Exhibit 2.1
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PURCHASE AND SALE AGREEMENT
BY AND AMONG
WISCONSIN ENERGY CORPORATION
AND
WPS INVESTMENTS, LLC,
AS SELLERS
AND
NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP,
AS BUYER
DATED AS OF MARCH 30, 2006
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TABLE OF CONTENTS
Article I
DEFINITIONS
1.1 Definitions...................................................... 1
Article II
PURCHASE AND SALE AND CLOSING
2.1 Purchase and Sale................................................ 7
2.2 Purchase Price................................................... 7
2.3 Closing.......................................................... 7
2.4 Payment of Purchase Price........................................ 7
2.5 Closing Deliveries by Sellers to Buyer........................... 7
2.6 Closing Deliveries by Buyer to Sellers........................... 8
Article III
REPRESENTATIONS AND WARRANTIES REGARDING SELLERS
3.1 Organization, Standing........................................... 9
3.2 Authority........................................................ 9
3.3 Consents and Approvals; No Violation............................. 9
3.4 Capitalization................................................... 10
3.5 Legal Proceedings................................................ 10
3.6 Brokers.......................................................... 10
3.7 Compliance with Laws and Orders.................................. 10
Article IV
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Organization; Standing........................................... 11
4.2 Authority........................................................ 11
4.3 Consents and Approvals; No Violation............................. 11
4.4 Legal Proceedings................................................ 12
4.5 Compliance with Laws and Orders.................................. 12
4.6 Brokers.......................................................... 12
4.7 Acquisition as Investment........................................ 12
4.8 Financial Resources.............................................. 12
Article V
COVENANTS
5.1 Regulatory and Other Approvals; Efforts.......................... 13
5.2 Resignation of Members, Managers and Officers.................... 13
5.3 Use of Certain Names............................................. 13
5.4 Support Obligations.............................................. 13
5.5 Further Assurances............................................... 13
5.6 Sellers' Covenants and Closing Conditions........................ 13
5.7 Buyer's Covenants and Closing Conditions......................... 13
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Article VI
TAX MATTERS
6.1 Preparation and Filing of Tax Returns............................ 13
6.2 Cooperation on Tax Matters....................................... 13
6.3 Transfer Taxes................................................... 13
Article VII
BUYER'S CONDITIONS TO CLOSING
7.1 Representations and Warranties................................... 13
7.2 Performance...................................................... 13
7.3 Deliveries....................................................... 13
7.4 Orders and Laws.................................................. 13
7.5 Governmental Approvals........................................... 13
7.6 Guardian Expansion Project....................................... 13
Article VIII
SELLERs' CONDITIONS TO CLOSING
8.1 Representations and Warranties................................... 13
8.2 Performance...................................................... 13
8.3 Deliveries....................................................... 13
8.4 Orders and Laws.................................................. 13
8.5 Governmental Approvals........................................... 13
8.6 Consents......................................................... 13
Article IX
TERMINATION
9.1 Termination...................................................... 13
9.2 Effect of Termination............................................ 13
Article X
INDEMNIFICATION, LIMITATIONS OF
LIABILITY AND WAIVERS
10.1 Indemnification.................................................. 13
10.2 Limitations of Liability......................................... 13
10.3 Limited Claim Period............................................. 13
10.4 Waiver of Other Representations.................................. 13
10.5 Waiver of Remedies............................................... 13
10.6 Procedure for Indemnification - Third-Party Claims............... 13
Article XI
MISCELLANEOUS
11.1 Notices.......................................................... 13
11.2 Entire Agreement................................................. 13
11.3 Acknowledgment; Independent Due Diligence........................ 13
11.4 Expenses......................................................... 13
11.5 Public Announcements............................................. 13
11.6 Confidential Information......................................... 13
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11.7 Disclosure....................................................... 13
11.8 Waiver........................................................... 13
11.9 Amendment........................................................ 13
11.10 No Third Party Beneficiary....................................... 13
11.11 Assignment; Binding Effect....................................... 13
11.12 Headings......................................................... 13
11.13 Invalid Provisions............................................... 13
11.14 Counterparts; Facsimile.......................................... 13
11.15 Governing Law; Venue; Jurisdiction; Waiver of Jury Trial......... 13
11.16 Construction..................................................... 13
11.17 Attorneys' Fees.................................................. 13
11.18 Several Obligations of Sellers................................... 13
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EXHIBITS
Exhibit A - Form of Assignment and Conveyance
SCHEDULES
Schedule 1.1(a) - Sellers' Knowledge
Schedule 1.1(b) - Buyer's Knowledge
Schedule 3.3(a) - Seller Consents
Schedule 3.3(b) - Seller Approvals
Schedule 3.4 - Capitalization
Schedule 4.3(a) - Buyer Consents
Schedule 4.3(b) - Buyer Approvals
Schedule 5.4(a) - Support Obligations
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement, dated as of March 30, 2006 (this
"AGREEMENT"), is made and entered into by and among Wisconsin Energy
Corporation, a Wisconsin corporation ("WEC"), WPS Investments, LLC, a Wisconsin
limited liability company ("WPS INVESTMENTS" and together with WEC, "SELLERS"),
and Northern Border Intermediate Limited Partnership, a Delaware limited
partnership ("BUYER").
RECITALS
A. Sellers and Viking Gas Transmission Company (an Affiliate of Buyer)
collectively own 100% of the membership interests in Guardian Pipeline, L.L.C.,
a Delaware limited liability company ("COMPANY"), pursuant to that certain
Amended and Restated Limited Liability Company Agreement entered into among
them, effective January 31, 2001, as amended (the "LLC AGREEMENT").
B. Sellers collectively own sixty-six and two-thirds percent (66 2/3%)
of the membership interests (the "COMPANY INTERESTS") in the Company.
C. Sellers desire to sell to Buyer, and Buyer desires to purchase from
Sellers, the Company Interests, upon the terms and conditions set forth in this
Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms have
the meaning specified in this Section 1.1.
"1933 ACT" has the meaning given to it in Section 4.7.
"AFFILIATE" means any Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by or is under common control
with, the Person specified. For purposes of this definition, control of a Person
means the power to direct or cause the direction of the management and policies
of such Person whether through ownership of voting securities or ownership
interests, by contract or otherwise, and specifically with respect to a
corporation, partnership or limited liability company, means direct or indirect
ownership of more than 50% of the voting securities in such corporation or of
the voting interest in a partnership or limited liability company.
"AGREEMENT" has the meaning given to it in the introduction to this
Agreement.
"ASSETS" of any Person means all assets and properties of every kind,
nature, character and description (whether real, personal or mixed, whether
tangible or intangible and wherever situated), including the goodwill related
thereto, operated, owned or leased by such Person.
"ASSIGNMENT AND CONVEYANCE" means the Assignment and Conveyance in the
form of Exhibit A relating to the sale and transfer of the Company Interests
together with the assignment and assumption of the LLC Agreement and the
Contribution and Reimbursement Agreement.
"BUSINESS DAY" means a day other than Saturday, Sunday or any day on
which banks located in the State of Wisconsin are authorized or obligated to
close.
"BUYER" has the meaning given to it in the introduction to this
Agreement.
"BUYER APPROVALS" has the meaning given to it in Section 4.3(b).
"BUYER CONSENTS" has the meaning given to it in Section 4.3(a).
"CHARTER DOCUMENTS" means with respect to any Person, the articles or
certificate of incorporation, organization, or formation and the by-laws,
limited partnership agreement, partnership agreement or limited liability
company agreement, or such other organizational documents of such Person,
including those that are required to be registered or kept in the place of
incorporation, organization or formation of such Person and which establish the
legal personality of such Person.
"CLAIM" means any demand, claim, action, investigation, legal
proceeding (whether at law or in equity) or arbitration.
"CLOSING" means the closing of the transactions contemplated by this
Agreement, as provided for in Section 2.3.
"CLOSING DATE" means the date on which Closing occurs.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning given to it in the recitals.
"COMPANY ASSETS" means all of the Assets of the Company.
"COMPANY INTERESTS" has the meaning given to it in the recitals.
"CONSOLIDATED GROUP" means, with respect to any Person, the affiliated
group of Persons which join with such Person in the filing of a consolidated
federal income Tax Return (and any similar group under state law).
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"CONTRACT" means any written contract, lease, license, evidence of
indebtedness, mortgage, indenture, purchase order, binding bid, letter of
credit, security agreement or other written and legally binding arrangement.
"CONTRIBUTION AND REIMBURSEMENT AGREEMENT" means the Contribution and
Reimbursement Agreement, dated as of December 31, 2001, by and among WEC, as
successor in interest to WICOR, Inc., WPS Investments, as successor in interest
to CMS Panhandle Holdings, LLC, and Viking Gas Transmission Company
"CREDIT RATING" means, with respect to any Person, the rating given to
such Person's long-term unsecured debt obligations by Standard & Poor's Rating
Group (a division of McGraw-Hill, Inc.) or Moody's Investors Services, Inc., as
applicable, and any successors thereto.
"DEDUCTIBLE AMOUNT" has the meaning given to it in Section 10.2(c).
