EXHIBIT 10.3
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ASSET PURCHASE AGREEMENT
BETWEEN
WHEELABRATOR HUDSON FALLS L.L.C.
AND
ADIRONDACK RESOURCE RECOVERY ASSOCIATES, L.P.
dated as of
August 25, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I SALE OF ASSETS AND CLOSING..............................................................................2
Section 1.1 The Sale........................................................................................2
Section 1.2 Liabilities.....................................................................................7
Section 1.3 Purchase Price..................................................................................8
Section 1.4 Closing.........................................................................................9
Section 1.5 Proration; Reserved Construction Contract Rights...............................................11
Section 1.6 Purchaser Approvals and Third Party Consents...................................................13
Section 1.7 Risk of Loss to Assets; Damage to Facility.....................................................14
Section 1.8 Post-Closing Cooperation and Access; Further Assurances........................................15
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER..............................................................16
Section 2.1 Existence of Seller............................................................................16
Section 2.2 Authority......................................................................................16
Section 2.3 No Conflicts...................................................................................17
Section 2.4 Reserved.......................................................................................18
Section 2.5 Financial Statements...........................................................................18
Section 2.6 Personal Property..............................................................................19
Section 2.7 Owned and Leased Real Property; Rights under Installment Sale Agreement........................19
Section 2.8 Business Contracts.............................................................................20
Section 2.9 Permits........................................................................................21
Section 2.10 Litigation.....................................................................................22
Section 2.11 Taxes..........................................................................................22
Section 2.12 Intellectual Property..........................................................................23
Section 2.13 Employee Benefit Plans.........................................................................24
Section 2.14 Environmental Laws and Regulations.............................................................25
Section 2.15 No Changes Since May Balance Sheet Date........................................................28
Section 2.16 Compliance with Laws...........................................................................28
Section 2.17 Regulatory Status; QF Status of Facility.......................................................28
Section 2.18 Broker's or Finder's Fees, Etc.................................................................29
Section 2.19 Bankruptcy.....................................................................................29
Section 2.20 Insurance......................................................................................29
Section 2.21 Labor and Employee Relations...................................................................29
Section 2.22 Foster Wheeler Technology......................................................................31
Section 2.23 Assets Used in Seller's Business...............................................................31
Section 2.24 Evergreen Interest.............................................................................31
Section 2.25 No Other Representations or Warranties.........................................................32
ARTICLE III REPRESENTATIONS OF WTI...............................................................................32
Section 3.1. Existence and Good Standing of WTI; Power and Authority........................................32
Section 3.2 Consents and Approvals; No Violations..........................................................33
Section 3.3 Financing......................................................................................33
Section 3.4 Broker's or Finder's Fees, Etc.................................................................33
Section 3.5 Litigation.....................................................................................33
Section 3.6 Facility Transfer Agreement....................................................................34
ARTICLE IV COVENANTS OF SELLER AND PURCHASER.....................................................................34
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Section 4.1 Access to Information Concerning Properties and Records........................................34
Section 4.2 Conduct of Business............................................................................34
Section 4.3 Commercially Reasonable Efforts................................................................37
Section 4.4 Exclusive Dealing..............................................................................37
Section 4.5 Antitrust Filings..............................................................................37
Section 4.6 Health Plan Continuation Coverage..............................................................37
Section 4.7 No Use of Name.................................................................................38
Section 4.8 Savings Plans..................................................................................38
Section 4.9 Pension Plan...................................................................................38
Section 4.10 Post-Signing Period Disclosure Updates.........................................................38
Section 4.11 Pre-Closing Environmental Investigations.......................................................40
ARTICLE V TAX MATTERS............................................................................................41
Section 5.1 Tax Matters....................................................................................41
ARTICLE VI EMPLOYEES.............................................................................................41
Section 6.1 Seller's Employees.............................................................................41
ARTICLE VII CONDITIONS TO OBLIGATIONS OF WTI.....................................................................42
Section 7.1 Truth of Representations and Warranties........................................................43
Section 7.2 Performance of Agreements......................................................................43
Section 7.3 IDA Performance................................................................................43
Section 7.4 Approvals and Consents.........................................................................44
Section 7.5 Transfer Agreements............................................................................44
Section 7.6 Bond Counsel Opinion and Trustee Consent.......................................................44
Section 7.7 Opinion of Seller's Counsel....................................................................44
Section 7.8 [RESERVED].....................................................................................44
Section 7.9 Opinion of Foster Wheeler's Counsel............................................................44
Section 7.10 Closing Certificate............................................................................45
Section 7.11 Foster Wheeler Technology License..............................................................45
Section 7.12 Account Balances...............................................................................45
Section 7.13 Reserved.......................................................................................45
Section 7.14 No Bond Indenture Defaults.....................................................................45
Section 7.15 NIMO Notification..............................................................................45
Section 7.16 Title Insurance; Zoning........................................................................45
Section 7.17 Orders and Laws................................................................................46
Section 7.18 Loss Event.....................................................................................46
Section 7.19 Counterparty Approvals of Key Business Contracts...............................................46
Section 7.20 Stormwater Pond................................................................................46
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF SELLER.................................................................46
Section 8.1 Truth of Representations and Warranties........................................................47
Section 8.2 Performance of Agreements......................................................................47
Section 8.3 IDA - Seller Deliverables......................................................................47
Section 8.4 Approvals and Consents.........................................................................47
Section 8.5 Purchase Price.................................................................................47
Section 8.6 Bond Counsel Opinion and Trustee Consent.......................................................48
Section 8.7 Opinion of Counsels to the Purchasers and Counties.............................................48
Section 8.8 Closing Certificate............................................................................48
Section 8.9 Orders and Laws................................................................................48
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Section 8.10 Facility Transfer Agreement....................................................................48
ARTICLE IX SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION..........................................................48
Section 9.1 Survival of Representations; Covenants.........................................................49
Section 9.2 Indemnification................................................................................49
Section 9.3 Third Party Claims.............................................................................52
Section 9.4 Remediation Activities.........................................................................53
Section 9.5 Exclusive Remedy...............................................................................56
Section 9.6 Liability Limitation...........................................................................56
Section 9.7 Restoration Activities.........................................................................57
ARTICLE X TERMINATION AND ABANDONMENT............................................................................58
Section 10.1 Termination....................................................................................58
Section 10.2 Effect of Termination..........................................................................59
ARTICLE XI MISCELLANEOUS.........................................................................................60
Section 11.1 Expenses.......................................................................................60
Section 11.2 Governing Law..................................................................................60
Section 11.3 Captions.......................................................................................60
Section 11.4 Public Announcements...........................................................................60
Section 11.5 Notices........................................................................................60
Section 11.6 Parties in Interest............................................................................62
Section 11.7 Counterparts...................................................................................62
Section 11.8 Entire Agreement...............................................................................62
Section 11.9 Amendments.....................................................................................62
Section 11.10 Severability...................................................................................62
Section 11.11 Third Party Beneficiaries......................................................................62
Section 11.12 Submission to Jurisdiction; Waiver of Jury Trial...............................................62
Section 11.13 Construction...................................................................................63
Section 11.14 Gender and Number..............................................................................63
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EXHIBITS
Exhibit A Defined Terms
Exhibit B Form of ARRA-IDA General Assignment
Exhibit C Form of ARRA-WTI General Assignment
Exhibit D Form of WTI Assumption Agreement
Exhibit E Form of IDA Assumption Agreement
Exhibit F-1 Form of Trustee Consent
Exhibit F-2 Form of Bond Counsel Opinion and Reliance Letter
Exhibit F-3 Form of Bondholder Consent
Exhibit G Form of Opinion of Wolff & Samson
Exhibit H [Reserved]
Exhibit I [Reserved]
Exhibit J Form of Opinion of Foster Wheeler In-House Counsel
Exhibit K Form of PPA Assignment Notification
Exhibit L-1 Form of Opinion of WTI In-House Counsel
Exhibit L-2 Form of Opinion of Hogan & Hartson L.L.P.
