees shall be given credit for all service with the Seller and its
Affiliates under all Buyer Benefit Plans, but the ultimate benefits provided
under the Buyer Benefit Plans may be offset by those previously provided by the
Seller or benefit plans of the Seller, or by the benefits accrued under the
benefit plans of the Seller or otherwise committed to be provided by the Seller
in the future.
(h) The Buyer shall take any and all necessary action to cause the
trustee of a defined contribution plan of the Buyer or one of its Affiliates, if
requested to do so by a Buyer Employee, to accept a direct "rollover" of all or
a portion of said employee's distribution from the Eastern Utilities Associates
Employees' Retirement Plan and Eastern Utilities Associates Employees' Savings
Plan.
(i) The Seller agrees to timely perform and discharge all requirements
under the WARN Act and under applicable state and local laws and regulations for
the notification of their employees arising from the sale of the Purchased
Assets to the Buyer up to and including the Closing Date for those employees who
will become Buyer Employees effective as of the Closing Date. After the
applicable Closing Date, the Buyer shall be responsible for performing and
discharging all requirements under the WARN Act and under applicable state and
local laws and regulations for the notification of its employees with respect to
the Purchased Assets.
7.11 RISK OF LOSS. (a) From the date hereof through the Closing Date, all
risk of loss or damage to the property included in the Purchased Assets shall be
borne by the Seller.
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(b) If, before the Closing Date, all or any portion of the Purchased
Assets are taken by eminent domain (or are the subject of a pending or, to the
knowledge of the Seller, contemplated taking which has not been consummated),
the Seller shall notify the Buyer promptly in writing of such fact. If such
taking would have a Material Adverse Effect, the Buyer and the Seller shall
negotiate in good faith to settle the loss resulting from such taking
(including, without limitation, by making a fair and equitable adjustment to the
Purchase Price) and, upon such settlement, consummate the transaction
contemplated by this Agreement pursuant to the terms of this Agreement. If no
such settlement is reached within sixty (60) days after the Seller's having
notified the Buyer of such taking, then the Buyer or the Seller may terminate
this Agreement pursuant to Section 10.1(1).
(c) If before the Closing Date all or any material portion of the
Purchased Assets are damaged or destroyed by fire or other casualty, the Seller
shall notify the Buyer promptly in writing of such fact. If such damage or
destruction would have a Material Adverse Effect and the Seller has not notified
the Buyer of its intention to cure such damage or destruction within fifteen
(15) days after its occurrence, the Buyer and the Seller shall negotiate in good
faith to settle the loss resulting from such casualty (including, without
limitation, by making a fair and equitable adjustment to the Purchase Price)
and, upon such settlement, consummate the transactions contemplated by this
Agreement pursuant to the terms of this Agreement. If no such settlement is
reached within sixty (60) days after the Seller's having notified the Buyer of
such casualty, then the Buyer or the Seller may terminate this Agreement
pursuant to Section 10.1(f).
ARTICLE VIII
PURCHASED ASSETS CLOSING CONDITIONS
8.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE PURCHASE
TRANSACTIONS. The respective obligations of each party to effect the sale of the
Purchased Assets shall be subject to the fulfillment at or prior to the Closing
Date of the following conditions:
(a) The waiting period under the HSR Act applicable to the
consummation of the sale of the Purchased Assets contemplated hereby shall have
expired or been terminated;
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(b) No preliminary or permanent injunction or other order or decree by
any federal or state court which prevents the consummation of the sale of the
Purchased Assets contemplated hereby shall have been issued and remain in effect
(each party agreeing to use its reasonable best efforts to have any such
injunction, order or decree lifted) and no statute, rule or regulation shall
have been enacted by any state or federal government or governmental agency in
the United States which prohibits the consummation of the sale of the Purchased
Assets;
(c) All federal, state and local government consents and approvals
required for the consummation of the sale of the Purchased Assets, including,
without limitation, the Seller Required Regulatory Approvals applicable to the
sale of the Purchased Assets and the Buyer Required Regulatory Approvals
applicable to the sale of the Purchased Assets, shall have been obtained or
become Final Orders (a "Final Order" means a final order after all opportunities
for rehearing are exhausted), and such Final Orders shall not impose materially
adverse terms and conditions unless the failure to obtain such consent or
approval would not result in a Material Adverse Effect; and
(d) All consents and approvals for the consummation of the sale of the
Purchased Assets contemplated hereby required under the terms of any note, bond,
mortgage, indenture, contract or other agreement to which the Seller or the
Buyer, or any of their Subsidiaries or Affiliates, are a party shall have been
obtained, other than those (i) which if not obtained, would not, in the
aggregate, have a Material Adverse Effect, or (ii) which are governed by Section
7.4(c).