"ENVIRONMENT" means all or any of the following media: soil, land
surface and subsurface strata, surface waters (including navigable waters,
streams, ponds, drainage basins, and wetlands), groundwater, drinking water
supply, stream sediments, ambient air (including the air within buildings and
the air within other natural or man-made structures above or below ground),
plant and animal life, and any other natural resource.
"ENVIRONMENTAL CLAIMS" means any and all Claims (including any such
Claims involving toxic torts or similar liabilities in tort, whether based on
negligence or other fault, strict or absolute liability, or any other basis)
relating in any way to any Environmental Laws or Environmental Permits, or
arising from the presence, Release, or threatened Release (or alleged presence,
Release, or threatened Release) into the Environment of any Hazardous Materials,
including any and all Claims by any Governmental Authority or by any Person for
enforcement, cleanup, remediation, removal, response, remedial or other actions
or damages, contribution, indemnification, cost recovery, compensation, or
injunctive relief pursuant to any Environmental Law or for any property damage
or personal or bodily injury (including death) or threat of injury to health,
safety, natural resources, or the Environment.
"ENVIRONMENTAL LAWS" means all Laws relating to pollution or the
protection of human health, safety, the Environment, or damage to natural
resources, including Laws relating to Releases and threatened Releases or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of Hazardous Materials. Environmental
Laws include the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. Section 9601 et seq.; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.; the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; the Oil Pollution Act, 33 U.S.C. Section 2701 et seq.; the
Endangered Species Act, 16 U.S.C. Section 1531 et seq.; the National
Environmental Policy Act, 42 U.S.C. Section 4321, et seq.; the Occupational
Safety and Health Act, 29 U.S.C. Section 651 et seq. (to the extent relating in
any way to Hazardous Material or environmental matters); the Safe Drinking Water
Act, 42 U.S.C. Section 300f et seq.; Emergency Planning and Community
Right-to-Know Act, 42 U.S.C. Section 11001 et seq.; Atomic Energy Act, 42 U.S.C.
Section
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2014 et seq.; Nuclear Waste Policy Act, 42 U.S.C. Section 10101 et seq.; and
their state and local counterparts or equivalents, all as amended from time to
time, and regulations issued pursuant to any of those statutes.
"ENVIRONMENTAL PERMITS" means all permits, certifications, licenses,
franchises, approvals, consents, waivers, or other authorizations of
Governmental Authorities issued under or with respect to applicable
Environmental Laws and used or held by the Company for the operation of the
Company Assets.
"EXHIBITS" means the exhibits attached to this Agreement.
"GAAP" means generally accepted accounting principles in the United
States of America applied on a consistent basis.
"GOVERNMENTAL AUTHORITY" means any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United
States, any other nation or any domestic or foreign state, province, county,
city or other political subdivision or similar governing entity, and including
any governmental, quasi-governmental or non-governmental body administering,
regulating or having general oversight over gas, electricity, power or other
markets.
"GUARDIAN EXPANSION PROJECT" means Company's proposal to expand and
extend its existing interstate natural gas pipeline approximately 106 miles from
its current terminus near Ixonia, Wisconsin to a point near Green Bay,
Wisconsin, together with all related meter stations and compressor facilities.
"HAZARDOUS MATERIAL" means (i) any chemicals, materials, substances,
or wastes which are now or hereafter defined as or included in the definition of
"hazardous substance," "hazardous material," "hazardous waste," "solid waste,"
"toxic substance," "extremely hazardous substance," "pollutant," "contaminant,"
or words of similar import under any applicable Environmental Laws; (ii) any
petroleum, petroleum products (including crude oil or any fraction thereof),
natural gas, natural gas liquids, liquefied natural gas or synthetic gas useable
for fuel (or mixtures of natural gas and such synthetic gas), or oil and gas
exploration or production waste, polychlorinated biphenyls, asbestos-containing
materials, mercury, and lead-based paints; and (iii) any other chemical,
material, substances, waste, or mixture thereof which is prohibited, limited, or
regulated by Environmental Laws.
"INDEMNIFIED PARTY" has the meaning given to it in Section 10.6(a).
"INDEMNIFYING PARTY" has the meaning given to it in Section 10.6(a).
"INTELLECTUAL PROPERTY" means the following intellectual property
rights, both statutory and common law rights, if applicable: (a) copyrights, and
registrations and applications for registration thereof, (b) trademarks, service
marks, trade names, slogans, domain names, logos and trade dress, and
registrations and applications for registrations thereof, (c) patents, as well
as any reissued and reexamined patents and extensions corresponding to patents,
and any patent applications, as well as any related continuation, continuation
in part and divisional applications and patents issuing therefrom and (d) trade
secrets and confidential information,
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including ideas, designs, concepts, compilations of information, methods,
techniques, procedures, processes and other know-how, whether or not patentable.
"INTERIM PERIOD" has the meaning given to it in Section 5.1.
"KNOWLEDGE" when used in a particular representation herein (i) with
respect to Sellers, means the actual knowledge (as opposed to any constructive
or imputed knowledge) of the individuals listed in Schedule 1.1(a), without
inquiry, and (ii) with respect to Buyer, means the actual knowledge (as opposed
to any constructive or imputed knowledge) of the individuals listed in Schedule
1.1(b), without inquiry.
"LAWS" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law of any Governmental Authority.
"LIEN" means any mortgage, pledge, option, right of first refusal,
assessment, security interest, lien or other similar encumbrance.
"LLC AGREEMENT" has the meaning given to it in the Recitals.
"LOSS" means any and all judgments, liabilities, amounts paid in
settlement, damages, fines, penalties, deficiencies, losses and expenses
(including interest, court costs, reasonable fees of attorneys, accountants and
other experts or other reasonable expenses of litigation or other proceedings or
of any claim, default or assessment), but only to the extent such losses are not
covered by a payment from some third party or by insurance or otherwise
recoverable from third parties and are net of any associated benefits arising in
connection with such Loss, including any associated Tax benefits. For all
purposes in this Agreement the term "Losses" does not include any
Non-Reimbursable Damages.
"NON-COMPANY AFFILIATE" means any Affiliate of Sellers, except for the
Company.
"NON-REIMBURSABLE DAMAGES" has the meaning given to it in Section
10.5(b).
"ORDER" means any order, writ, injunction, judgment, plan or decree of
any Governmental Authority.
"PARTIES" means each of Buyer and Sellers.
"PASS-THROUGH TAX (OR TAXES)" means any tax or taxes for which the
Company is treated as a flow through entity or a disregarded entity for purposes
of such Tax.
"PERMITS" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted by a Governmental Authority.
"PERSON" means any natural person, corporation, general partnership,
limited partnership, limited liability company, proprietorship, other business
organization, trust, union, association or Governmental Authority.
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"POST-CLOSING TAX PERIOD" means any taxable period beginning on or
after the Closing Date or with respect to any taxable period that begins prior
to the Closing Date and ends after the Closing Date, the portion of such taxable
period on and after the Closing Date.
"PRE-CLOSING TAX PERIOD" means any taxable period ending prior to the
Closing Date or with respect to any taxable period that begins prior to the
Closing Date and ends after the Closing Date, the portion of such taxable period
ending on the day prior to the Closing Date.
"PURCHASE PRICE" has the meaning given to it in Section 2.2.
"RELEASE" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing of
Hazardous Materials into the Environment.
"REPRESENTATIVES" means as to any Person, its agents, officers,
managers, members, directors, employees, counsel, accountants, financial
advisers or consultants.
"RESTRICTED INFORMATION" has the meaning given to it in Section 11.6.
"SCHEDULES" means the schedules prepared by Sellers and attached to
this Agreement.
"SELLERS" has the meaning given to it in the introduction to this
Agreement.
"SELLER APPROVALS" has the meaning given to it in Section 3.3(b).
"SELLER CONSENTS" has the meaning given to it in Section 3.3(a).
"SELLER MARKS" has the meaning given to it in Section 5.3.
"STRADDLE PERIOD TAXES" has the meaning given to it in Section 6.1(c).
"SUPPORT OBLIGATIONS" has the meaning given to it in Section 5.4.
"TAX" or "TAXES" means any federal, state, local or foreign income,
gross receipts, ad valorem, sales and use, employment, social security,
disability, occupation, property, severance, value added, transfer, capital
stock, excise or other taxes imposed by or on behalf of any Taxing Authority,
including any interest, penalty, or addition thereto.
"TAX ITEMS" has the meaning given to it in Section 6.1(a).
"TAX RETURN" means any return, declaration, report, claim for refund
or information return or statement relating to Taxes, including any schedule or
attachment thereto.
"TAXING AUTHORITY" means, with respect to any Tax, the governmental
entity or political subdivision thereof that imposes such Tax, and the agency
(if any) charged with the collection of such Tax for such entity or subdivision.
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"TRANSFER TAXES" means all transfer, sales, use, goods and services,
value added, documentary, stamp duty, gross receipts, excise, registration
transfer and conveyance Taxes and other similar Taxes, duties, fees or charges.
ARTICLE II
PURCHASE AND SALE AND CLOSING
2.1 PURCHASE AND SALE. On the terms and subject to the conditions set
forth in this Agreement, Buyer agrees to purchase from Sellers, and Sellers
agree to sell to Buyer, the Company Interests, free and clear of all Liens.