Exhibit M Form of Seller's General Partner's Officer Certificate
Exhibit N Form of Seller's Incumbency Certificate
Exhibit O Form of WTI Officer's Certificate
Exhibit P Form of WTI's Incumbency Certificate
Exhibit Q Form of ARRA-IDA Mutual Release
Exhibit R-1 Form of Stipulation of Discontinuance
Exhibit R-2 Form of Settlement Agreement
Exhibit R-3 Form of IDA Litigation Release
Exhibit S-1 Form of Limited Release of IDA
Exhibit S-2 Form of Limited Release of Washington County
Exhibit S-3 Form of Notice of Discontinuance
Exhibit S-4 Form of Limited Release of Seller and General Partner
Exhibit S-5 Form of Limited Release of Trustee
Exhibit T Form of Facility Transfer Agreement
Exhibit U Form of Service Agreement Settlement Agreement
Exhibit V Executed Access Agreement with Amendments
Exhibit W Form of Foster Wheeler Technology License
Exhibit X Executed WTI APA Guarantee
Exhibit Y Executed Seller APA Guarantee
Exhibit Z Form of Opinion of IDA Counsel
Exhibit AA Form of Opinion of Washington County Counsel
Exhibit BB Form of Opinion of Warren County Counsel
Exhibit CC Attachment II Data
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SCHEDULES
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NAME LOCATION
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Certifying Officers Schedule Exhibit A (Definition of "Knowledge")
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Inventory Schedule Section 1.1(a)(i)(A)
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Business Contracts Schedule Section 1.1(a)(i)(B)(3)-(4); Section 1.6(b); Section
2.3(iii); Section 2.8(a), (b)
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Personal Property Schedule Section 1.1(a)(i)(C); Section 2.6(a), (b); Exhibit A
(Definition of "Permitted Lien")
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Financial Statement Schedule Section 2.5
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Transferable Permits Schedule Section 1.1(a)(i)(D)
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Intellectual Property Schedule Section 1.1(a)(i)(E); Section 2.12(a), (b), (c)
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Real Property Schedule Section 1.1(a)(ii)(A), Section 2.7(a), (b); Exhibit A
(Definition of "Permitted Lien")
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Permits Schedule Section 2.9(a), (b); Section 2.14(c)(ii); Section 2.16
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Litigation Schedule Section 2.10(a), (b); Section 2.16
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Tax Schedule Section 2.11(a), (b), (c)
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Employee Benefits Schedule Section 2.13(a), (f)
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Environmental Matters Schedule Section 2.14; Section 2.16
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Insurance Schedule Section 2.20
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Labor and Employee Relations Schedule Section 2.21(g),(h), (i), (j); Section 6.1(d)
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Approvals Schedule Section 1.1(a)(i)(B)(4); Section 1.6(b); Section
2.3(ii) and (iii); Section 8.4; Section 9.2(a) and (c)
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Purchaser Approvals Schedule Section 1.6(a); Section 7.4
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Key Business Contract Schedule Section 7.19
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THIS ASSET PURCHASE AGREEMENT dated as of August 25, 2003, is made and
entered into by and between WHEELABRATOR HUDSON FALLS L.L.C., a Delaware limited
liability company ("WTI"), and ADIRONDACK RESOURCE RECOVERY ASSOCIATES, L.P. a
New York limited partnership ("Seller"). Capitalized terms not otherwise defined
herein shall have the meanings set forth in Exhibit A.
RECITALS
A. Seller operates a municipal solid waste disposal and electric
generation facility located in the Village of Hudson Falls, New York (the
"Facility"), on the land described and designated on that certain Map of Survey
of Lands of Warren & Washington County Industrial Development Agency dated
December 23, 2002 prepared by W. J. Rourke Associates (the "Survey") as Parcels
I, VI and VII (the "Facility Site").
B. The acquisition of the Facility was financed in part by certain
Bonds issued by the Counties of Warren and Washington Industrial Development
Agency, a public body corporate and politic created and existing under the laws
of the State of New York (the "IDA").
C. Pursuant to the terms of the Installment Sale Agreement, dated as of
January 1, 1989 (as amended, the "Installment Sale Agreement"), between the IDA
and Seller, the IDA agreed to sell the Facility to Seller and in consideration
and as evidence of such sale, Seller agreed to make payments in installments
sufficient to pay the principal of, premium, if any, and interest on the Bonds.
D. Seller operates and maintains the Facility and provides service to
the IDA pursuant to the terms of the Amended and Restated Service Agreement,
dated as of October 28, 1988 (as amended, the "Service Agreement"), between
Seller and the IDA.
E. The IDA, Seller and WTI have concluded the negotiation of a
transaction (the "Restructuring") which will result in (1) the IDA's acquisition
of all of Seller's right, title, and interest in the Facility and the Facility
Site through the assignment to the IDA of Seller's rights under the Installment
Sale Agreement (and the amendment of the Installment Sale Agreement and the Bond
Indenture to (x) include therein those portions of the Facility Site, designated
as Parcels VI and VII on the Survey, not currently covered thereunder and (y)
exclude therefrom those portions of the Northern Parcels (as hereinafter
defined), designated as Parcel II on the Survey, which are currently covered
thereunder, (2) provision for the continued operation of the Facility by WTI
through the assignment by Seller to WTI of Seller's rights and the assumption by
WTI of Seller's obligations under the Service Agreement, (3) the settlement of
existing litigation between Seller and the IDA and litigation between Seller and
Washington County, New York and (4) the conveyance by the IDA to Seller of
certain parcels of land located adjacent to or near the Facility Site and
described and designated on the Survey as Parcels II, III, IV and VIII, (the
"Northern Parcels") subject to a certain road access easement over a portion of
those parcels (the "Facility Access Easement").
F. Prior to consummation of the Restructuring, the IDA must obtain (i)
from the Bank of New York, as trustee for the Bonds, an executed consent to the
amendment of the Bond Indenture and certain other documents which will permit
the Restructuring (including the transactions contemplated by this Agreement) to
be consummated, a copy of which is attached hereto as Exhibit F-1 (the "Trustee
Consent"), (ii) an executed opinion of Bond Counsel together with a reliance
letter in favor of Seller and WTI, attached hereto as Exhibit F-2, relating to
the consent of the Trustee and holders of the Bonds to the Restructuring
(including the transactions contemplated by this Agreement) (the "Bond Counsel
Opinion") and (iii) a consent to the amendment of the Bond Indenture and certain
other documents executed by the holders of more than two-thirds in principal
amount of the Bonds (the "Bondholder Consent") a copy of which is attached
hereto as Exhibit F-3.
G. WTI and the IDA have completed negotiation of, and propose to enter
into, a Facility Transfer Agreement (the "Facility Transfer Agreement"), which
provides for (i) the acquisition by the IDA of all of Seller's right, title and
interest in the Facility and Facility Site directly from Seller, (ii) the
payment by WTI to the IDA of amounts sufficient for the IDA to pay the Purchase
Price due to Seller under this Agreement and (iii) the conveyance to ARRA of the
Northern Parcels and the execution by the IDA and ARRA of the Facility Access
Easement.
H. The IDA is seeking or has obtained approval of its board and of the
legislative bodies of Washington County, New York and Warren County, New York.
Following receipt of these approvals, the IDA will execute and deliver the
Facility Transfer Agreement.
I. Wheelabrator Technologies Inc. ("Wheelabrator") has executed a
guarantee of even date herewith attached hereto as Exhibit X (the "WTI APA
Guarantee") pursuant to which it guarantees all of WTI's obligations under this
Agreement.
J. Foster Wheeler Power Group, Inc. (the "FW Guarantor") has executed a
guarantee of even date herewith attached hereto as Exhibit Y (the "Seller APA
Guarantee"), pursuant to which it guarantees all of Seller's obligations under
this Agreement.
NOW, THEREFORE, in consideration of the mutual 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 hereto
agree as follows:
ARTICLE I
SALE OF ASSETS AND CLOSING
Section 1.1 The Sale.
(a) On the terms and subject to the conditions set forth in this
Agreement at the Closing and upon receipt by Seller of the Purchase Price (1)
Seller shall sell, transfer, convey, assign and deliver to WTI, free and clear
of all Liens other than Permitted Liens, all of Seller's right, title and
interest in, to and under the WTI Assets, provided, however, that such
assignment by Seller to WTI of the Business Contracts shall be subject to the
Reserved Construction Contract Rights as more fully described in Section 1.5,
and (2) Seller shall sell, transfer, convey, assign and deliver to the IDA, free
and clear of all Liens other than Permitted Liens, all of Seller's right, title
and interest in, to and under the IDA Assets; provided that Seller shall not
transfer, sell or assign to either Purchaser any of the Excluded Assets as the
same shall exist as of the Closing. The WTI Assets and the IDA Assets
collectively shall be referred to herein as the "Assets".
2
(i) The "WTI Assets" means the Inventory, Business
Contracts, Tangible Personal Property, Transferable Permits, Assigned
Intellectual Property, Warranties, Business Records, Assigned Claims and the
Litigation Rights as defined and described in Sections 1.1(a)(i)(A) through
1.1(a)(i)(J) below.