8.2 CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligation of the Buyer
to effect the sale of the Purchased Assets contemplated by this Agreement shall
be subject to the fulfillment at or prior to the Closing Date of the following
additional conditions:
(a) There shall not have occurred and be continuing a Material Adverse
Effect;
(b) The Seller shall have performed and complied with in all material
respects the covenants and agreements contained in this Agreement which relate
to the Purchased Assets and are required to be performed and complied with by
the Seller on or prior to the Closing Date, and the representations and
warranties of the Seller which relate to the Purchased Assets and are set forth
in this Agreement
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shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made at and as of the Closing
Date;
(c) There shall be no Encumbrances on the Purchased Assets by virtue
of the Indenture;
(d) The Buyer shall have received certificates from authorized
officers of the Seller, dated the Closing Date, to the effect that, to the best
of such officers' knowledge, the conditions set forth in Sections 8.2(a), (b)
and (c) have been satisfied;
(e) All Transferable Permits shall have been assigned or otherwise
transferred to the Buyer without the imposition, as a result of such assignment
or transfer, of new materially adverse terms and conditions:
(f) Lawyers Title Insurance Corporation or its successor shall be
willing to issue to the Buyer (without additional premium to the Buyer for
insurance over matters which are not Permitted Policy Exceptions) an owner's
policy of title insurance with respect to the Real Estate in an amount at least
equal to the Purchase Price with only such exceptions to title (collectively,
the "PERMITTED POLICY EXCEPTIONS") (x) as are indicated in the Specimen Title
Policy as permitted exceptions and (y) such additional exceptions, if any, as
shall not, in the aggregate, materially and adversely impair the marketability
of the Real Estate;
(g) The Buyer shall have received an opinion from McDermott, Will &
Emery, counsel for the Seller, dated the Closing Date and satisfactory in form
and substance to the Buyer and its counsel, substantially to the effect that;
(1) The Seller is a corporation organized, existing and in good
standing under the laws of its state of incorporation and has the corporate
power and authority to execute and deliver this Agreement and those Ancillary
Agreements which relate to the Purchased Assets and to consummate the
transactions contemplated hereby; and the execution and delivery of this
Agreement and such Ancillary Agreements and the consummation of the sale of the
Purchased Assets contemplated hereby have been duly authorized by all requisite
corporate action taken on the part of the Seller;
(2) this Agreement and those Ancillary Agreements which relate to the
Purchased Assets have been executed and delivered by the Seller and (assum-
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ing that the Seller Required Regulatory Approvals and the Buyer Required
Regulatory Approvals are obtained) are valid and binding obligations of the
Seller, enforceable against the Seller in accordance with their terms, except
(A) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights, and (B) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought;
(3) the execution, delivery and performance of this Agreement and the
Ancillary Agreements by the Seller will not constitute a violation of the
Certificate of Incorporation or Bylaws (or similar governing documents), as in
effect on the Closing Date, of the Seller;
(4) the Bill of Sale and other documents described in Section 4.3 are
in proper form to transfer to the Buyer title to the Purchased Assets; and
(5) no declaration, filing or registration with, or notice to, or
authorization, consent or approval of any governmental authority is necessary
for the consummation by the Seller of the Closing other than (i) the Seller
Required Regulatory Approvals, all of such Seller Required Regulatory Approvals
which are applicable to the sale of the Purchased Assets hereunder having been
obtained and being in full force and effect with such terms and conditions as
shall have been imposed by any applicable governmental authority, and (ii) such
declarations, filings, registrations, notices, authorizations, consents or
approvals which, if not obtained or made, would not, in the aggregate have a
Material Adverse Effect.