2.2 PURCHASE PRICE. The aggregate purchase price for the Company
Interests shall be an amount (the "Purchase Price") equal to (i) Seventy Seven
Million Dollars ($77,000,000) plus (ii) Sixteen Thousand Four Hundred
Thirty-Eight Dollars ($16,438) for each calendar day, if any, from and after
(but not including) April 30, 2006 until (and including) the Closing Date.
2.3 CLOSING. The Closing shall take place at the offices of Foley &
Lardner LLP, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202 at 10:00 A.M.
local time, on the third Business Day after the conditions to Closing set forth
in Articles VII and VIII (other than the actions to be taken or items to be
delivered at Closing) have been satisfied or waived, or on such other date and
at such other time and place as Buyer and Sellers mutually agree. All actions
scheduled in this Agreement for the Closing Date shall be deemed to occur
simultaneously at the Closing. Subject to the provisions of Article IX, failure
to consummate the purchase and sale provided for in this Agreement on the date
determined pursuant to this Section 2.3 will not result in the termination of
this Agreement and will not relieve any Party of any obligation under this
Agreement.
2.4 PAYMENT OF PURCHASE PRICE. Upon the terms and subject to the
satisfaction or waiver of the conditions contained in this Agreement, in
consideration of the aforesaid sale of the Company Interests, Buyer will pay
Sellers at the Closing an amount in United States dollars in the aggregate equal
to the Purchase Price, by wire transfer of immediately available funds to one or
more accounts designated in writing by Sellers; it being understood that fifty
percent (50%) of the Purchase Price shall be paid to each of WEC and WPS
Investments.
2.5 CLOSING DELIVERIES BY SELLERS TO BUYER. At the Closing, Sellers
shall deliver, or shall cause to be delivered, to Buyer the following:
(a) the Assignment and Conveyance, duly executed by each Seller;
(b) copies of all consents and approvals obtained, made, or
delivered (as applicable) by Sellers in connection with the transactions
contemplated under this Agreement;
(c) the certificate of the Secretary or Assistant Secretary of
WEC, dated as of the Closing Date, setting forth and attesting to (i)
resolutions of the board of directors of WEC authorizing the execution,
delivery and performance of this Agreement
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and the consummation of the transactions contemplated hereby, and (ii) the
incumbency and signature of each officer of WEC executing this Agreement;
(d) the certificate of the Secretary or Assistant Secretary of
the manager of WPS Investments, dated as of the Closing Date, setting forth
and attesting to (i) resolutions of the manager of WPS Investments
authorizing the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, and (ii) the
incumbency and signature of each officer of the manager of WPS Investments
executing this Agreement;
(e) a certificate of an officer of each Seller, dated as of the
Closing Date, as to the matters set forth in Sections 7.1 and 7.2;
(f) a complete copy of each Seller's articles of organization or
articles of incorporation, as applicable, and all amendments thereto,
certified by the Wisconsin Department of Financial Institutions as of a
recent date, and a complete copy of each Seller's bylaws or Operating
Agreement (as applicable) and all amendments thereto, certified by the
Secretary or Assistant Secretary of each such Seller;
(g) a certificate from the Wisconsin Department of Financial
Institutions, dated no earlier than ten (10) Business Days prior to the
Closing Date, as to the active status of each Seller; and
(h) written evidence of satisfaction of the actions to be taken
by Sellers under Section 5.2 of this Agreement.
2.6 CLOSING DELIVERIES BY BUYER TO SELLERS. At the Closing, Buyer
shall deliver to Sellers the following:
(a) an amount equal to the Purchase Price, payable in accordance
with Section 2.4 hereof;
(b) the Assignment and Conveyance, duly executed by Buyer;
(c) copies of all consents and approvals obtained, made, or
delivered (as applicable) by Buyer in connection with the transactions
contemplated under this Agreement;
(d) the certificate of the Secretary or Assistant Secretary of
Buyer, dated as of the Closing Date, setting forth and attesting to (i)
resolutions of the Policy Committee of Buyer authorizing the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, and (ii) the incumbency and signature of
each officer of Buyer executing this Agreement;
(e) a certificate of an officer of Buyer, dated as of the Closing
Date, as to the matters set forth in Sections 8.1 and 8.2;
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(f) a complete copy of Buyer's certificate of limited partnership
agreement, and all amendments thereto, certified by the Secretary of State
of Buyer's jurisdiction of organization as of a date not more than ten (10)
Business Days prior to the Closing Date;
(g) a complete copy of Buyer's limited partnership agreement, and
all amendments thereto, certified by certificate of the Secretary or
Assistant Secretary of Buyer; and
(h) certificates from appropriate Governmental Authorities, dated
no earlier than ten (10) Business Days prior to the Closing Date, as to the
good standing and legal existence of Buyer in its jurisdiction of
formation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING SELLERS
Each of WEC and WPS Investments, in each case solely with respect to
itself, hereby severally and not jointly or jointly and severally represents and
warrants to Buyer that:
3.1 ORGANIZATION, STANDING. WEC is a corporation, duly incorporated,
validly existing and in active status under the Laws of the State of Wisconsin.
WPS Investments is a limited liability company, duly organized, validly existing
and in active status under the Laws of the State of Wisconsin.
3.2 AUTHORITY. Each Seller has all requisite corporate or limited
liability company power, as applicable, and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by each Seller of
this Agreement, and the performance by each Seller of its obligations hereunder,
have been duly and validly authorized by all necessary corporate or limited
liability action, as applicable, required on the part of such Seller. This
Agreement has been duly and validly executed and delivered by each Seller and
constitutes the legal, valid and binding obligation of each Seller enforceable
against such Seller in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other similar Laws relating to or affecting the rights
of creditors generally, or by general equitable principles (regardless of
whether enforcement is considered in a proceeding at law or in equity).
3.3 CONSENTS AND APPROVALS; NO VIOLATION.
(a) Except as set forth in Schedule 3.3(a) (the consents referred
to in Schedule 3.3(a) are collectively referred to as the "SELLER
CONSENTS") and other than the Seller Approvals, neither the execution and
delivery of this Agreement by each Seller nor the consummation by each
Seller of the transactions contemplated hereby will (i) conflict with or
result in any breach or violation of any provision of the Charter Documents
of such Seller; or (ii) require any material consent, approval,
authorization or permit of, or filing with or notification to, any Person,
or (iii) result in a material default (or give rise to any right of
termination, consent, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, material
agreement or
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other instrument or obligation to which such Seller is a party or by which
it may be bound, or (iv) constitute material violations of any Law,
regulation, order, judgment or decree applicable to such Seller.
(b) Except as set forth in Schedule 3.3(b) (the filings and
approvals referred to in Schedule 3.3(b) are collectively referred to as
the "SELLER APPROVALS"), no material consent or approval of, filing with,
or notice to, any Governmental Authority by or for any Seller is necessary
for the execution and delivery of this Agreement by such Seller, or the
consummation by such Seller of the transactions contemplated hereby, other
than such consents, approvals, filings or notices which, if not obtained or
made, will not prevent such Seller from performing its material obligations
hereunder.
3.4 CAPITALIZATION. Each of WEC and WPS Investments owns and holds of
record and is the beneficial owner of the Company Interests as set forth in
Schedule 3.4, free and clear of all Liens except Liens created under the LLC
Agreement.
3.5 LEGAL PROCEEDINGS. Neither Seller has been served with notice of
any Claim, and to each Seller's Knowledge none is threatened against such
Seller, which seeks a writ, judgment, order or decree restraining, enjoining or
otherwise prohibiting or making illegal any of the transactions contemplated by
this Agreement.
3.6 BROKERS. No Seller has any liability or obligation to pay fees or
commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which Buyer could become liable or obligated.
3.7 COMPLIANCE WITH LAWS AND ORDERS. Each of Sellers is not in
violation of or in default under any Law or order applicable to it or its Assets
the effect of which, individually or in the aggregate, could reasonably be
expected to hinder or prevent such Seller from performing its obligations
hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to each Seller that:
4.1 ORGANIZATION; STANDING.. Buyer is a limited partnership duly
formed under the Laws of the State of Delaware and has all requisite limited
partnership power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
Buyer is duly qualified or licensed to do business in each other jurisdiction
where the actions required to be performed by it hereunder makes such
qualification or licensing necessary, except in those jurisdictions where the
failure to be so qualified or licensed would not reasonably be expected to
result in a material adverse effect on Buyer's ability to perform its
obligations hereunder.
4.2 AUTHORITY. The execution and delivery by Buyer of this Agreement
and the performance by Buyer of its obligations hereunder have been duly and
validly authorized by all limited partnership action on behalf of Buyer. This
Agreement has been duly and validly executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer
10
enforceable against Buyer in accordance with its terms except as the same may be
limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other similar Laws relating to or affecting the rights
of creditors generally, or by general equitable principles.
4.3 CONSENTS AND APPROVALS; NO VIOLATION.
(a) Except as set forth in Schedule 4.3(a) (the consents referred
to in Schedule 4.3(a) are collectively referred to as the "BUYER CONSENTS")
and other than the Buyer Approvals, neither the execution and delivery of
this Agreement by Buyer nor the consummation by Buyer of the transactions
contemplated hereby will (i) conflict with or result in any breach or
violation of any provision of the certificate of limited partnership or
limited partnership agreement of Buyer; or (ii) require any material
consent, approval, authorization or permit of, or filing with or
notification to, any Person; or (iii) result in a material default (or give
rise to any right of termination, consent, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, material agreement or other instrument or obligation
to which Buyer is a party or by which it may be bound; or (iv) constitute
material violations of any Law, regulation, order, judgment or decree
applicable to Buyer.