(A) Inventory. The "Inventory" shall mean all
inventories of fuels, supplies, materials
and spares used or held for use in
connection with the operation of the
Facility located on the Real Property, or
held by Seller for use principally in
connection with the Facility, or in transit
to the Facility on the Closing Date (a
listing of such inventories except for items
in transit, as of June 12, 2003, is included
in the Inventory Schedule).
(B) Business Contracts. The "Business Contracts"
shall mean the following Contracts described
in clauses (1) through (4) below:
(1) the Service Agreement;
(2) the Agreement, dated as of August 13,
1986, between Seller and Niagara Mohawk
Power Corporation, as amended to date (the
"PPA");
(3) all Contracts (other than the Service
Agreement and the PPA) to which Seller is a
party that are listed and identified in the
Business Contracts Schedule as "Business
Contracts"; and
(4) all Contracts (other than the Service
Agreement and the PPA) to which Seller is a
party that (x) are not listed and identified
in the Business Contracts Schedule, (y) are
Assignable and (z) are not Material
Contracts;
provided; however, that the Business
Contracts shall not include (1) the Seller's
Bond Documents or (2) any Contract to which
Seller is a party that has an
Anti-Assignment Clause, but is not
identified in the Approvals Schedule as
having an Anti-Assignment Clause and the
assumption of which Contract would have a
Material Adverse Effect, unless WTI shall
have been furnished with a consent to the
assignment thereof at Closing or
affirmatively elects to assume such Business
Contract or (3) any Contract entered into
during the Post Signing Period (x) in
violation of Section 4.2 unless such
Contract is affirmatively assumed by WTI or
(y) as otherwise provided in Section 4.2, or
(4) any Contract to which Seller is a party
on and as of the date of this Agreement as
to which Seller elects to treat as a
Retained Liability under Section 4.10(b).
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(C) Tangible Personal Property. The "Tangible
Personal Property" shall mean all machinery,
equipment, vehicles, furniture and other
personal property located on the Facility
Site or Area #10 of the main building of the
EPIC Ventures Facility, 22 Hudson Falls
Road, South Glens Falls, New York and owned
and used or held by Seller for use in
connection with the Facility (which for
illustrative purposes included, as of June
12, 2003, the items listed in the Personal
Property Schedule); provided, however, that
the Tangible Personal -------- -------
Property shall not include any of the IDA
Assets.
(D) Transferable Permits. The "Transferable
Permits" shall mean all Permits listed in
the Transferable Permits Schedule.
(E) Assigned Intellectual Property. The
"Assigned Intellectual Property" shall mean
all Intellectual Property listed in the
Intellectual Property Schedule (except as
specifically noted otherwise therein);
(F) Warranties. The "Warranties" shall mean all
warranties, guarantees and indemnities given
by third parties relating to the Assets or
to the ownership, operation and maintenance
of the Facility, other than (x) in
connection with any Excluded Assets or
Retained Liabilities, (y) the Performance
Guaranty or (z) as provided in Section
1.8(a).
(G) Business Records. The "Business Records"
shall mean all books, operating and
maintenance records, operating, safety and
maintenance manuals, engineering or design
plans, drawings, blue prints and as-built
plans, specifications, customer information,
procedures and similar items of Seller
relating specifically to the Assets, other
than (i) the Partnership Records, (ii)
personnel records of Seller and (iii) copies
of any such items retained by Seller.
(H) Reserved.
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(I) Assigned Claims. The "Assigned Claims" shall
mean any suits, actions, causes of action,
awards, rights to award, and claims and
recoveries of Seller against third parties
other than the Purchasers (including
defenses, set-offs, counterclaims and the
like) arising out of or in connection with
the Facility after the Closing without
regard to when such items might accrue,
except (i) to the extent such arise and
accrue based on events occurring prior to
the Closing, (ii) casualty insurance claims
to which Seller is otherwise entitled under
Section 1.7 of this Agreement and (iii) the
Reserved Construction Contract Rights to the
extent described in Section 1.5.
(J) Certain Litigation Rights. The "Litigation
Rights" shall mean the rights of Seller in
the case of Schultz vs. The New York
Legislature, et al, Index No. 3271-98, State
of New York, Supreme Court, County of
Albany.
(ii) The "IDA Assets" means the Real Property, Seller's
Bond Documents and those certain contracts relating to the Real Property as
defined and described in Sections 1.1(a)(ii)(A), 1.1(a)(ii)(B) and 1.1(a)(ii)(C)
below.
(A) Real Property. The "Real Property" shall
mean the Facility Site, as described in the
Real Property Schedule (including Parcels VI
and VII and the access easement as more
fully described in the Facility Access
Easement), and all buildings, structures,
fixtures and other improvements thereon that
constitute real property. It is the
intention of Seller that transfer of the
Real Property be effected by the assignment
to the IDA of Seller's rights under the
Installment Sale Agreement as amended
effective as of the Closing Date to include
those portions of the Real Property not
currently covered under the Installment Sale
Agreement (which, for the avoidance of
doubt, are those parcels designated as
Parcels VI and VII on the Survey), and to
exclude those portions of the Northern
Parcels currently covered under the
Installment Sale Agreement (which, for the
avoidance of doubt, is that parcel
designated as Parcel II on the Survey). It
is the further intention of Seller that the
transfer of all right, title and interest of
the IDA in and to the Northern Parcels be
transferred by deed from the IDA to the
Seller at Closing.
(B) Seller's Bond Documents. The "Seller's Bond
Documents" shall mean the Installment Sale
Agreement and all other documents to which
Seller is a party relating to the issuance
of the Bonds, other than the Construction
Contract, the PPA and the Service Agreement.
(C) Real Property Contracts. Any Contracts
relating solely to the Real Property that
are not Business Contracts and are not
described or referred to in Section
1.1(a)(ii)(B) above.
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(b) Excluded Assets. Notwithstanding anything in this Agreement to the
contrary, the Assets shall not include the following assets of Seller (the
"Excluded Assets"):
(i) Cash. All cash, commercial paper, certificates of
deposit and other bank deposits, treasury bills and other cash equivalents;
(ii) Investments. Certificates of deposit, shares of
stock, securities, evidences of Indebtedness, interest in joint ventures,
partnerships, limited liability companies and other entities;
(iii) Tax Refunds. All refunds or credits, if any, of Taxes
due to Seller attributable to any period ending on or prior to the Closing;
(iv) Tradename, Logo and Other Foster Wheeler Intellectual
Property. (A) any logos owned by Seller, (B) all of Seller's right, title and
interest in, to and under the names "Adirondack Resource Recovery Associates,
L.P." and "ARRA", (C) the name "Foster Wheeler", (D) any logos, trademarks or
trade names containing the terms "Foster" or "Wheeler" (together or alone), (E)
the initials "FW", (F) any name or mark which might be confusingly similar to
these terms, and (G) any other indicia of origin incorporating the foregoing
items not used exclusively in connection with the operations of the Seller
(collectively, the "Foster Wheeler Intellectual Property");
(v) Insurance. Life insurance policies and all other
insurance policies relating to the operation of the Facility;
(vi) Employee Plans. All assets owned or held by any Plans;
(vii) Accounts. Subject to the Service Agreement Settlement
Agreement and the applicable Transfer Agreements, all accounts receivable,
contract rights, general intangibles or other rights to payment under the
Business Contracts, or otherwise owed or accruing for any time before the
Closing, including, without limitation, any and all adjustments to which Seller
is entitled to receive before or after Closing for the period through Closing
under or in connection with the Business Contracts, but subject to any and all
adjustments to which any of Seller's counterparties to the Business Contracts
are entitled;
(viii) Permits. Any Permits held by Seller other than
Transferable Permits;
(ix) Northern Parcels. Any right, title, or interest of Seller
in and to the Northern Parcels (title to which is to be conveyed by the IDA to
Seller at Closing);
(x)Other Assets. All other assets of Seller not included in the
Assets under Section 1.1(a) of this Agreement; and
(xi)Restructuring Documents. Seller's rights under this
Agreement, the other Transfer Agreements and any opinions, certificates or other
documents, instruments, or agreements delivered in connection with this
Agreement.
6
Section 1.2 Liabilities.
(a) WTI Assumed Liabilities. At the Closing, WTI will deliver to Seller
the WTI Assumption Agreement in the form attached hereto as Exhibit D.
(b) IDA Assumed Liabilities. At the Closing, WTI shall cause the IDA to
deliver to Seller the IDA Assumption Agreement in the form attached hereto as
Exhibit E.