As to any matter contained in such opinion which involves the laws of any
jurisdiction other than the federal laws of the United States or the laws of
Massachusetts, such counsel may rely upon opinions of counsel admitted in such
other jurisdictions. Any opinions relied upon by such counsel as aforesaid shall
be delivered together with the opinion of such counsel. Such opinion may
expressly rely as to matters of fact upon certificates furnished by the Seller
and appropriate officers and directors of the Seller and by public officials.
8.3 CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligation of the Seller
to effect the sale of the Purchased Assets contemplated by this Agreement shall
be subject to the fulfillment at or prior to the Closing Date of the following
additional conditions:
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(a) The Buyer shall have performed in all material respects its
covenants and agreements contained in this Agreement which relate to the
Purchased Assets and are required to be performed on or prior to the Closing
Date;
(b) The representations and warranties of the Buyer set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though made at and as of the
Closing Date;
(c) The Seller shall have received a certificate from an authorized
officer of the Buyer, dated the Closing Date, to the effect that, to the best of
such officer's knowledge, the conditions set forth in Sections 8.3(a) and (b)
have been satisfied;
(d) The Buyer shall have assumed, as set forth in Section 7.10, all of
the applicable obligations under the Collective Bargaining Agreement and the
Memorandum of Understanding as they relate to union employees to be employed at
or in conjunction with the Purchased Assets after the Closing Date;
(e) The approvals by the FERC of the Stipulations and Agreements filed
in FERC Docket No. ER97-3127-000 by and between the Office of the Attorney
General of Massachusetts, the Massachusetts Division of Energy Resources,
Eastern Edison Company and the Seller, dated October 29, 1997: Docket No.
ER97-2800-000 by and between the RIPUC, the Rhode Island Division of Public
Utilities and Carriers, Blackstone Valley Electric Company, the Seller and
Newport Electric Corporation: Docket No. ER97-3127-000 and ER97-2800-000 between
the Seller and the Pascoag Fire District of Rhode Island; Docket No. ER97-3
127-000 and ER97-2800-000 between the Seller and the Gas and Electric Department
- -of the Town of Middleborough; and Docket No. ER97-2338-000 between the Seller
and the Taunton Municipal Lighting Plant, Pascoag Fire District of Rhode Island
and the Gas and Electric Department of the Town of Middleborough shall continue
to be in full force and effect; and
(f) The Seller shall have received an opinion from counsel for the
Buyer acceptable to the Seller, dated the Closing Date and satisfactory in form
and substance to the Seller and the Seller's counsel, substantially to the
effect that:
(1) the Buyer is a limited liability company organized, existing and
in good standing under the laws of the State of Delaware and has the power and
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authority to execute and deliver this Agreement and those Ancillary Agreements
which relate to the Purchased Assets and to consummate the transactions
contemplated hereby; and the execution and delivery of this Agreement and such
Ancillary Agreements and the consummation of the sale of the Purchased Assets
contemplated hereby have been duly authorized by all requisite action taken on
the part of the Buyer;
(2) this Agreement and those Ancillary Agreements which relate to the
Purchased Assets have been executed and delivered by the Buyer and (assuming
that the Seller Required Regulatory Approvals and the Buyer Required Regulatory
Approval are obtained) are valid and binding obligations of the Buyer,
enforceable against the Buyer in accordance with their terms, except (A) that
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (B) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to certain equitable defenses
and to the discretion of the court before which any proceeding therefore may be
brought;
(3) the execution, delivery and performance of this Agreement and the
Ancillary Agreements by the Buyer will not constitute a violation of the
Certificate of Formation or Limited Liability Company Agreement (or other
similar governing documents), as in effect on the Closing Date, of the Buyer;
(4) the Instrument of Assumption and other instruments described in
Section 4.4 are in proper form for the Buyer to assume the Assumed Liabilities;
and
(5) no declaration, filing or registration with, or notice to, or
authorization, consent or approval of any governmental authority is necessary
for the consummation by the Buyer of the Closing other than the Buyer Required
Regulatory Approvals, all of such Buyer Required Regulatory Approvals which are
applicable to the sale of the Purchased Assets hereunder having been obtained
and being in full force and effect with such terms and conditions as shall have
been imposed by any applicable governmental authority.