(b) Except as set forth in Schedule 4.3(b) (the filings and
approvals referred to in Schedule 4.3(b) are collectively referred to as
the "BUYER APPROVALS"), no material consent or approval of, filing with, or
notice to, any Governmental Authority by or for Buyer is necessary for the
execution and delivery of this Agreement by Buyer, or the consummation by
Buyer of the transactions contemplated hereby, other than such consents,
approvals, filings or notices which, if not obtained or made, will not
prevent Buyer from performing its material obligations hereunder.
4.4 LEGAL PROCEEDINGS. Buyer has not been served with notice of any
Claim, and to Buyer's Knowledge, none is threatened, against Buyer which seeks a
writ, judgment, order or decree restraining, enjoining or otherwise prohibiting
or making illegal any of the transactions contemplated by this Agreement.
4.5 COMPLIANCE WITH LAWS AND ORDERS. Buyer is not in violation of or
in default under any Law or order applicable to Buyer or its Assets the effect
of which, individually or in the aggregate, could reasonably be expected to
hinder or prevent Buyer from performing its obligations hereunder.
4.6 BROKERS. Buyer does not have any liability or obligation to pay
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Sellers could become
liable or obligated.
4.7 ACQUISITION AS INVESTMENT. Buyer is acquiring the Company
Interests for its own account as an investment without the present intent to
sell, transfer or otherwise distribute the same to any other Person. Buyer has
made, independently and without reliance on Sellers (except to the extent that
Buyer has relied on the representation and warranties of Sellers in this
Agreement), its own analysis of the Company Interests, the Company and the
Company
11
Assets for the purpose of acquiring the Company Interests, and Buyer has had
reasonable and sufficient access to documents, other information and materials
as it considers appropriate to make its evaluations. Buyer acknowledges that the
Company Interests are not registered pursuant to the Securities Act of 1933, as
amended (the "1933 ACT"), and that none of the Company Interests may be
transferred, except pursuant to an applicable exception under the 1933 Act.
Buyer is an "accredited investor" as defined under Rule 501 promulgated under
the 1933 Act.
4.8 FINANCIAL RESOURCES. Buyer has cash or credit available, and will
have cash available at the Closing, to enable it to pay the Purchase Price and
to permit Buyer to perform all of its obligations under this Agreement and the
transactions contemplated hereby.
ARTICLE V
COVENANTS
The Parties hereby covenant and agree as follows:
5.1 REGULATORY AND OTHER APPROVALS; EFFORTS. From the date hereof
until Closing (the "INTERIM PERIOD"):
(a) The Parties will, in order to consummate the transactions
contemplated hereby, (i) take all commercially reasonable steps necessary
or desirable, and proceed diligently and in good faith and use all
commercially reasonable efforts, as promptly as practicable, to obtain the
Seller Approvals and the Buyer Approvals, and to make all required filings
with, and to give all required notices to, Governmental Authorities in form
and substance satisfactory to Sellers and Buyer, and (ii) provide such
other information and communications to such Governmental Authorities or
other Persons as such Governmental Authorities or other Persons may
reasonably request in connection therewith. Without limiting the generality
of the foregoing, the Parties shall provide, and cause their Affiliates to
provide, true and accurate information in a timely manner with respect to
all filings with and notices to Governmental Authorities.
(b) The Parties will provide prompt notification to each other
when any such approval referred to in clause (a)(i) above is obtained,
taken, made or given, as applicable, and will advise each other of any
material communications with any Governmental Authority or other Person
regarding any of the transactions contemplated by this Agreement.
(c) In furtherance of the foregoing covenants, each Party shall
prepare, as soon as is practical following the execution of this Agreement,
all necessary filings in connection with the transactions contemplated by
this Agreement. The Parties shall cooperate in the preparation and
submission of the filings. The filings shall be submitted as soon as
practicable, but in no event later than ten (10) Business Days after the
execution hereof for filings under the HSR Act. The Parties shall request
expedited treatment of the HSR Act filings, shall promptly make any
appropriate or necessary subsequent or supplemental filings and shall
cooperate in the preparation of such filings
12
as is reasonably necessary and appropriate. Notwithstanding anything to the
contrary herein, Buyer will be responsible for the filing fees under the
HSR Act. Notwithstanding any other terms or provisions of this Agreement,
in no event shall Buyer be deemed to have any obligation to dispose of any
Assets (including any Company Assets) or to enter into any agreement with
any Person in order to obtain early termination or expiration of the
waiting period under the HSR Act or to obtain any other approvals from any
Governmental Authorities.
(d) Upon the terms and subject to the conditions of this
Agreement, each of the Parties shall use all its commercially reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or advisable consistent with
applicable Laws and Orders to cause the fulfillment of the conditions to
Closing set forth herein and to consummate and make effective in the most
expeditious manner practicable the transactions contemplated hereby.
5.2 RESIGNATION OF MEMBERS, MANAGERS AND OFFICERS. At the time of
Closing, each Seller shall cause the resignation of all members, managers and
officers, as applicable, nominated or appointed by such Seller or its Affiliates
to any board or operating, management or other committee relating to the Company
or established under the Charter Documents.
5.3 USE OF CERTAIN NAMES. Within fifteen (15) days following Closing,
Buyer shall cause the Company to cease using the words "Wisconsin Energy",
"WEC", "WICOR", "WPS", "WPS Investments" or any word or expression similar
thereto or constituting an abbreviation or extension thereof (the "SELLER
MARKS"), including eliminating such words from the Company Assets and disposing
of any unused stationery and literature of the Company bearing such words, and
thereafter, Buyer, the Company and their Affiliates shall not use any logos,
trademarks, trade names, patents or other Intellectual Property rights belonging
to Sellers or any Affiliate thereof, and Buyer acknowledges that it has no
rights whatsoever to use such Intellectual Property.
5.4 SUPPORT OBLIGATIONS.
(a) Buyer recognizes that Sellers and certain of their Affiliates
have provided credit support to the Company pursuant to the credit support
obligations set forth in Schedule 5.4(a) (the "SUPPORT OBLIGATIONS").
(b) Prior to Closing, Buyer shall use commercially reasonable
efforts to effect the full and unconditional release of Sellers and their
Affiliates from the Support Obligations, including by:
(i) providing substitute guarantees with terms equal to or
more favorable to the counterparty than the terms of existing
guarantees;
(ii) furnishing letters of credit containing terms and
conditions that are substantially identical to the terms and
conditions of existing letters of credit and from lending
institutions that have a Credit Rating
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commensurate with or better than that of lending institutions for
existing letters of credit; or
(iii) posting surety or performance bonds issued by a Person
having a net worth or a Credit Rating at least equal to those of
the issuer of existing surety or performance bonds, and which
replacement surety or performance bonds contain terms and
conditions that are substantially identical to the terms and
conditions of existing surety or performance bonds.
(c) Prior to Closing, Buyer shall use commercially reasonable
efforts to cause the beneficiary or beneficiaries of the Support
Obligations to terminate and redeliver to Sellers each original copy of
each original guarantee, letter of credit or other instrument constituting
or evidencing the Support Obligations.
(d) If Buyer is not successful, following the use of commercially
reasonable efforts, in obtaining the complete and unconditional release of
Sellers and their Affiliates from the Support Obligations prior to Closing,
then Buyer shall continue to use commercially reasonable efforts after the
Closing to cause such complete and unconditional release. Buyer shall
indemnify and hold Sellers and their Affiliates harmless from and after the
Closing Date for any and all Losses arising out of or relating to such
Support Obligations. Furthermore, Buyer agrees, for so long as any Support
Obligation remains outstanding, not to, and to cause the Company not to,
effect any amendments or modifications or any other changes to the
Contracts to which any of such Support Obligations relate, or to otherwise
take any action that would effect any change to such Contracts, in either
case, in a manner that would increase the liability of Sellers or their
Affiliates under any Support Obligation, without each Seller's prior
written consent.
(e) Notwithstanding anything in this Agreement to the contrary,
during the Interim Period, Buyer shall have the right to contact and have
discussions with each beneficiary of a Support Obligation in order to
satisfy its obligations under this Section 5.4; provided, that Sellers
shall have the right to have one of their Representatives present during
any such contact or discussion; Buyer shall only contact and hold
discussions with such beneficiaries through Representatives of Buyer
previously approved by Sellers; and Buyer shall cause such Representatives
to comply with all procedures and protocols regarding such contacts and
discussions that reasonably may be established by Sellers.
5.5 FURTHER ASSURANCES. Subject to the terms and conditions of this
Agreement, at any time, or from time to time, after the Closing, at any Party's
request and without further consideration, the other Party shall execute and
deliver to such Party such other instruments of sale, transfer, conveyance,
assignment and confirmation, provide such materials and information and take
such other actions as such Party may reasonably request in order to consummate
the transactions contemplated by this Agreement.