(c) Retained Liabilities. Except for the Assumed Liabilities,
Purchasers shall not assume by virtue of this Agreement or the transactions
contemplated hereby, and shall have no liability for, any Liabilities of Seller,
including but not limited to Seller's Liabilities under this Agreement and the
other Transfer Agreements and the following (collectively the "Retained
Liabilities"):
(i) any Seller Environmental Claims;
(ii) any Liabilities of Seller in respect of any Excluded
Assets;
(iii) any Liabilities of Seller for Taxes imposed on Seller
(other than Transfer Taxes) or any of its Affiliates;
(iv) any Liabilities of Seller under Seller's Bond Documents
arising and accruing based on events occurring prior to the Closing;
(v) any Liabilities arising out of or in any way relating to
Seller's employment of, termination of employment of, and provision of
benefits to, and compensation of Employees employed or independent
contractors engaged by Seller, including, but not limited to, claims
for any personal injury, discrimination, mass layoff or plant closing,
harassment, wrongful discharge or other wrongful employment practice,
unfair labor practice, claims for benefits (including claims arising
under ERISA or workers' compensation laws), other violation of or
obligations under any employment Law or similar claims or causes of
action, known or unknown, absolute or contingent, asserted or
unasserted, of any such Person arising out of events occurring or
otherwise attributable to the period on or before the Closing;
(vi) any Liabilities of Seller relating to any Plan, or to any
"employee pension plan" (as defined in Section 3(2) of ERISA) of
Seller, whether or not terminated, established, maintained or
contributed to by Seller or a Common Control Entity at any time, or to
which any of Seller or a Common Control Entity are or have been
obligated to contribute to at any time ("ERISA Affiliate Plan");
including any liability (A) to the Pension Benefit Guaranty Corporation
under Title IV of ERISA; (B) relating to a multiemployer plan; (C) with
respect to non-compliance with COBRA or The Health Insurance
Portability and Accountability Act of 1996, as amended ("HIPAA"); (D)
with respect to noncompliance with any other applicable provision of
the Code, ERISA or any other applicable laws; or (E) with respect to
any suit, proceeding or claim which is brought against Purchaser with
respect to any such Plan or ERISA Affiliate Plan, against any such Plan
or ERISA Affiliate Plan, or against any fiduciary or former fiduciary
of any such Plan or ERISA Affiliate Plan;
7
(vii) any and all asserted or unasserted liabilities or
obligations to third parties (including Employees) for personal injury
or tort, or similar causes of action to the extent arising out of the
ownership or operation of the Assets prior to the Closing Date.
(viii) other than in connection with Environmental Claims any
civil or criminal fines, penalties or costs imposed by a Governmental
Authority resulting from (i) an investigation, proceeding, request for
information or inspection relating to the Facility or any activities of
Seller before or by a Governmental Authority commenced or pending prior
to the Closing Date, but only regarding events, acts or omissions which
occurred prior to the Closing Date, (ii) illegal acts or omissions,
willful misconduct or negligence of Seller prior to the Closing Date or
(iii) violations of Laws arising from the operation of the Facility
prior to the Closing Date;
(ix) any payment obligations of Seller for goods delivered or
services rendered prior to the Closing Date;
(x) liability for toxic torts arising as a result of or in
connection with loss of life or injury to Persons (whether or not such
loss or injury arose or was made manifest on or after the Closing Date)
caused (or allegedly caused) by the presence or Release of Hazardous
Materials (at any concentration and whether or not in compliance with
applicable Environmental Law) originating from or migrating from the
Parcel during Seller's use and/or occupancy of the Parcel;
(xi) any obligations for wages, overtime, vacation pay, sick
pay, holiday pay, employment Taxes, severance pay, retention bonuses or
similar benefits accruing or arising prior to the Closing under any
term or provision of any contract, plan, instrument or agreement
relating to any of the Employees;
(xii) any liability of Seller arising out of its use and/or
occupancy of the Northern Parcels;
(xiii) any liability of Seller arising out of a breach by
Seller or any of its Affiliates of any of their respective obligations
under this Agreement, the Service Agreement Settlement Agreement or the
other Transfer Agreements; and
(xiv) any collective bargaining agreement, other labor
contract, or any written understanding with any labor organization to
which Seller is a party.
Section 1.3 Purchase Price.
The aggregate purchase price for the Assets shall be $6,175,000, which
shall be payable to Seller in immediately available United States funds at the
Closing in the manner provided in Section 1.4 (the "Purchase Price"). WTI shall
also pay $650,000 (the "Settlement Amount") to the IDA at Closing.
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Section 1.4 Closing.
(a) The Closing will take place at the offices of Hogan & Hartson
L.L.P., 875 Third Avenue, New York, New York, or at such other place as WTI and
Seller mutually agree, effective at 10:00 A.M. local time, on the Closing Date.
At or prior to Closing, WTI shall pay to the IDA pursuant to the Facility
Transfer Agreement an amount equal to the Settlement Amount plus $350,000. At
Closing WTI shall cause the IDA (i) to pay $350,000 to Seller and (ii) to
deliver the IDA-ARRA Deliverables to Seller and perform its obligations under
the Facility Transfer Agreement, and WTI shall pay $5,825,000 to Seller. At the
Closing, the Purchase Price shall be paid to Seller by wire transfer of
immediately available United States funds to such account as Seller may
reasonably direct by written notice delivered to WTI by Seller at least two (2)
Business Days before the Closing and Seller will pay WTI any Cut Off Payments
due hereunder by wire transfer or otherwise in good funds pursuant to Section
1.5(b). Notwithstanding the foregoing, the parties have agreed to use
Commercially Reasonable Efforts to cause the Closing Date to occur on or before
September 15, 2003.
(b) At Closing, Seller shall deliver to WTI:
(i) a General Assignment and Bill of Sale to IDA substantially
in the form of Exhibit B hereto (the "ARRA-IDA General Assignment"),
duly executed by Seller;
(ii) a General Assignment and Bill of Sale to WTI
substantially in the form of Exhibit C hereto (the "ARRA-WTI General
Assignment"), duly executed by Seller;
(iii) such other good and sufficient instruments of
conveyance, assignment and transfer, in form and substance reasonably
acceptable to Purchasers' and Seller's counsel, as shall be effective
to vest title in each Purchaser to its portion of the Assets, in each
case subject only to Permitted Liens (the ARRA-IDA General Assignment,
the ARRA-WTI General Assignment and the other instruments referred to
in this clause (b)(iii) being collectively referred to herein as the
"WTI Assignment Instruments");
(iv) all Returns and other documentation with respect to
Transfer Taxes, if any, prepared by WTI, duly signed or executed by
Seller, to the extent required pursuant to Section 5.1 hereof;
(v) the Facility Access Easement; and
(vi) a Limited Release of Seller and the General Partner in
the form of Exhibit S-4, duly executed by Seller and the General
Partner.
(c) At Closing, WTI shall deliver to Seller:
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(i) an assumption agreement for the WTI Assumed Liabilities
substantially in the form of Exhibit D hereto (the "WTI Assumption
Agreement"), duly executed by WTI;
(ii) such other good and sufficient instruments of assumption,
in form and substance reasonably acceptable to Seller's and WTI's
counsel, as shall be effective to cause WTI to assume the WTI Assumed
Liabilities (the WTI Assumption Agreement and such other instruments
referred to in clause this (c)(ii) being collectively referred to
herein as the "WTI Assumption Instruments"); and
(iii) any Returns with respect to Transfer Taxes referred to
in paragraph (b)(iv) of this Section.
(d) At Closing, Seller shall receive, as part of the IDA - ARRA
Deliverables, the following:
(i) an assumption agreement for the IDA Assumed Liabilities
substantially in the form of Exhibit E hereto (the "IDA Assumption
Agreement"), duly executed by the IDA;
(ii) such other good and sufficient instruments of assumption,
in form and substance reasonably acceptable to Seller's and IDA's
counsel, as shall be effective to cause IDA to assume the IDA Assumed
Liabilities (the IDA Assumption Agreement and such other instruments
referred to in this clause (d)(ii) being collectively referred to
herein as the "IDA Assumption Instruments");
(iii) a mutual release by the IDA, Washington County, Warren
County, the Trustee, Seller, the General Partner, the Limited Partner,
and Foster Wheeler LLC with respect to certain obligations of the
parties thereto in the form of Exhibit Q (the "ARRA - IDA Mutual
Release"), duly executed by the IDA;
(iv) (A) a Stipulation of Discontinuance between legal counsel
to Seller, its General Partner, and Foster Wheeler LLC and the IDA in
the form of Exhibit R-1 (the "Stipulation of Discontinuance"), (B) a
Settlement Agreement in the form of Exhibit R-2 (the "Settlement
Agreement") between Seller, its General Partner and Foster Wheeler LLC
and IDA and (C) a Limited Release in the form of Exhibit R-3 (the "IDA
Litigation Release") by IDA for the benefit of Seller, its General
Partner and Foster Wheeler LLC, each duly executed by the IDA;.