As to any matter contained in such opinion which involves the laws of any
jurisdiction other than the federal laws of the United States and the laws of
Massachusetts, such counsel may rely upon opinions of counsel admitted to
practices in such other jurisdictions. Any opinions relied upon by such counsel
as aforesaid
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shall be delivered together with the opinion of such counsel. Such opinion may
expressly rely as to matters of facts upon certificates furnished by appropriate
officers and directors of the Buyer and its subsidiaries and by public
officials.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION. (a) The Seller will indemnify, defend and hold
harmless the Buyer from and against any and all claims, demands or suits (by any
Person), losses, liabilities, damages (including consequential or special
damages), obligations, payments, costs and expenses (including, without
limitation, the costs and expenses of any and all actions, suits, proceedings,
assessments, judgments, settlements and compromises relating thereto and
reasonable attorneys' fees and reasonable disbursements in connection therewith)
to the extent the foregoing are not covered by insurance (each, an
"INDEMNIFIABLE LOSS"), asserted against or suffered by the Buyer relating to,
resulting from or arising out of (i) any breach by the Seller of any covenant or
agreement of the Seller contained in this Agreement, (ii) the Excluded
Liabilities or (iii) any breach by the Seller of any representation or warranty
set forth in Section 5.1, 5.2, 5.3 or 5.17 hereof.
(b) The Buyer will indemnify, defend and hold harmless the Seller from
and against any and all Indemnifiable Losses asserted against or suffered by the
Seller relating to, resulting from or arising out of (i) any breach by the Buyer
of any covenant or agreement of the Buyer contained in this Agreement, (ii) the
Assumed Liabilities, or (iii) any breach by the Buyer of any representation or
warranty set forth in Article VI hereof.
(c) Any Person entitled to receive indemnification under this
Agreement (an "INDEMNITEE") having a claim under these indemnification
provisions shall make a good faith effort to recover all losses, damages, costs
and expenses from insurers of such Indemnitee under applicable insurance
policies so as to reduce the amount of any Indemnifiable Loss hereunder. The
amount of any Indemnifiable Loss shall be reduced (i) to the extent that
- -Indemnitee receives any insurance proceeds with respect to an Indemnifiable
Loss and (ii) to take into account any net Tax benefit recognized by the
Indemnitee arising from the recognition of the Indemnifiable Loss and any
payment actually received with respect to an Indemnifiable Loss.
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(d) The expiration, termination or extinguishment of any covenant or
agreement shall not affect the parties' obligations under this Section 9.1 if
the Indemnitee provided the Person required to provide indemnification under
this Agreement (the "INDEMNIFYING PARTY") with proper notice of the claim or
event for which indemnification is sought prior to such expiration, termination
or extinguishment.
(e) Buyer and Seller each agree that notwithstanding any provisions in
this Agreement to the contrary, all parties to this Agreement retain their
remedies at law or in equity with respect to willful or intentional breaches of
this Agreement.
(f) The rights and remedies of the Seller and the Buyer under this
Article IX are exclusive and in lieu of any and all other rights and remedies
which the Seller and the Buyer may have under this Agreement or otherwise for
monetary relief with respect to (i) any breach or failure to perform any
covenant, agreement, representation or warranty set forth in this Agreement or
(ii) the Assumed Liabilities or the Excluded Liabilities, as the case may be.
9.2 DEFENSE OF CLAIMS. (a) If any Indemnitee receives notice of the
assertion of any claim or of the commencement of any claim, action, or
proceeding made or brought by any Person who is not a party to this Agreement or
any Affiliate of a party to this Agreement (a "THIRD PARTY CLAIM") with respect
to which indemnification is to be sought from an Indemnifying Party, the
Indemnitee will give such Indemnifying Party reasonably prompt written notice
thereof, but in any event not later than ten (10) calendar days after the
Indemnitee' s receipt of notice of such Third Party Claim. Such notice shall
describe the nature of the Third Party Claim in reasonable detail and will
indicate the estimated amount, if practicable, of the Indemnifiable Loss that
has been or may be sustained by the Indemnitee. -The Indemnifying Party will
have the right to participate in or, by giving written notice to the Indemnitee,
to elect to assume the defense of any Third Party Claim at such Indemnifying
Party's own expense and by such Indemnifying Party's own counsel, and the
Indemnitee will cooperate in good faith in such defense at such Indemnitee's own
expense.