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5.6 SELLERS' COVENANTS AND CLOSING CONDITIONS. Except as contemplated
by this Agreement or with the prior written consent of Buyer, during the Interim
Period, Sellers shall use commercially reasonable efforts to:
(a) take all actions to ensure that the representations and
warranties in Article III hereof remain true and correct in all material
respects at the Closing;
(b) promptly advise Buyer of any facts of which Sellers have
Knowledge that would cause any of Buyer's representations and warranties
herein to be untrue in any material respect; and
(c) bring about, as soon as practical after the date hereof, the
satisfaction of all the conditions set forth in Article VIII.
5.7 BUYER'S COVENANTS AND CLOSING CONDITIONS. Except as contemplated
by this Agreement or with the prior written consent of Sellers, during the
Interim Period, Buyer shall use commercially reasonable efforts to:
(a) take all actions to ensure that the representations and
warranties in Article IV remain true and correct in all material respects
at the Closing;
(b) promptly advise Sellers of any facts of which Buyer has
Knowledge that would cause any of Sellers' representations and warranties
herein to be untrue in any material respect;
(c) bring about, as soon as practical after the date hereof, the
satisfaction of all the conditions set forth in Article VII.
ARTICLE VI
TAX MATTERS
6.1 PREPARATION AND FILING OF TAX RETURNS.
(a) With respect to any Pass-Through Tax, each of the Sellers and
the Buyer shall cause to be included in the Tax Returns of such Party (or
its Consolidated Group) for any Pre-Closing Tax Period, and Buyer shall
cause to be included in the Tax Returns of Buyer for any Post-Closing Tax
Period, all items of income, gain, deduction, loss, or credit ("Tax Items")
of the Company that are allocable to such respective period, shall each
cause such respective Tax Returns to be timely filed with the appropriate
Taxing Authorities, and shall each be responsible for the timely payment
(and entitled to any refund) of all such Pass-Through Taxes due or
attributable to their respective Tax Returns. In calculating such
Pass-Through Taxes, the Tax Items of the Company shall be allocated between
the Pre-Closing Tax Period and the Post-Closing Tax Period based on an
interim closing of the books of the Company as of the close of business on
the Closing Date.
(b) With respect to any Tax Return covering a taxable period
beginning on or before the Closing Date and ending after the Closing Date
that is
15
required to be filed after the Closing Date with respect to the Company,
Buyer shall cause such Tax Return to be prepared in a manner consistent
with practices followed in prior years, except as otherwise required by Law
or fact, and shall cause to be included in such Tax Return all Tax Items
required to be included therein. At least thirty (30) days prior to the due
date (including extensions) of such Tax Return Buyer shall furnish a copy
of such Tax Return to Sellers, and (in the case of a Tax Return that does
not relate to a Pass-Through Tax) Buyer shall also furnish to Sellers a
statement setting forth the amount of Taxes attributable to the Pre-Closing
Tax Period ("STRADDLE PERIOD TAXES") and each Seller's proportionate share
of such Straddle Period Taxes. Buyer shall permit Sellers to review and
comment on any Tax Return required to be furnished by Buyer to Sellers
under this section 6.2(b). Buyer and Sellers shall work in good faith to
agree upon the manner in which any such Tax Return is prepared (including
the treatment of any Tax Items on such Tax Return) and the Taxes
attributable to the Pre-Closing Tax Period and, failing such agreement,
shall resolve the matter in a manner consistent with the dispute resolution
procedures described in Section 11.15 of this Agreement. Straddle Period
Taxes shall be calculated as though the taxable year of the Company
terminated as of the close of business on the Closing Date; provided,
however, that in the case of a Tax not based on income, receipts, proceeds,
profits or similar items, such Straddle Period Taxes shall be equal to the
amount of Tax for the taxable period multiplied by a fraction, the
numerator of which shall be the number of days from the beginning of the
taxable period through the Closing Date and the denominator of which shall
be the number of days in the taxable period.
6.2 COOPERATION ON TAX MATTERS.
(a) After the Closing Date, Sellers and Buyer shall grant each
other (or their respective designees), and Buyer shall cause the Company to
grant to Sellers (or their designees), access at all reasonable times to
all of the information, books and records relating to the Company in its
possession (including work papers and correspondence with Taxing
Authorities), and shall afford such party the right (at such party's
expense) to take extracts therefrom and to make copies thereof, to the
extent reasonably necessary to permit preparation of Tax Returns, to
conduct negotiations with Taxing Authorities, and to implement the
provisions of, or to investigate or defend any claims between the Parties
arising under, this Agreement.
(b) Each of Buyer and Sellers will preserve and retain all
schedules, work papers and other documents relating to any Tax Returns of
or with respect to the Company or to any claims, audits or other
proceedings affecting the Company until the expiration of the statute of
limitations (including extensions) applicable to the taxable period to
which such documents relate or until the final determination of any
controversy with respect to such taxable period, and until the final
determination of any payments that may be required with respect to such
taxable period under this Agreement.
(c) Buyer and Sellers agree, upon request, to use their
reasonable best efforts to obtain any certificate or other document from
any Governmental Authority or any other person as may be necessary to
mitigate, reduce or eliminate any tax that could
16
be imposed (including, but not limited to, with respect to the transactions
contemplated hereby).
(d) Without the prior written consent of Sellers, which consent
shall not unreasonably be withheld, Buyer shall not permit the Company to
amend any Tax Return for a taxable period that includes any period of time
before the Closing Date.
6.3 TRANSFER TAXES. Sellers and Buyer shall each be liable for and
shall each pay fifty percent (50%) of all applicable Transfer Taxes as a result
of the sale of the Company Interests pursuant to this Agreement.
ARTICLE VII
BUYER'S CONDITIONS TO CLOSING
The obligation of Buyer to consummate the transactions under this
Agreement is subject to the fulfillment of each of the following conditions
(except to the extent waived in writing by Buyer in its sole discretion):
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by Sellers in Article III of this Agreement shall be true in all material
respects on and as of the Closing Date as though made on and as of the Closing
Date or, in the case of representations and warranties made as of a specified
date earlier than the Closing Date, on and as of such earlier date.
7.2 PERFORMANCE. Sellers shall have performed and complied, in all
material respects, with the agreements, covenants and obligations required by
this Agreement to be so performed or complied with by Sellers at or before the
Closing.
7.3 DELIVERIES. Sellers shall have made all deliveries required of
them under Section 2.5.
7.4 ORDERS AND LAWS. There shall not be any litigation or proceedings
(filed by a Person other than Buyer or its Affiliates) or Law or order
restraining, enjoining or otherwise prohibiting or making illegal or threatening
to restrain, enjoin or otherwise prohibit or make illegal the consummation of
any of the transactions contemplated by this Agreement.
7.5 GOVERNMENTAL APPROVALS. The Buyer Approvals shall have been duly
obtained, made or given.
7.6 GUARDIAN EXPANSION PROJECT. Each Seller's representative to the
Management Committee of the Company shall have voted in favor of the
construction and funding of the Guardian Expansion Project, subject to the
receipt by Company of (i) all necessary final regulatory authorizations,
approvals, and permits for the Guardian Expansion Project, and (ii) any required
financing and construction commitments. Buyer understands and agrees that such
votes may be cast immediately prior to Closing on the Closing Date, and that
neither WPS Investments nor WEC shall be required to fund any amounts in respect
of the Guardian Expansion Project prior to, on, or after the Closing Date as a
result of such votes unless such votes are cast and WPS Investments and WEC fail
to convey the Company Interests to
17
Buyer at the Closing upon satisfaction or waiver of all other conditions to
Closing set forth in Articles VII and VIII. In addition, the Company shall have
received, in form and substance reasonably satisfactory to Buyer, evidence of
the fulfillment of the condition specified in each of the following: (i) Section
7.1(b)(i)of the Precedent Agreement dated February 3, 2006 between the Company
and Wisconsin Electric Power Company, (ii) Section 7.1(b)(i) of the Precedent
Agreement dated February 3, 2006 between the Company and Wisconsin Public
Service Corporation, and (iii) Section 8.1(b)(i) of the Precedent Agreement
dated February 3, 2006 between the Company and Wisconsin Gas LLC.
ARTICLE VIII
SELLERS' CONDITIONS TO CLOSING
The obligation of Sellers to consummate the transactions under this
Agreement is subject to the fulfillment of each of the following conditions
(except to the extent waived in writing by Sellers in their sole discretion):
8.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by Buyer in Article IV of this Agreement shall be true in all material
respects on and as of the Closing Date as though made on and as of the Closing
Date or, in the case of representations and warranties made as of a specified
date earlier than the Closing Date, on and as of such earlier date.
8.2 PERFORMANCE. Buyer shall have performed and complied, in all
material respects, with the agreements, covenants and obligations required by
this Agreement to be so performed or complied with by Buyer at or before the
Closing.
8.3 DELIVERIES. Buyer shall have taken all actions and made all
deliveries required of it under Section 2.6.
8.4 ORDERS AND LAWS. There shall not be any litigation or proceedings
(filed by a Person other than Sellers or their Affiliates) or Law or order
restraining, enjoining or otherwise prohibiting or making illegal or threatening
to restrain, enjoin or otherwise prohibit or make illegal the consummation of
any of the transactions contemplated by this Agreement.