(v) a Limited Release of the IDA, in the form of Exhibit S-1,
a Limited Release of Washington County in the form of Exhibit S-2, a
Notice of Discontinuance of counsel to Washington County in the form of
Exhibit S-3 and a Limited Release of the Trustee in the form of Exhibit
S-5 (together with the Limited Release of Seller and General Partner in
the form of Exhibit S-4, the "ARRA-County Releases"), duly executed by
all relevant parties, with respect to certain litigation between the
Seller and Washington County; provided, however, that with respect to
such Limited Release of the Trustee only, the parties shall use
reasonable efforts to cause delivery to Seller of same but such
delivery shall not be a condition to Closing;
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(vi) a Service Agreement Settlement Agreement between the
Seller and IDA in the form of Exhibit U (the "Service Agreement
Settlement Agreement"), duly executed by the IDA pursuant to which
Seller and IDA shall provide for an accounting, final reconciliation
and settlement of all fees or other amounts due to or from Seller under
the Service Agreement, Seller's Bond Documents and the PPA with respect
to the period before the Closing Date. Notwithstanding the assignment
of the Service Agreement by Seller to WTI at Closing, WTI shall not be
responsible for or retain any obligation or liability of Seller to IDA
with respect to the Service Agreement Settlement Agreement or any other
Liabilities of Seller to IDA arising with respect to the period prior
to the Closing other than Liabilities arising from WTI's negligence,
recklessness or willful misconduct prior to Closing;
(vii) a deed from the IDA in favor of Seller conveying the
Northern Parcels to Seller free and clear of all Liens, except those
created by or in favor of the Seller and its Affiliates or any
Permitted Encumbrances (as defined in the Bond Indenture); provided,
however, that the conveyance shall be free and clear of any Liens
arising or existing in connection with the Bond Indenture and/or the
Installment Sale Agreement; and
(viii) all Returns with respect to Transfer Taxes that are to
be filed in connection with the Closing pursuant to Section 5.1 hereof.
(e) At Closing, Seller will execute and deliver to the IDA each of the
ARRA-IDA Deliverables to which Seller is a party.
(f) At Closing, WTI shall cause the IDA to deliver each of the IDA-ARRA
Deliverables to Seller.
(g) At Closing, there shall also be delivered to Seller and Purchasers
the opinions, certificates and other contracts, documents and instruments
required to be delivered under Articles VII and VIII.
(h) WTI shall cause the IDA to deliver such additional documents and
instruments and take such additional actions as necessary to consummate the
transactions contemplated by this Agreement.
Section 1.5 Proration; Reserved Construction Contract Rights.
(a) Proration. To the extent not included in the Passthrough Costs (as
defined in the Service Agreement) and allocated under the Service Agreement
Settlement Agreement, the amount of charges for sewer, water, telephone,
electricity and other utilities and any Taxes in the nature of ad valorem Taxes
relating to the Real Property, the Tangible Personal Property and the ownership
and operation of the Facility ("Straddle Expenses") will be allocated pro rata
per diem for the tax year (or other applicable payment period) that includes the
date of Closing, with Seller liable for such items to the extent they are
allocable to the period prior to the date of the Closing and the applicable
Purchasers liable for such items, to the extent they are allocable to periods
beginning with and subsequent to the Closing. Seller will arrange for the cutoff
of telephone, water, sewer and electricity utility service at the Facility at
the Closing Date and it shall be WTI's responsibility to arrange for restoration
of service from these utilities on and following the Closing Date. Except as
otherwise agreed by the parties, the net amount of all such pro-rations will be
settled and paid pursuant to paragraph 1.5(b).
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(b) The parties agree that, regardless of which party receives an
invoice therefor, Seller shall remain liable for costs of goods or other
property delivered prior to Closing and for services performed prior to Closing,
and WTI shall be liable for costs of goods and other property delivered pursuant
to a Business Contract after the Closing (even if Seller ordered the same prior
to Closing) and for services to be performed after Closing pursuant to a
Business Contract. At Closing, the parties shall use reasonable efforts to
reconcile these costs based on purchase orders issued by Seller prior to Closing
for such goods, property and/or services and to effect a cash adjustment (a
"Cutoff Payment"). After Closing, if either party receives an invoice or payment
demand for which the other party is liable (and for which the receiving party
has not received the cash adjustment provided for in the previous sentence) it
shall forward a copy of such invoice or payment demand to the other party along
with a notice directing the other party to reimburse the receiving party or to
pay the invoice or payment demand directly, and the responsible party shall pay
the invoice or reimburse the other party within ten (10) days of receipt of such
invoice. Each party shall have the right to contest any invoice in good faith,
and at its own expense, provided such contesting party provides written notice
of its intent to contest to the other party, which notice shall provide the
contesting party's express agreement to indemnify the other party for any Claims
incurred as a result of the contested invoice. Seller shall remain solely liable
for any Retained Liabilities, whether arising before, on or after the Closing
Date. WTI shall be solely liable for any WTI Assumed Liabilities whether arising
before, on or after the Closing Date.
(c) Reserved Construction Contract Rights. The parties hereto hereby
acknowledge and agree that notwithstanding the assignment by Seller to WTI at
the Closing of all of the Seller's right, title and interest in, to and under
that certain Second Amended and Restated Construction Contract, dated as of
October 28, 1988 and as amended through January 20, 1989, between the IDA and
Seller (the "Construction Contract"), Seller shall retain, equally but severally
with WTI, the rights of Seller against the IDA (including but not limited to the
right to receive payments and indemnity from the IDA for certain environmental
matters) pursuant to and under, and to enforce the provisions of, Sections
2.02(c) and 11.03 of the Construction Contract (collectively, the "Reserved
Construction Contract Rights"). The Reserved Construction Contract Rights shall,
at the Closing, be assigned to WTI but shall also be held and retained by Seller
concurrently with WTI. Such retention shall be without prejudice to the
assignment by Seller to WTI of such Reserved Construction Contract Rights as
provided herein and in the WTI Assignment Instruments (including, without
limitation, the ability of WTI and Seller to each exercise fully and
independently their rights with respect thereto). The IDA has consented to such
retention by Seller in its consent to assignment of the Service Agreement to WTI
and in the ARRA-IDA Mutual Release.
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(d) The parties recognize that after the Closing Date mail or other
correspondence addressed to Seller may be delivered to the Facility and
correspondence from Governmental Authorities may be addressed to Seller, even
though it relates to matters for which WTI is responsible or may have an
interest. After the Closing, WTI may (i) open mail or other items delivered to
the Facility that are addressed to Seller to determine whether such mail or
other items relate to matters that are WTI's responsibility and (ii) retain
copies of any such opened mail or other deliveries. Notwithstanding the
foregoing, for a period of ninety (90) days after Closing WTI shall forward to
Seller or Seller's designee all mail or other deliveries addressed to Seller,
and thereafter WTI may elect to refuse delivery of mail or other items addressed
to Seller. Seller shall provide to WTI with copies of correspondence relating to
the Facility from Governmental Authorities that Seller receives after the
Closing which relate to matters that are WTI's responsibility.
Section 1.6 Purchaser Approvals and Third Party Consents.
(a) Purchaser Approvals. WTI, with Seller's cooperation, shall use
Commercially Reasonable Efforts to obtain (i) written approvals of Governmental
Authorities for Seller to transfer (or if appropriate, the reissuing authority
to reissue) the Transferable Permits to WTI as of Closing, (ii) the approvals of
the IDA, Washington County and Warren County to the Restructuring and the
transactions contemplated thereby and the execution and performance of the
Facility Transfer Agreement, including but not limited to all IDA-ARRA
Deliverables and (iii) permits listed on the Purchaser Approvals Schedule
(collectively, "Purchaser Approvals"). Seller agrees to cooperate with WTI in
securing the Purchaser Approvals and shall bear any expenses it incurs in
connection with such cooperation. WTI shall bear all other costs in connection
with securing such Purchaser Approvals.