(b) If within ten (10) calendar days after an Indemnitee provides
written notice to the Indemnifying Party of any Third Party Claim the Indemnitee
receives written notice from the Indemnifying Party that such Indemnifying Party
has
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elected to assume the defense of such Third Party Claim as provided in the last
sentence of Section 9.2(a). the Indemnifying Party will not be liable for any
legal expenses subsequently incurred by the Indemnitee in connection with the
defense thereof: provided, however, that if the Indemnifying Party fails to take
reasonable steps necessary to defend diligently such Third Party Claim within
twenty (20) calendar days after receiving notice from the Indemnitee that the
Indemnitee believes the Indemnifying Party has failed to take such steps, the
Indemnitee may assume its own defense, and the Indemnifying Party will be liable
for all reasonable expenses thereof. Without the prior written consent of the
Indemnitee, the Indemnifying Party will not enter into any -settlement of any
Third Party Claim which would lead to liability or create any financial or other
obligation on the part of the Indemnitee for which the Indemnitee is not
entitled to indemnification hereunder. If a firm offer is made to settle a Third
Party Claim without leading to liability or the creation of a financial or other
obligation on the part of the Indemnitee for which the Indemnitee is not
entitled to indemnification hereunder and the Indemnifying Party desires to
accept and agree to such offer, the Indemnifying Party will give written notice
to the Indemnitee to that effect. If the Indemnitee fails to consent to such
firm offer within ten (10) calendar days after its receipt of such notice, the
Indemnitee may continue to contest or defend such Third Party Claim and, in such
event, the maximum liability of the Indemnifying Party as to such Third Party
Claim will be the amount of such settlement offer, plus reasonable costs and
expenses paid or incurred by the Indemnitee up to the date of such notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss
which does not result from a Third Party Claim (a "DIRECT CLAIM") will be
asserted by giving the Indemnifying Party reasonably prompt written notice
thereof, stating the nature of such claim in reasonable detail and indicating
the estimated amount, if practicable, but in any event not later than ten (10)
calendar days after the Indemnitee becomes aware of such Direct Claim, and the
Indemnifying Party will have a period of thirty (30) calendar days within which
to respond to such Direct Claim. If the Indemnifying Party does not respond
within such thirty (30) calendar day period, the Indemnifying Party will be
deemed to have accepted such claim. If the Indemnifying Party rejects such
claim, the Indemnitee will be free to seek enforcement of its rights to
indemnification under this Agreement.
(d) If the amount of any Indemnifiable Loss, at any time subsequent to
the making of an indemnity payment in respect thereof, is reduced by recovery,
settlement or otherwise under or pursuant to any insurance coverage, or pursuant
to any claim, recovery, settlement or payment by or against any other entity,
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the amount of such reduction, less any costs, expenses or premiums incurred in
connection therewith (together with interest thereon from the date of payment
thereof at the prime rate then in effect of the Bank of Boston, N.A.), will
promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any
indemnity payment, the Indemnifying Party will, to the extent of such indemnity
payment, be surrogated to all rights of the Indemnitee against any third party
in respect of the Indemnifiable Loss to which the indemnity payment relates;
provided, however, that (i) the Indemnifying Party will then be in compliance
with its obligations under this Agreement in respect of such Indemnifiable Loss
and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss,
any and all claims of the Indemnifying Party against any such third party on
account of said indemnity payment is hereby made expressly subordinated and
subjected in right of payment to the Indemnitee's rights against such third
party. Without limiting the generality or effect of any other provision hereof,
each such Indemnitee and Indemnifying Party will duly execute upon request all
instruments reasonably necessary to evidence and perfect the above-described
subrogation and subordination rights. Nothing in this Section 9.2(d) shall be
construed to require any party hereto to obtain or maintain any insurance
coverage.
(e) A failure to give timely notice as provided in this Section 9.2
will not affect the rights or obligations of any party hereunder except if, and
only to the extent that, as a result of such failure, the party which was
entitled to receive such notice was actually prejudiced as a result of such
failure.
ARTICLE X
TERMINATION AND ABANDONMENT
10.1 TERMINATION. (a) This Agreement may be terminated at any time prior
to the Closing Date by mutual written consent of the Seller and the Buyer.