8.5 GOVERNMENTAL APPROVALS. The Seller Approvals shall have been duly
obtained, made or given.
8.6 CONSENTS. The Seller Consents shall have been obtained, made or
given and shall be in full force and effect on terms and conditions acceptable
to Sellers.
ARTICLE IX
TERMINATION
9.1 TERMINATION.
(a) This Agreement may be terminated at any time prior to the
Closing Date by mutual written agreement of Sellers and Buyer.
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(b) This Agreement may be terminated by Buyer if there has been a
material violation or breach by Sellers of any covenant, agreement,
representation or warranty contained in this Agreement which has rendered
the satisfaction of any condition to the obligations of Buyer to effect the
Closing impossible and such violation or breach is not cured by the earlier
of the Closing Date or the date fifteen (15) days after receipt by Sellers
of notice specifying particularly such violation or breach, and such
violation or breach has not been waived by Buyer.
(c) This Agreement may be terminated by Sellers, if there has
been a material violation or breach by Buyer of any covenant, agreement,
representation or warranty contained in this Agreement which has rendered
the satisfaction of any condition to the obligations of Sellers to effect
the Closing impossible and such violation or breach is not cured by the
earlier of the Closing Date or the date fifteen (15) days after receipt by
Buyer of notice specifying particularly such violation or breach, and such
violation or breach has not been waived by Sellers.
(d) This Agreement may be terminated by Buyer or Sellers, upon
written notice to the other Party, (i) at any time prior to the Closing, if
any court of competent jurisdiction shall have issued an order, judgment or
decree permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby, and such order,
judgment or decree shall have become final and nonappealable; (ii) at any
time prior to the Closing, if any Law shall have been enacted or issued by
any Governmental Authority and shall remain in effect prohibiting the
consummation of the transactions contemplated hereby; or (iii) at any time
after August 31, 2006 or such later date as the Parties shall have mutually
agreed upon, if the Closing shall have not occurred on or before such date;
provided, however, that the right to terminate this Agreement under this
Section 9.1(d)(iii) 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.
9.2 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 9.1 hereof, written notice thereof shall
forthwith be given by the terminating Party to the other Party, whereupon the
liabilities of the Parties hereunder will terminate, except as otherwise
expressly provided in this Agreement, and thereafter none of the other Parties
shall have any recourse against any other Party by reason of this Agreement and
except that termination of this Agreement will not affect any liability of any
Party for any breach of this Agreement prior to termination, or any breach at
any time of the provisions hereof surviving termination.
ARTICLE X
INDEMNIFICATION, LIMITATIONS OF
LIABILITY AND WAIVERS
10.1 INDEMNIFICATION.
(a) Subject to the limitations set forth elsewhere in this
Article X, after the Closing, each Seller agrees to severally and not
jointly or jointly and severally
19
indemnify and hold Buyer, its Affiliates, and their respective officers,
directors, members, managers, shareholders and employees (collectively,
"BUYER INDEMNIFIED PERSONS") harmless from and against any and all Losses
incurred by such Buyer Indemnified Persons directly resulting from any of
the following:
(i) any breach of a representation or warranty made by such
Seller in this Agreement; and
(ii) the breach by such Seller of, or default in the
performance by such Seller of, any covenant, agreement or
obligation to be performed by such Seller pursuant to this
Agreement.
(b) Subject to the limitations set forth elsewhere in this
Article X, after the Closing, Buyer hereby agrees to indemnify and hold
each Seller, its Affiliates, and their respective officers, directors,
members, managers, shareholders and employees (collectively, "SELLER
INDEMNIFIED PERSONS"), harmless from and against any and all Losses
incurred by such Seller Indemnified Persons directly resulting from any of
the following:
(i) any breach of a representation or warranty made by Buyer
in this Agreement;
(ii) the breach by Buyer of, or default in the performance
by Buyer of, any covenant, agreement or obligation to be
performed by Buyer pursuant to this Agreement; and
(iii) except to the extent resulting directly from the
willful misconduct or gross negligence of such Seller Indemnified
Persons prior to the Closing Date, the conduct of the business of
the Company at any time after July 1, 2004, including without
limitation any compliance or non-compliance by the Company with
any past, present, and future Environmental Laws or Environmental
Permits, the presence, Release, or threatened Release of
Hazardous Materials at any location whatsoever, or any
Environmental Claim with respect to the Company.
(c) Notwithstanding anything in Section 10.(b)(iii) to the
contrary, Buyer shall not be subject to any liability under Section
10.1(b)(iii) for any Loss arising from (i) any non-compliance by the
Company with any Environmental Laws or Environmental Permits, (ii) the
presence, Release, or threatened Release of Hazardous Materials by the
Company at any location whatsoever, (iii) any Environmental Claim with
respect to the Company, or (iv) any material violation by the Company of
any Laws or Orders, in each case to the extent that Sellers had Knowledge
of the specific facts which give rise to such Loss prior to the date of
this Agreement.
(d) The indemnification obligations of Sellers arising out of
this Agreement shall be several and not joint or joint and several.
20
10.2 LIMITATIONS OF LIABILITY. Notwithstanding anything to the
contrary in this Agreement:
(a) a breach of a representation or warranty in this Agreement in
connection with any single item or group of related items that results in
Losses of less than $50,000 shall be deemed, for all purposes, not to be a
breach of such representation or warranty; provided, however, that such
threshold shall not apply to any of the matters described in Sections 3.1,
3.2, 3.4, 3.6, 4.1, 4.2 and 4.6;
(b) if a non-breaching Party fails to provide written notice to a
breaching Party of an alleged breach of a representation or warranty in
Articles III or IV within the time periods specified in Section 10.3, which
notice specifies in reasonable detail the factual basis of the alleged
breach, such alleged breach shall be deemed, for all purposes, not to be a
breach of such representation or warranty;
(c) neither Sellers nor Buyer shall have any liability for
breaches of representations and warranties in this Agreement until the
aggregate amount of all Losses incurred by the Buyer Indemnified Persons or
the Seller Indemnified Persons, as the case may be, equals or exceeds
$1,000,000 (the "DEDUCTIBLE AMOUNT"), in which event Sellers or Buyer, as
the case may be, shall be liable for Losses only to the extent they are in
excess of the Deductible Amount; provided, however, that such threshold
shall not apply to any of the matters described in Sections 3.1, 3.2, 3.4,
3.6, 4.1, 4.2 and 4.6;
(d) in no event shall Sellers' or Buyer's aggregate liability
arising out of or relating to breaches of representations and warranties
set forth in Articles III and IV of this Agreement, exceed ten percent
(10%) of the Purchase Price; provided, however, that if breaches of the
representations and warranties contained in Sections 3.2, 3.4, 3.6, 4.2 and
4.6 would result in liabilities exceeding ten percent (10%) of the Purchase
Price, then in lieu of such ten percent (10%) maximum, the aggregate
liability of Sellers (on an aggregate, combined basis) or Buyer (as
applicable) will instead not exceed the Purchase Price;
(e) the Parties shall have a duty to mitigate any Loss as to
which an indemnity applies hereunder
10.3 LIMITED CLAIM PERIOD.. No Party shall make or bring any claim
subsequent to the second anniversary of the Closing Date for indemnification
relating to or pursuant to the representations and warranties contained in
Articles III and IV. Each of the covenants and agreements of the Parties shall
survive in accordance with their respective terms.
10.4 WAIVER OF OTHER REPRESENTATIONS.
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO THAT NONE OF
SELLERS, BUYER NOR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES
HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, INCLUDING ANY IMPLIED REPRESENTATION
21
OR WARRANTY AS TO CONDITION, MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE SUBJECT COMPANY INTERESTS,
THE COMPANY OR ANY OF THE COMPANY ASSETS, OR ANY PART THEREOF, EXCEPT THOSE
SPECIFIC REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLES III AND IV.
IN PARTICULAR, AND WITHOUT IN ANY WAY LIMITING THE FOREGOING, NO PARTY
MAKES ANY REPRESENTATION OR WARRANTY TO ANY OTHER PARTY WITH RESPECT TO ANY
FINANCIAL PROJECTIONS OR FORECASTS RELATING TO THE COMPANY.
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLERS'
INTERESTS IN THE COMPANY ASSETS ARE BEING TRANSFERRED THROUGH THE SALE OF
THE SUBJECT COMPANY INTERESTS "AS IS, WHERE IS, WITH ALL FAULTS," AND
SELLERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE
COMPANY AND ITS ASSETS OR THE PROSPECTS (FINANCIAL OR OTHERWISE), RISKS AND
OTHER INCIDENTS OF THE COMPANY AND ITS ASSETS.
10.5 WAIVER OF REMEDIES.
(a) With the exception of Claims based upon fraud, from and after
the Closing, the Parties hereby agree to limit their recourse for all
matters, and not make any Claim for any Loss or other matter, under,
relating to or arising out of this Agreement or any other document,
agreement, certificate or other matter delivered pursuant hereto, whether
based on contract, tort, strict liability, other Laws or otherwise, except
for claims for indemnification pursuant to Article X.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, NO PARTY SHALL BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY,
INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR LOST PROFITS WHETHER
BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE AND
WHETHER OR NOT ARISING FROM THE OTHER PARTY'S SOLE, JOINT OR CONCURRENT
NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT ("NON-REIMBURSABLE DAMAGES");
provided, however, that this Section 10.5(b) shall not limit a Party's
right to indemnification for such damages under this Article X to the
extent such Party is required to pay such damages to a third party in
connection with a matter for which such Party is otherwise entitled to
indemnification under this Article X.