(b) Business Contracts. WTI shall use Commercially Reasonable Efforts
to obtain the consents of counterparties to the Business Contracts being
assigned to WTI pursuant to this Agreement; provided, that such obligation shall
extend only to those Business Contracts that are listed on the Business
Contracts Schedule and identified on the Approvals Schedule as having an
explicit contractual provision that prohibits the assignment of Seller's
obligations thereunder to WTI (an "Anti-Assignment Clause"). If there is a
Contract listed on the Business Contracts Schedule which in fact has an
Anti-Assignment Clause, but is not identified on the Approvals Schedule as
having an Anti-Assignment Clause and the assumption of such Contract would cause
a Material Adverse Effect, WTI may, but shall not be obligated to, either (x)
use Commercially Reasonable Efforts to obtain the counterparties' consent to
assignment or (y) assume such Contract (unless WTI shall have been furnished
with a consent to the assignment thereof at or prior to Closing, in which case
WTI shall be obligated to assume it). Seller shall not be liable to WTI for
Claims arising out of the assignment of any Business Contract listed on the
Business Contracts Schedule that does not have an Anti-Assignment Clause. Seller
agrees to cooperate with WTI in obtaining such consents and shall bear any
expenses it incurs in connection with such cooperation. WTI shall bear all other
costs related to the obtaining of such counterparty consents.
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(c) To the extent that any Business Contract, Assigned Intellectual
Property, Warranty or Transferable Permit is not assignable or transferable
without the consent of another party or the approval of, or filing with, a
Governmental Authority, the execution of this Agreement, in and of itself, shall
not constitute an assignment or an attempted assignment or transfer thereof.
Section 1.7 Risk of Loss to Assets; Damage to Facility.
(a) During the Post-Signing Period, all risk of loss or damage to the
property included in the Assets (including the Facility and the Facility Site)
shall be borne by Seller, other than loss or damage caused by the acts or
negligence of WTI or its representative, which loss or damage shall be the
responsibility of WTI.
(b) If during the Post-Signing Period any of the Assets (including the
Facility and the Facility Site) is destroyed or damaged or taken in condemnation
(collectively, a "Loss Event"), (i) Seller shall promptly notify WTI of such
Loss Event, (ii) prior to the Closing, Seller shall, at its expense, repair,
replace or take such other action with respect to the Assets, the Facility
and/or such Loss Event so that the damaged, destroyed or taken property is
restored to a condition that meets the requirements of the Service Agreement and
the Seller's Bond Documents and the Facility is fully operational ("Corrective
Action"), (iii) Seller may retain any and all available insurance or other
proceeds related thereto, as and to the extent required under (and subject to
and in accordance with) the existing provisions of the Service Agreement and
Seller's Bond Documents, and (iv) once the Corrective Action has been completed,
the Closing shall occur as scheduled.
(c) If the insurance or other proceeds arising from the Loss Event are
not available to Seller for the Corrective Action due to the filing with the
Trustee of the certificate described in clause (ii) of the first sentence of
Section 7.3 of the Installment Sale Agreement or the certificate described in
Sections 7.4(a) or 7.4(b)(1) of the Installment Sale Agreement (as applicable),
and WTI does not elect to waive the requirements of this Section 1.7 for
Corrective Action, either party may terminate this Agreement upon twenty (20)
day's notice to the other party and to the IDA.
(d) In the event that WTI desires to perform such Corrective Action in
lieu of Seller, the parties will in good faith attempt to negotiate the terms
and conditions under which WTI shall perform such Corrective Action and, if
mutually agreed to, shall execute a written agreement setting forth such terms
and conditions, and Seller shall make available to WTI any insurance proceeds to
which Seller is entitled under the existing Service Agreement and Seller's Bond
Documents to be applied towards WTI's Corrective Action costs in accordance with
such written agreement. In the event that Seller, with WTI's consent, performs
any Corrective Action which continues after the Closing, Seller shall indemnify,
defend and hold harmless the Purchaser Indemnified Parties from and against
Claims asserted against, imposed upon or incurred by a Purchaser Indemnitee as a
result of or in connection with any negligence of Seller or of Seller's agents,
representatives and/or independent contractors engaged by Seller in performing
such Corrective Action.
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The provisions of this Section 1.7 shall be construed as express
provisions in lieu of the provisions Section 5-1311 of the New York State
General Obligations Law, the Uniform Vendor and Purchaser Risk Act, which the
parties agree shall be inapplicable to the transactions contemplated hereby.
Section 1.8 Post-Closing Cooperation and Access; Further Assurances.
(a) To the extent that Seller's rights under any Warranty may not be
assigned without the consent of another Person, which consent has not been
obtained by the Closing Date, this Agreement shall not constitute an agreement
to assign same, if an attempted assignment would constitute a breach thereof, or
be unlawful. Seller and WTI agree that if any consent to an assignment of any
such Warranty shall not be obtained, or if any attempted assignment would be
ineffective or would impair WTI's rights and obligations under the Warranty in
question, so that WTI would not in effect acquire the benefit of all such rights
and obligations, Seller, at WTI's expense, shall use Commercially Reasonable
Efforts, to the extent permitted by Law and such Warranty, to enforce such
Warranty for the benefit of WTI so as to provide WTI, to the maximum extent
possible, with the benefits and obligations of such Warranty.
(b) Subject to the terms and conditions of this Agreement, at any time
or from time to time after the Closing, at the other party's request and without
further consideration, Seller and WTI, as applicable, shall (at the expense of
the requesting party) execute and deliver to the party making such request such
other instruments of sale, transfer, conveyance, assumption, release, consent,
assignment and confirmation, provide such materials and information and take
such other actions as the requesting party may reasonably deem necessary or
desirable in order more effectively to consummate the transactions contemplated
by this Agreement. In furtherance of, and without limiting, the foregoing,
promptly following the Closing WTI and Seller shall, at WTI's expense, jointly
notify all counterparties to all Business Contracts (including, without
limitation, purchase orders) of the assignment of such Business Contracts to
WTI. The notice given to counterparties shall contain instructions to such
counterparties, consistent with Section 1.1(b)(vii) and the definition of WTI
Assumed Liabilities, as to the making of payments due or payable under such
Business Contracts.
(c) Following the Closing, each party will afford the other party, its
counsel and its accountants, during normal business hours, reasonable access to
the books, records and other data relating to Seller or the operation of the
Facility in its possession with respect to periods prior to the Closing and the
right to make copies and extracts therefrom, to the extent that such access may
be reasonably required by the requesting party in connection with the Assets,
including (i) the preparation of Returns, (ii) the determination or enforcement
of rights and obligations under this Agreement, (iii) compliance with the
requirements of any Governmental Authority, (iv) the determination or
enforcement of the rights and obligations of any Indemnified Party or (v) in
connection with any actual or threatened action or proceeding. Further, each
party agrees for a period extending six (6) years after the Closing not to
destroy or otherwise dispose of any such books, records and other data unless
such party shall first offer in writing to surrender such books, records and
other data to the other party and such other party shall not agree in writing to
take possession thereof during the thirty (30) day period after such offer is
made. Any such information obtained by such party in accordance with this
paragraph shall be subject to the Confidentiality Agreement.
15
(d) If, in order properly to prepare its Returns, other documents or
reports required to be filed with Governmental Authorities or its financial
statements or to fulfill its obligations hereunder, it is necessary that a party
be furnished with additional information, documents or records relating to the
operation of the Facility not referred to in paragraph (c) above, and such
information, documents or records are in the possession or control of the other
party, such other party shall use its Commercially Reasonable Efforts to furnish
or make available such information, documents or records (or copies thereof) at
the recipient's request, cost and expense. Any information obtained by such
party in accordance with this paragraph shall be subject to the Confidentiality
Agreement.
(e) Notwithstanding anything to the contrary contained in this Section
1.8, if the parties are in an adversarial relationship in litigation or
arbitration, the furnishing of information, documents or records in accordance
with paragraphs (c) or (d) of this Section 1.8 shall be subject to applicable
rules relating to discovery and not the foregoing provisions.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to WTI as follows:
Section 2.1 Existence of Seller.
Seller is a limited partnership duly formed, validly existing and in
good standing under the Laws of the State of New York, and has full limited
partnership power and authority to occupy, operate and maintain the Facility as
and to the extent now conducted and to own, use, lease, occupy and/or operate
the Assets as and to the extent now conducted. Seller is duly qualified or
licensed to do business as a foreign limited partnership and is in good standing
in each jurisdiction in which the Assets make 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 create a Material Adverse
Effect. Seller has heretofore made available to WTI complete and correct copies
of its Certificate of Limited Partnership and Limited Partnership Agreement, as
currently in effect.
Section 2.2 Authority.
Seller has full limited partnership power and authority to execute and
deliver this Agreement and the other Transfer Agreements to which it is a party,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, including to sell and transfer
(pursuant to this Agreement) the Assets. The execution and delivery by Seller of
this Agreement and the other Transfer Agreements to which it is a party, and the
performance by Seller of its obligations hereunder and thereunder, have been
duly and validly authorized in accordance with Seller's limited partnership
agreement, with no other partnership action on the part of Seller or its
Partners being necessary. This Agreement has been duly and validly executed and
delivered by Seller and constitutes, and, upon the execution and delivery by
Seller of the other Transfer Agreements to which it is a party, such other
Transfer Agreements will constitute, legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their terms, except as the
same may be limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar Laws relating to or affecting the rights of
creditors generally, or by general equitable principles.