(b) This Agreement may be terminated by the Seller or the Buyer if the
Closing has not occurred on or before the second anniversary of the date of this
Agreement (the "TERMINATION DATE"); provided that the right to terminate this
Agreement under this Section 10.1(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such date; and
provided, further, that if on the second anniversary of the date of this
Agreement the conditions
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to the Closing set forth in Section 8.1(c) shall not have -been fulfilled but
all other conditions to the Closing shall be fulfilled or shall be capable of
being fulfilled, then the Termination Date shall be the day which is thirty (30)
months from the date of this Agreement.
(c) This Agreement may be terminated by either the Seller or the Buyer
if (i) any governmental or regulatory body, the consent of which is a condition
to the obligations of the Seller or the Buyer to consummate the Closing shall
have determined not to grant its or their consent and all appeals of such
determination shall have been taken and have been unsuccessful, (ii) one or more
courts of competent jurisdiction in the United States or any State shall have
issued an order, judgment or decree permanently restraining, enjoining or
otherwise prohibiting the Closing, and such order, judgment or decree shall have
become final and nonappealable or (iii) any statute, rule or regulation shall
have been enacted by any State or federal government or governmental agency in
the United States which prohibits the consummation of the Closing.
(d) This Agreement may be terminated by the Buyer, if there has been a
material violation or breach by the Seller of any agreement, representation or
warranty contained in this Agreement which has rendered the satisfaction of any
condition to the -obligations of the Buyer to effect the Closing impossible and
such violation or breach has not been waived by the Buyer.
(e) This Agreement may be terminated by the Seller, if there has been
a material violation or breach by the Buyer of any agreement, representation or
warranty -contained in this Agreement which has rendered the satisfaction of any
condition to the - -obligations of the Seller to effect the Closing impossible
and such violation or breach has not been waived by the Seller.
(f) This Agreement may be terminated by either of the Seller or the
Buyer in accordance with the provisions of Section 7.11(b) or (c).
10.2 PROCEDURE AND EFFECT OF TERMINATION. In the event of termination of
this Agreement and abandonment of the transactions contemplated hereby by either
or both of the parties pursuant to Section 10.1, written notice thereof shall
forthwith be given by the terminating party 'to the other party and this
Agreement shall terminate and the transactions contemplated hereby shall be
abandoned, without further action by any of the parties hereto. If this
Agreement is terminated as provided herein:
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(a) said termination shall be the sole remedy of the parties hereto
with respect to breaches of any agreement, representation or warranty contained
in this Agreement and none of the parties hereto nor any of their respective
trustees, directors, officers or Affiliates, as the case may be, shall have any
liability or further obligation to the other party or any of their respective
trustees, directors, officers or Affiliates, as the case may be, pursuant to
this Agreement, except in each case as stated in this Section 10.2 and in
Sections 7.2(b), 7.3 and 7.7; and
(b) all filings, applications and other submissions made pursuant to
this Agreement, to the extent practicable, shall be withdrawn from the agency or
other Person to which they were made.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
the Seller and the Buyer.
11.2 WAIVER OF COMPLIANCE; CONSENTS. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
11.3 NO SURVIVAL. Subject to the provisions of Section 10.2, each and
every representation, warranty and covenant contained in this Agreement (other
than the covenants contained in Sections 3.2, 7.2(b), 7.3, 7.4, 7.7, 7.8 and
7.10 and in Articles IX and X (which covenants shall expire in accordance with
their terms), the representations, and warranties contained in Section 5.1, 5.2,
5.3, 5.17 and Article VI (which shall survive the Closing for a period of one
year) and the provisions of this Article XI (which shall survive indefinitely))
shall expire with, and be terminated and extinguished by, the consummation of
the sale of the Purchased Assets and the transfer of the Assumed Liabilities
related thereto pursuant to this Agreement; and
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none of the Seller, the Buyer or any officer, director, trustee or Affiliate of
any of them shall be under any liability whatsoever with respect to any such
representation, warranty or covenant.
11.4 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by facsimile
transmission, telexed or mailed by overnight courier or registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice: provided that notices of a change of address shall be effective
only upon receipt thereof):
(a) If to the Seller, to:
c/o EUA Services Corporation
750 West Center Street
West Bridgewater, MA 02379
Facsimile: (508) 583-8932
Attention: Manager - Power Resources
with a copy to:
McDermott, Will & Emery
75 State Street
Suite 1700
Boston, MA 62 109-1807
Facsimile: (617) 345-5077
Attention: David A. Fazzone, P.C.