10.6 PROCEDURE FOR INDEMNIFICATION - THIRD-PARTY CLAIMS.
(a) If any Party shall claim indemnification hereunder arising
from any Claim of a third party, the Party seeking indemnification (the
"INDEMNIFIED PARTY") shall notify the Party from whom indemnification is
sought (the "INDEMNIFYING PARTY") in writing of the basis for such Claim
setting forth the nature of the Claim in
22
reasonable detail. The failure of the Indemnified Party to so notify the
Indemnifying Party shall not relieve the Indemnifying Party of any
indemnification obligation hereunder except to the extent that the defense
of such Claim is prejudiced by the failure to give such notice.
(b) If any proceeding is brought by a third party against an
Indemnified Party and the Indemnified Party gives notice to the
Indemnifying Party pursuant to Section 10.6(a), the Indemnifying Party
shall, unless the Claim involves Taxes, be entitled to participate in such
proceeding and, to the extent that it wishes, to assume the defense of such
proceeding, if (i) the Indemnifying Party provides written notice to the
Indemnified Party that the Indemnifying Party intends to undertake such
defense, (ii) the Indemnifying Party conducts the defense of the
third-party Claim actively and diligently with counsel reasonably
satisfactory to the Indemnified Party and (iii) if the Indemnifying Party
is a party to the proceeding, the Indemnifying Party has not determined in
good faith that joint representation would be inappropriate because of a
conflict in interest. The Indemnified Party shall, in its sole discretion,
have the right to employ separate counsel (who may be selected by the
Indemnified Party in its sole discretion) in any such action and to
participate in the defense thereof, and the fees and expenses of such
counsel shall be paid by such Indemnified Party. The Indemnified Party
shall fully cooperate with the Indemnifying Party and its counsel in the
defense or compromise of such Claim. If the Indemnifying Party assumes the
defense of a proceeding, no compromise or settlement of such Claims may be
effected by the Indemnifying Party without the Indemnified Party's consent
unless (A) there is no finding or admission of any violation of Law or any
violation of the rights of any Person and no effect on any other Claims
that may be made against the Indemnified Party and (B) the sole relief
provided is monetary damages that are paid in full by the Indemnifying
Party.
(c) If (i) notice is given to the Indemnifying Party of the
commencement of any third-party legal proceeding and the Indemnifying Party
does not, within ten (10) days after the Indemnified Party's notice is
given, give notice to the Indemnified Party of its election to assume the
defense of such legal proceeding, (ii) any of the conditions set forth in
clauses (i) through (iii) of Section 10.6(b) above become unsatisfied or
(iii) an Indemnified Party determines in good faith that there is a
reasonable probability that a legal proceeding may adversely affect it
other than as a result of monetary damages for which it would be entitled
to indemnification from the Indemnifying Party under this Agreement, the
Indemnified Party shall (upon notice to the Indemnifying Party) have the
right to undertake the defense of such claim, but shall not compromise or
settle such claim without the prior consent of the Indemnifying Party, such
consent not to be unreasonably withheld or delayed; provided that the
Indemnifying Party shall reimburse the Indemnified Party for the costs of
defending against the third-party claim (including reasonable attorneys'
fees and expenses) and the Indemnifying Party shall remain responsible for
any indemnifiable amounts arising from or related to such third-party claim
subject to the limitations provided in this Article X. The Indemnifying
Party may elect to participate in such legal proceedings, negotiations or
defense at any time at its own expense.
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ARTICLE XI
MISCELLANEOUS
11.1 NOTICES.
(a) Unless this Agreement specifically requires otherwise, any
notice, demand or request provided for in this Agreement, or served, given
or made in connection with it, shall be in writing and shall be deemed
properly served, given or made if delivered in person or sent by facsimile
or sent by registered or certified mail, postage prepaid, or by a
nationally recognized overnight courier service that provides a receipt of
delivery, in each case, to the Parties at the addresses specified below:
If to Buyer, to:
Northern Border Intermediate Limited Partnership
13710 FNB Parkway
Omaha, NE 68154
Attn: Chief Executive Officer
Facsimile No.: (402) 492-7482
with copies to (which shall not constitute notice):
Northern Plains Natural Gas Company, LLC
13710 FNB Parkway
Omaha, NE 68154
Attn: General Counsel
Facsimile No.: (402) 492-7480
If to Sellers, to:
WPS Investments, LLC
c/o WPS Resources Corporation
700 N. Adams Street
Green Bay, WI 54301
Attn: Barth J. Wolf, Esq.
Facsimile No.: (920) 433-1526
Wisconsin Energy Corporation
231 W. Michigan Street
Milwaukee, WI 53203
Attn: Allen L. Leverett, Chief Financial Officer
Facsimile No.: (414) 221-2435
with copies to (which shall not constitute notice):
24
Foley & Lardner LLP
777 E. Wisconsin Avenue
Milwaukee, WI 53202
Attn: Mary Ann C. Halloin, Esq.
Facsimile No.: (414) 297-4900
Wisconsin Energy Corporation
231 W. Michigan Street
Milwaukee, WI 53203
Attn: James C. Fleming, Esq., General Counsel
Facsimile No.: (414) 221-2185
AND
Attn: Anne K. Klisurich, Corporate Secretary
Facsimile No.: (414) 221-5034
(b) Notice given by personal delivery, mail or overnight courier
pursuant to this Section 11.1 shall be effective upon physical receipt.
Notice given by facsimile pursuant to this Section 11.1 shall be effective
as of the date of confirmed delivery if delivered before 5:00 p.m. Central
Time on any Business Day or the next succeeding Business Day if confirmed
delivery is after 5:00 p.m. Central Time on any Business Day or during any
non-Business Day.
11.2 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
contain the entire agreement between the Parties with respect to the
transactions contemplated herein and therein and shall supersede all previous
oral and written and all contemporaneous oral negotiations, commitments, and
understandings including, without limitation, all letters, memoranda or other
documents or communications, whether oral, written or electronic, submitted or
made by (a) Buyer or its Representatives to Sellers or any of their respective
agents or representatives, or (b) Sellers or their respective agents or
representatives to Buyer or any of its Representatives, in connection with the
sale process which occurred prior to the execution of this Agreement or
otherwise in connection with the negotiation and execution of this Agreement. No
communications by or on behalf of Sellers, including responses to any questions
or inquiries, whether orally, in writing or electronically, and no information
provided in any data room or any copies of any information from any data room
provided to Buyer or any other information shall be deemed to (x) constitute a
representation, warranty or an agreement of Sellers or (y) be part of this
Agreement.
11.3 ACKNOWLEDGMENT; INDEPENDENT DUE DILIGENCE. Buyer acknowledges
that Sellers have not made any representation or warranty, expressed or implied,
as to the accuracy or completeness of any information regarding Sellers or the
Company not included in this Agreement and the Schedules. Buyer further
acknowledges that: (a) Buyer, either alone or together with any individuals or
entities Buyer has retained to advise it with respect to the transactions
contemplated hereby, has knowledge and experience in transactions of this type
and in the business of the Company and is therefore capable of evaluating the
risks and merits of acquiring the Company Interests; (b) it has relied on its
own independent investigation, and has not relied on any information or
representations furnished by Sellers or any representative or
25
agent thereof (except as specifically set forth herein), in determining to
enter into this Agreement; and (c) neither Sellers nor any representative or
agent thereof has given any investment, legal or other advice or rendered any
opinion as to whether the purchase of the Company Interests is prudent, and
Buyer is not relying on any representation or warranty by Sellers or any
representative or agent thereof except as set forth in this Agreement.
11.4 EXPENSES. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated hereby are consummated,
each Party will pay its own costs and expenses incurred in anticipation of,
relating to and in connection with the negotiation and execution of this
Agreement and the transactions contemplated hereby.
11.5 PUBLIC ANNOUNCEMENTS. Except as may be required by Law or any
applicable stock exchange rules, Sellers and Buyer will not issue or make, and
will cause the Company not to issue or make, any press releases or other public
disclosures concerning this Agreement or the transactions contemplated hereby
without first obtaining consent from the other Party, which consent shall not be
unreasonably withheld, conditioned or delayed.