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Section 2.3 No Conflicts.
Other than obtaining Purchaser Approvals, the execution and delivery by
Seller of this Agreement do not, and the execution and delivery by Seller of the
other Transfer Agreements to which it is a party, the performance by Seller of
its obligations under this Agreement and such other Transfer Agreements and the
consummation of the transactions contemplated hereby and thereby will not:
(i) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of Seller's certificate of limited
partnership or Seller's limited partnership agreement;
(ii) require any consent, approval, authorization, permit or
other action of or filing with or notification to, any Governmental
Authority, or except as set forth in the Approvals Schedule with
respect to any Business Contracts containing an Anti-Assignment Clause,
any other Person;
(iii) except as set forth in the Approvals Schedule and/or the
Business Contracts Schedule, result in a default (or give rise to any
right of termination, cancellation or acceleration or require any
consent or approval) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which Seller is a party or by which Seller,
or any of the Assets may be bound (excluding Seller's Bond Documents),
except for such defaults (or rights of termination, cancellation or
acceleration or any consent or approval) as to which requisite waivers
or consents have been obtained;
(iv) conflict with or result in a violation or breach of any
term or provision of any Law applicable to Seller or any of its Assets;
or
(v) conflict with or result in a violation or breach of any
term or provision of any Order applicable to Seller or any of its
Assets.
other than, in the case of clauses (ii) through (iv), failures, defaults,
violations, conflicts and breaches which would not prevent Seller from
performing its material obligations under this Agreement or result in a Material
Adverse Effect.
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Section 2.4 Reserved.
Section 2.5 Financial Statements.
Seller has heretofore furnished WTI with its audited consolidated
balance sheets as of December 28, 2001, and December 27, 2002 and the related
consolidated statements of income, partners' equity and cash flows for the
fiscal years then ended, all certified by Seller's independent accountants (the
"Financial Statements"). The consolidated balance sheet of Seller as of December
27, 2002, is hereinafter referred to as the "Balance Sheet" and December 27,
2002, as the "Balance Sheet Date". The Financial Statements, including the notes
thereto, have been prepared in accordance with the books and records of Seller
and with generally accepted accounting principles ("GAAP") and fairly present in
all material respects the consolidated financial condition of Seller as of the
Balance Sheet Date and for the periods indicated. Seller also has heretofore
furnished WTI with the unaudited consolidated balance sheets as of May 23, 2003
(the "May Balance Sheet") and the related consolidated statements of income,
partner's equity, cash flows for the period ended May 23, 2003 and accounts
receivable and accounts payable aging schedules as of such date (the "May
Financial Statements"). The May Financial Statements (other than the accounts
receivable and accounts payable aging schedules) have been prepared in
accordance with the books and records of Seller and with GAAP and fairly present
in all material respects the consolidated financial condition of Seller as of
May 23, 2003 and for the periods indicated, subject to normal year-end audit
adjustments. Seller does not have any known liabilities, contingent or
otherwise, asserted or unasserted, not shown on the May Balance Sheet except as
set forth on the Financial Statement Schedule and other than those which would
not result in a Material Adverse Effect or those liabilities incurred in the
ordinary course of business consistent with past practices after May 23, 2003.
Seller does not own any material assets except for those reflected in the May
Balance Sheet and other assets acquired by Seller after May 23, 2003 in the
ordinary course of business consistent with its past practices.
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Section 2.6 Personal Property.
(a) Seller has good and valid title to (i) all of its tangible and
intangible personal properties and assets including, without limitation, all of
the tangible and intangible personal properties and assets reflected in the May
Balance Sheet, except as disposed of in the ordinary course of business
consistent with past practices since May 23, 2003, and (ii) all of the tangible
and intangible personal properties and assets purchased by Seller since May 23,
2003, in each case with respect to the property described in (i) and (ii) above,
free and clear of all Liens (other than Permitted Liens), except as set forth on
the Personal Property Schedule. (The tangible and intangible personal properties
and assets referenced above in (i) and (ii) shall be referred to collectively as
the "Personal Property.")
(b) Except as set forth on the Personal Property Schedule, all of the
Personal Property is in good operating condition and repair, ordinary wear and
tear excepted, except where the failure of any such Personal Property to be in
such condition and repair would not have a Material Adverse Effect. The Personal
Property Schedule also contains a listing of all Personal Property as of the
applicable date(s) set forth therein that is material to the operation and
maintenance of the Facility.
(c) Seller has not transferred or, except for Permitted Liens,
encumbered its interest in the Installment Sale Agreement or entered into an
obligation to do so.
Section 2.7 Owned and Leased Real Property; Rights under
Installment Sale Agreement.
(a) The Real Property Schedule contains an accurate and complete list
of all real property owned or leased in whole or in part by Seller. In addition
to the real property owned or leased by Seller, the Real Property Schedule
describes the Facility, the Facility Site and the Northern Parcels, which are
not owned or leased by Seller but are occupied and operated by Seller pursuant
to the terms of the Installment Sale Agreement and the Service Agreement or
otherwise with the acquiescence of the IDA. Seller has good and clear record,
valid, indefeasible and marketable title in fee simple to the real property
owned by Seller, free and clear of all Liens except for Permitted Liens and a
valid leasehold interest in all real property leased by Seller free and clear of
all Liens except Permitted Liens.
(b) Except as described in the Real Property Schedule, all of the
buildings, structures, improvements and appurtenances situated on the Real
Property are in good operating condition and repair, ordinary wear and tear
excepted, except where the failure to be in such condition would not have a
Material Adverse Effect.
(c) Seller has not, at any time during the last five years, received
written notice from any Governmental Authority that its occupancy or operation
of the Facility is not in accordance with any zoning, land use or building Law
or the Facility is not in compliance with all set-back, zoning and land use
restrictions.
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Section 2.8 Business Contracts.
(a) Except as set forth in the Business Contracts Schedule, Seller is
not a party to, and is not bound by any of the following Contracts (a "Material
Contract"):
(i) any agreement or contract relating to the employment of
any Person by Seller, or any independent contractor relationship which
(x) results in annual obligations of Seller in excess of $50,000 or (y)
may not be terminated without penalty (other than any severance
payments required by Law) by Seller within twelve (12) months;
(ii) any bonus, incentive compensation, deferred compensation,
pension, profit sharing, stock option, employee stock purchase,
severance pay, retirement insurance, or other employee benefit plan
which (x) results in annual obligations of Seller in excess of (A) in
the case of group plans, $1,000,000 and (B) in the case of individual
plans, $100,000 or (y) may not be terminated without penalty by Seller
within twelve (12) months;
(iii) any agreement or contract relating to capital
expenditures in excess of, in each case, $25,000 for any single
transaction or an aggregate of $50,000 during any calendar year for any
series of transactions;
(iv) any loan (other than accounts receivable from trade
debtors arising in the ordinary course of business) or advance to
(other than travel or entertainment advances to employees made in the
ordinary course of business), or investment in, any Person or any
agreement or contract relating to the making of any loan, advance or
investment in excess of, in each case, $25,000 for any single
transaction or an aggregate of $50,000 during any calendar year for any
series of transactions;
(v) any agreement relating to indebtedness for borrowed money;
(vi) any guarantee or other contingent liability in respect of
any indebtedness for borrowed money or obligation of any other Person
(other than the endorsement of negotiable instruments for collection in
the ordinary course of business);
(vii) any material management service, financial advisory or
any other similar type of contract including, without limitation, any
contract with any investment or commercial bank (excluding bank account
or deposit agreements in the ordinary course of business);
(viii) any agreement or contract materially limiting the
ability of Seller to engage in any line of business or to compete with
any Person;
(ix) any collective bargaining agreement, labor contract or
other written or oral agreement with any labor union or any employee
organization;
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(x) any agreement which contains any provisions requiring
Seller to indemnify any party thereto where there is, as of the date
hereof, a substantial likelihood that such indemnification will be
asserted against Seller and, if successfully asserted against Seller,
would result in a Material Adverse Effect;
(xi) any agreement for the sale of any assets of Seller or the
grant of any preferential rights to purchase any of Seller's assets or
rights, other than in the ordinary course of business;
(xii) any other agreement or contract which involves an amount
in excess of $25,000 for any single transaction or an aggregate of
$50,000 during any calendar year for any series of transactions and
which may not be terminated by Seller without penalty within twelve
(12) months; or
(xiii) any agreement or contract with any Affiliate.