(b) if to the Buyer, to:
NRG Energy, Inc.
1221 Nicollet Mall
Minneapolis, MN 55403-2445
Attention: Craig Mataczynski
President, NRG North America
Facsimile: (612) 373-5430
with a copy to:
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NRG Energy, Inc.
1221 Nicollet Mall
Minneapolis, MN 55403-2445
Attention: James Bender General Counsel
Facsimile: (612) 373-5392
11.5 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party
hereto, including by operation of law without the prior written consent of the
other party, nor is this Agreement intended to confer upon any other Person
except the parties hereto any rights or remedies hereunder; except that the
Buyer may assign its rights hereunder to a wholly-owned Subsidiary or Affiliate,
provided that the Buyer will remain liable for all its obligations hereunder.
11.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts (regardless of the
laws that might otherwise govern under applicable Massachusetts principles of
conflicts of law) as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
11.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.8 INTERPRETATION. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
11.9 SCHEDULES AND EXHIBITS. All Exhibits and Schedules referred to
herein are intended to be and hereby are specifically made a part of this
Agreement.
11.10 ENTIRE AGREEMENT. This Agreement, and the Ancillary Agreements,
including the Exhibits, Schedules, documents, certificates and instruments
referred to herein or therein, embody the entire agreement and understanding of
the parties hereto in respect of the transactions contemplated by this
Agreement. There are no restrictions, promises, representations, warranties,
covenants or undertakings,
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other than those expressly set forth or referred to herein or therein. It is
expressly acknowledged and agreed that there are no restrictions, promises,
representations, warranties, covenants or undertakings contained in any material
made available to the Buyer (including the Information Memorandum, dated April,
1998, previously made available to the Buyer by the Seller and Reed Consulting
Group). This Agreement supersedes all prior agreements and understandings
between the parties with respect to such transactions.
11.11 BULK SALES OR TRANSFER LAWS. The Buyer acknowledges that the Seller
will not comply with the provision of any bulk sales or transfer laws of any
jurisdiction in connection with the transactions contemplated by this Agreement.
The Buyer hereby waives compliance by the Seller with the provisions of the bulk
sales or transfer laws of all applicable jurisdictions.
11.12 CONFIDENTIALITY. All documents and other papers and other
information given by either party hereto to the other party shall be considered
confidential and shall be used only for the purposes intended. If this Agreement
is terminated without the Closing having taken place, all documents and other
papers of either party which have been delivered to the other party and all
copies, summaries and extracts thereof shall be returned. Whether or not the
Closing takes place, all disclosures made by either party hereto to the other
party shall be treated as confidential and not used by such party for its own
benefit or disclosed to others, except insofar as the information contained in
such disclosures is readily ascertainable from public or published information,
or trade sources, or already known or subsequently developed by such party
independently of such disclosures, or received from a third party not under any
obligation to the party to whom such information pertains and the parties hereto
acknowledge that they and their respective representatives may provide such
documents and other papers and information in response to legal, judicial or
administrative process or applicable governmental, regulatory or administrative
statutes, laws, ordinances, codes, rules, regulations or orders, but only that
portion of the documents and other papers and information which, in the written
opinion of counsel for such party, is legally required to be furnished, and,
provided that such party notifies the other party of any such obligation to
provide any such document or other papers or information prior to such
disclosure and fully cooperates with such other party to protect the
confidentiality of such documents and other papers and information.
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IN WITNESS WHEREOF, the Seller and the Buyer have caused this agreement
to be signed by their respective duly authorized officers as of the date first
above written.
MONTAUP ELECTRIC COMPANY
By: /s/ Kevin A. Kirby
-----------------------------------
Name: Kevin A. Kirby
Title: Vice President
NRG ENERGY, INC.
By: /s/ Craig Mataczynksi
-----------------------------------
Name: Craig Mataczynski
Title: President, NRG North America
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FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of April 26,
1999 (this "Amendment"), among MONTAUP ELECTRIC COMPANY ("Seller") and SOMERSET
POWER LLC ("Buyer").