11.6 CONFIDENTIAL INFORMATION. UNTIL THE SECOND ANNIVERSARY OF THE
CLOSING DATE, SELLERS SHALL, AND SHALL CAUSE THEIR AFFILIATES AND THEIR
RESPECTIVE REPRESENTATIVES TO, KEEP CONFIDENTIAL AND NOT DISCLOSE ALL
INFORMATION RELATING TO THE COMPANY OR ANY OF ITS BUSINESSES OR ASSETS (THE
"RESTRICTED INFORMATION") (WHETHER IN THE POSSESSION OF SELLERS, SUCH AFFILIATE
OR SUCH REPRESENTATIVE AT THE TIME OF THE CLOSING OR SUBSEQUENTLY OBTAINED BY
SELLERS, ANY SUCH AFFILIATE OF SELLERS OR ANY SUCH REPRESENTATIVE FROM BUYER
PURSUANT TO THIS AGREEMENT), AND SHALL NOT DIRECTLY OR INDIRECTLY USE SUCH
RESTRICTED INFORMATION FOR ANY PURPOSE, EXCEPT AS AND TO THE EXTENT PERMITTED BY
THE TERMS OF THIS AGREEMENT. THE OBLIGATION TO KEEP SUCH RESTRICTED INFORMATION
CONFIDENTIAL SHALL NOT APPLY TO ANY INFORMATION:
(a) which at the time of disclosure is already in the public
domain through no fault of Sellers, their Affiliates or their
Representatives;
(b) which after disclosure becomes part of the public domain
through no act or fault of Sellers, their Affiliates or their
Representatives;
(c) if such information subsequently becomes known to Sellers or
their Affiliates through no breach of their obligations hereunder;
(d) which is independently developed by Sellers or their
Affiliates through no breach of their obligations hereunder;
(e) required by Law, Order, or stock exchange rules; provided
that Sellers shall use, and shall cause its applicable Affiliates, if any,
to use, commercially reasonable efforts to give Buyer prior notice of such
disclosure in sufficient time to enable Buyer to protect any such
information; or
(f) regarding the U.S. federal income Tax treatment and Tax
structure of the transaction contemplated by this Agreement and all
materials of any kind
26
(including opinions or other Tax analyses) that are provided to Sellers
relating to such Tax treatment and Tax structure.
11.7 DISCLOSURE. A Party may, at its option, include in the Schedules
items that are not material in order to avoid any misunderstanding, and any such
inclusion, or any references to dollar amounts, shall not be deemed to be an
acknowledgment or representation that such items are material, to establish any
standard of materiality or to define further the meaning of such terms for
purposes of this Agreement. Information disclosed in any single Schedule shall
constitute a disclosure of that matter under any other Schedule to the extent
the relevance of such matter is readily apparent from the information disclosed.
Each Party agrees that, with respect to the representations and warranties of
such Party contained in this Agreement, such Party shall have the continuing
obligation until the Closing to supplement or amend promptly such Party's
disclosure schedules with respect to any matter hereafter arising or discovered
that, if existing or known at the date of this Agreement, would have been
required to be set forth or described in the disclosure schedules. For all
purposes of this Agreement, including for purposes of determining whether the
conditions set forth in Articles VII and VIII, as applicable, have been
fulfilled, such Party's disclosure schedules shall be deemed to include only
that information contained therein on the date of this Agreement and shall be
deemed to exclude all information contained in any supplement or amendment
thereto.
11.8 WAIVER. Any term or condition of this Agreement may be waived at
any time by the Party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the Party waiving such term or condition. No waiver by any
Party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
11.9 AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
Party.
11.10 NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of the Parties, their respective
successors or permitted assigns, and it is not the intention of the Parties to
confer third-party beneficiary rights upon any other Person.
11.11 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any Party without the
prior written consent of the other Party, and any attempt to do so will be void.
Subject to this Section 11.11, this Agreement is binding upon, inures to the
benefit of and is enforceable by the Parties and their respective successors and
permitted assigns. Notwithstanding the foregoing, Buyer may assign this
Agreement to a wholly-owned direct or indirect subsidiary of Buyer without the
prior written consent of Sellers, provided that (a) Buyer provide Sellers with
written notice five (5) Business Days prior to such assignment, (b) any
assignment by Buyer is conditioned on the assignee's agreement in writing to
assume all of Buyer's obligations under this Agreement, and (c) any assignment
by Buyer effected in accordance with this Section 11.11 shall not relieve Buyer
of its obligations under this Agreement.
27
11.12 HEADINGS. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
11.13 INVALID PROVISIONS. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any Party under this Agreement will not be
materially and adversely affected thereby, such provision will be fully
severable, this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
11.14 COUNTERPARTS; FACSIMILE. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument. Any facsimile copies
hereof or signature hereon shall, for all purposes, be deemed originals.
11.15 GOVERNING LAW; VENUE; JURISDICTION; WAIVER OF JURY TRIAL.
(a) This Agreement shall be governed by and construed in
accordance with the Laws of the State of Wisconsin, without giving effect
to any conflict or choice of law provision that would result in the
imposition of another state's Law.
(b) All actions or proceedings arising in connection with this
Agreement shall be tried and litigated exclusively in any state or federal
court located in Milwaukee, Wisconsin. The aforementioned choice of venue
is intended by the Parties to be mandatory and not permissive in nature,
thereby precluding the possibility of litigation between the Parties with
respect to or arising out of this Agreement in any jurisdiction other than
that specified in this paragraph. Each Party hereby waives any right it may
have to assert the doctrine of forum non conveniens or similar doctrine or
to object to venue with respect to any proceeding brought in accordance
with this paragraph, and stipulates that the state and federal courts
located in Milwaukee, Wisconsin, shall have in personam jurisdiction over
each of them for the purpose of litigating any such dispute, controversy,
or proceeding. Each Party hereby authorizes and accepts service of process
sufficient for personal jurisdiction in any action against it as
contemplated by this Section 11.15 by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of
notices as set forth in Section 11.1. Nothing herein shall affect the right
of any party to serve process in any other manner permitted by law. Each of
the Parties irrevocably waives its right to a jury trial with respect to
any action or claim arising out of any dispute in connection with this
Agreement or the transactions contemplated hereby
28
11.16 CONSTRUCTION.
(a) All article, section, subsection, schedules and exhibit
references used in this Agreement are to articles, sections, subsections,
schedules and exhibits to this Agreement unless otherwise specified. The
exhibits and schedules attached to this Agreement constitute a part of this
Agreement and are incorporated herein for all purposes.
(b) If a term is defined as one part of speech (such as a noun),
it shall have a corresponding meaning when used as another part of speech
(such as a verb). Unless the context of this Agreement clearly requires
otherwise the singular shall include the plural and the plural shall
include the singular wherever and as often as may be appropriate, words
importing the masculine gender shall include the feminine and neutral
genders and vice versa. The words "includes" or "including" shall mean
"including without limitation," the words "hereof," "hereby," "herein,"
"hereunder" and similar terms in this Agreement shall refer to this
Agreement as a whole and not any particular section or article in which
such words appear and any reference to a Law shall include any amendment
thereof or any successor thereto and any rules and regulations promulgated
thereunder. Currency amounts referenced herein, unless otherwise specified,
are in U.S. Dollars.
(c) Time is of the essence in this Agreement. Whenever this
Agreement refers to a number of days, such number shall refer to calendar
days unless Business Days are specified. Whenever any action must be taken
hereunder on or by a day that is not a Business Day, then such action may
be validly taken on or by the next day that is a Business Day.
(d) All accounting terms used herein and not expressly defined
herein shall have the meanings given to them under GAAP.
(e) Each Party acknowledges that it and its attorneys have been
given an equal opportunity to negotiate the terms and conditions of this
Agreement and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting Party or any similar rule operating
against the drafter of an agreement shall not be applicable to the
construction or interpretation of this Agreement.
11.17 ATTORNEYS' FEES. If either of the Parties shall bring an action
to enforce the provisions of this Agreement, the prevailing Party shall be
entitled to recover its reasonable attorneys' fees and expenses incurred in such
action from the unsuccessful Party.
11.18 SEVERAL OBLIGATIONS OF SELLERS. Buyer agrees and acknowledges
that the obligations of each Seller under this Agreement are several and not
joint or joint and several.
[SIGNATURE PAGE FOLLOWS]
29
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each Party as of the date first
above written.
SELLERS:
WISCONSIN ENERGY CORPORATION
By: /s/ James C. Fleming
------------------------------------
Name: James C. Fleming
----------------------------------
Title: EVP and General Counsel
---------------------------------
WPS INVESTMENTS, LLC
By: WPS Resources Corporation, its
Manager
By: /s/ Barth J. Wolf
------------------------------------
Name: Barth J. Wolf
----------------------------------
Title: Secretary and Manager-
Legal Services
---------------------------------
BUYER:
NORTHERN BORDER INTERMEDIATE LIMITED
PARTNERSHIP
By: /s/ Jerry L. Peters
------------------------------------
Name: Jerry L. Peters
----------------------------------
Title: Chief Financial and
Accounting Officer
---------------------------------
30
GUARANTY OF NORTHERN BORDER PARTNERS, L.P.
Northern Border Partners, L.P., a Delaware limited partnership, hereby (a)
unconditionally and irrevocably agrees to pay and perform, when due, all of
Buyer's obligations under this Agreement in accordance with the terms and
subject to the conditions of this Agreement, (b) waives all defenses as a surety
including notice, and (c) agrees that its obligations under this paragraph shall
not be impaired, diminished or discharged by any extension of time granted by
Sellers, by any course of dealing between the Parties, or by any event or
circumstances which might operate to discharge a guarantor. The obligations of
Northern Border Partners, L.P. under this paragraph are subject in all respects
to all rights and defenses of Buyer arising under this Agreement and the
transactions contemplated hereby.
NORTHERN BORDER PARTNERS, L.P.
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
31