WITNESSETH:
WHEREAS, Buyer (as assignee of NRG Energy, Inc.) and Seller have entered
into an Asset Purchase Agreement, dated as of October 13, 1998 (the "Asset
Purchase Agreement" capitalized terms used but not defined herein shall have the
respective meanings set forth in the Asset Purchase Agreement).
WHEREAS, Section 7.9 of the Asset Purchase Agreement required the Seller
to supplement or amend the Schedules required by Section 2.4 and Article V of
the Asset Purchase Agreement and accordingly, the parties to this Amendment wish
to amend the Asset Purchase Agreement pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the premises and of the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO ASSET PURCHASE AGREEMENT. (a) The following
schedules are hereby deleted in their entirety and replaced by the corresponding
schedules attached hereto and made a part hereof:
Schedule 1.1 (a)(8)
Schedule 1.1 (a)(34)
Schedule l.1(a)(54)
Schedule 2.2
Schedule 5.6
Schedule 5.9
Schedule 5.14(a)
Schedule 5.16(b)
(b) Schedule 5.12 is hereby amended by adding the following
attachments attached hereto and make a part hereof:
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Title Commitment -- SWANSEA
Title Commitment -- SOMERSET STATION
Title Commitment -- DIGHTON
SECTION 2. POST-CLOSING ADJUSTMENTS. The parties agree that (a) the
amount due from Buyer on the Closing Date as the Closing Amount is only the
amount set forth in clause (i) of Section 3.1;
(b) any Adjustment Amount and any amounts to be pro-rated in
accordance with Section 3.4 shall be determined and paid in accordance with the
provisions of Section 3.2; and
(c) the amounts to be pro-rated in accordance with Section 3.4 shall
also include:
(i) proration of Seller prepayments associated with a mid-month
Closing Date including without limitation taxes, salaries and benefits;
(ii) payment of $17,529.33 to Seller from Buyer for the 1999 SO2
auction proceeds;
(iii) payment of $16,212 to Buyer from Seller to compensate Buyer
for certain expenses it incurs in connection with Seller's operation of
the switchyard for the 18 month period of the Temporary Switchboard
Easement; and
(iv) payment to Seller by Buyer for the cost of goods and
services received by Buyer that were shipped or provided after the
Closing Date under Seller's Purchase Orders and which were billed to and
paid by the Seller.
SECTION 3. CLOSING DATE. Notwithstanding the provisions of Section 4.1 of
the Asset Purchase Agreement the Closing Date is the date of this Amendment.
SECTION 4. REFERENCE TO AND EFFECT ON THE ASSET PURCHASE AGREEMENT. (a)
Each reference in the Asset Purchase Agreement to "this Agreement", "hereunder",
"hereof', and "herein", and in the Asset Purchase Agreement to the "Asset
Purchase Agreement", or words of like import referring to the Asset Purchase
Agreement shall mean and be a reference to the Asset Purchase Agreement, as
amended hereby.
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(b) Except as specifically amended above, the Asset Purchase Agreement
shall remain in full force and effect.
(c) This Amendment shall be limited precisely as written and, except
as expressly provided herein, shall not be deemed to (i) be a consent to any
waiver or modification of any other term or condition of the Asset Purchase
Agreement or any of the instruments or documents referred to therein or (ii)
prejudice any right or rights which the parties may now have or may have in the
future under or in connection with the Asset Purchase Agreement or any of the
instruments or documents referred to therein.
SECTION 5. EFFECTIVENESS. This Amendment shall become effective
immediately upon the execution and delivery by each party hereto of a
counterpart of this Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
MASSACHUSETTS PRINCIPLES OF CONFLICTS OF LAW) AS TO ALL MATTERS, INCLUDING BUT
NOT LIMITED TO MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND
REMEDIES.
SECTION 7. COUNTERPARTS. This Amendment may be executed iN counterparts,
each of which when so executed and delivered shall be deemed an original and all
of which together shall constitute one and the same instrument.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to be executed and delivered on its behalf by its duly authorized representative
on the date first above written.
MONTAUP ELECTRIC COMPANY
By: /s/ Kevin A. Kirby
------------------------------------
Name: Kevin A. Kirby
Title: Vice President
SOMERSET POWER LLC
By: /s/ Craig A. Mataczynski
------------------------------------
Name: Craig A. Mataczynski
Title: President
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