(b) Except as disclosed on the Business Contract Schedule, Seller has
made available to WTI accurate and complete copies (including all amendments,
modifications and supplements) of all Business Contracts that are Material
Contracts and the other Business Contracts listed in the Business Contracts
Schedule. Except as set forth on the Business Contracts Schedule: (i) none of
Seller or, to the Knowledge of Seller, any other party to a Business Contract is
in default in any material respect under any of the Business Contracts, and,
with respect to Seller or, to the Knowledge of Seller, any other party to a
Business Contract, there has not occurred any event which (whether with or
without notice, lapse of time or the happening or occurrence of any other event)
would constitute such a default thereunder; (ii) each Business Contract is in
full force and effect and is valid, binding and enforceable in accordance with
its terms against Seller, and to the Knowledge of Seller, any counterparties to
such Business Contracts, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws
affecting the rights of creditors generally or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding of law
or equity); and (iii) all necessary governmental approvals with respect to each
Business Contract have been obtained by Seller or, to the Knowledge of Seller,
any other party thereto, all necessary filings or registrations therefor have
been made, and there have been no threatened cancellations thereof and there are
no outstanding material disputes thereunder. To the Knowledge of Seller, no
counterparty to any Business Contract has asserted that such Business Contract
is not valid, binding and enforceable against such counterparty except as set
forth in the Business Contract Schedule.
Section 2.9 Permits.
(a) Except as set forth in the Permits Schedule, Seller has obtained
and possesses all governmental licenses, permits, franchises and other
authorizations (including any Environmental Permits) of, and has made all
required registrations or filings with, any Governmental Authority related to
the ownership of its properties or the operation of its assets and business as
currently conducted (collectively, the "Permits") other than those the failure
of which to obtain or possess or make would not have a Material Adverse Effect.
A copy of each such Permit has been delivered or made available to WTI. The
Permits Schedule contains an accurate and complete list of all material Permits
and, except as may be set forth on the Permits Schedule, all such Permits are in
full force and effect except for those the failure of which to be in full force
and effect would not have a Material Adverse Effect.
21
(b) Except as set forth in the Permits Schedule, Seller is in
compliance with all Permits other than Environmental Permits (which are
addressed in Section 2.14) except where the non-compliance would not have a
Material Adverse Effect. No proceedings against Seller are pending or, to the
Knowledge of Seller, threatened, seeking the revocation or suspension of any
Permits other than Environmental Permits, (which are addressed in Section 2.14,)
which Permit suspension or revocation could have a Material Adverse Effect.
Section 2.10 Litigation.
(a) Except as set forth on the Litigation Schedule, there is no action,
suit, proceeding at law or in equity, arbitration or administrative or other
proceeding by or before or, to the Knowledge of Seller, any investigation by,
any Governmental Authority, pending, or, to the Knowledge of Seller, threatened
against or affecting Seller or any of its properties or rights.
(b) Except as set forth on the Litigation Schedule and except for
Orders under Environmental Laws (which are addressed in Section 2.14), Seller is
not subject to any Order entered in any lawsuit or proceeding that is in effect
and adversely affects Seller's operation of the Facility.
Section 2.11 Taxes.
(a) Returns. Except as set forth on the Tax Schedule, Seller has timely
filed or caused to be timely filed with the appropriate taxing authorities all
Returns that are required by Law to be filed by, or with respect to, Seller for
taxable years, periods or portions thereof ending on or prior to the Closing
Date (a "Pre-Closing Period") (taking into account any extension of time to file
granted to or on behalf of Seller). Such Returns are true and complete in all
material respects.
(b) Payment of Taxes. Except as set forth on the Tax Schedule, all
Taxes and Tax liabilities of Seller due for all Pre-Closing Periods have been
timely paid in full on or prior to the Closing Date or accrued and adequately
disclosed and fully provided for on the books and records of Seller in
accordance with GAAP. Seller has withheld and paid when due all Taxes required
to have been withheld and paid in connection with amounts paid or owing to any
Employee or other Person.
(c) Other Tax Matters. Except as set forth on the Tax Schedule, neither
Seller nor any of the Partners have, as of the Closing Date, entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the assessment, payment or
collection of Taxes of Seller, and no deficiency assessment or proposed
adjustment with respect to any Tax liability of Seller for any taxable period is
pending or, to the Knowledge of Seller, threatened in writing. There are no tax
liens for any Taxes which are presently due but unpaid upon any property of
Seller, and none of the Partners are subject to any Tax liability that will
result in a lien on the assets of Seller. There are no rulings, audits, claims,
assessable levies, administrative proceedings, lawsuits or unresolved issues of
fact or Law with respect to any Tax liability pending or, to the Knowledge of
Seller, threatened in writing against Seller. Seller has not received a Tax
ruling or entered into a closing agreement with any taxing authority that could
reasonably be expected to have a continuing adverse affect on it after the
Closing Date.
22
Section 2.12 Intellectual Property.
(a) The Intellectual Property Schedule contains an accurate and
complete list of all patents, and patent rights, trademarks and trademark
rights, trade names and trade name rights, service marks and service mark
rights, service names and service name rights, brand names, copyrights and
copyright rights and all pending applications for and registrations of patents,
trademarks, service marks and copyrights owned or licensed by Seller, but
excluding the Foster Wheeler Intellectual Property or any Foster Wheeler
Technology (collectively, "Intellectual Property").
(b) Except as set forth on the Intellectual Property Schedule, Seller
owns all right, title and interest in the Assigned Intellectual Property free
and clear of all Liens (other than Permitted Liens), including, without
limitation, rights to use, sell, transfer, assign and license the same, except
where the failure to own or have such rights to such Assigned Intellectual
Property could not reasonably be expected to have a Material Adverse Effect.
Except as set forth on the Intellectual Property Schedule, all patents, patent
applications, trademarks, trademark applications and registrations and
copyrights listed on such Schedule owned by Seller have been duly registered
with, filed in, or issued by the appropriate domestic or foreign governmental
agency and, to the Knowledge of Seller, each such registration, filing and
issuance remains in full force and effect.
Except as set forth in the Intellectual Property Schedule, Seller has
not granted any licenses or other rights (and has no obligations to grant
licenses or other rights) to any Assigned Intellectual Property that would
interfere with or limit a Purchaser's use thereof or give rise to any obligation
to pay any royalty or fee for the use or continued use thereof as currently used
at the Facility.
(c) Except as set forth on the Intellectual Property Schedule, Seller
is not, and as of the Closing will not be, infringing upon any patent,
copyright, trademark right, or other intellectual property right of an Affiliate
of Seller or, to the Knowledge of Seller, any other Person. Except as set forth
on the Intellectual Property Schedule, no claim adverse to the interests of
Seller in the Assigned Intellectual Property has been made, no claim adverse to
the interests of Seller in the Intellectual Property licensed by Seller has been
made to the Knowledge of Seller, or, in either case, to the Knowledge of Seller,
threatened in litigation or otherwise in writing which would have a Material
Adverse Effect. Seller has made no claim against any person alleging violation
or infringement of its rights to the Intellectual Property and, to the Knowledge
of Seller, there is no basis for such claim.
23
Section 2.13 Employee Benefit Plans.
(a) Except as set forth in Employee Benefits Schedule, Seller does not
(i) maintain any Plan or Other Arrangement, (ii) is a party or contributor to
any Plan or Other Arrangement or (iii) has obligations under any Plan or Other
Arrangement in which Seller's current or former employees participate.
(b) Seller made available to WTI true and complete copies of each of
the following: (i) the terms of each Plan; (ii) all related trust agreements or
annuity agreements for each Plan; (iii) for the most recent plan year, all
annual reports (Form 5500 series) on each Plan that have been filed with any
governmental agency; (iv) the current summary plan description and subsequent
summaries of material modifications, if any, for each Plan; and (v) all IRS
favorable determination letters relating to any Plan. For each Other
Arrangement, Seller has made available to WTI true and complete copies of each
policy, agreement or other document setting forth or explaining the terms of the
Other Arrangement covering current or former employees of Seller, all related
trust agreements or other funding documents (including, without limitation,
insurance contracts, certificates of deposit, money market accounts, etc.), all
employee communications, all correspondence or other submissions with any
governmental agency, and all agreements with service providers or fiduciaries
for providing services on behalf of any Other Arrangement.
(c) No Plan is a Multiemployer Plan, and Seller has not withdrawn from
a Multiemployer Plan within the last six years.
(d) Seller does not sponsor or maintain and has not sponsored or
maintained an Individual Account Plan that is a Statutory-Waiver Plan, and no
current or former employees of Seller participates in a Statutory Waiver Plan.
(e) Seller has timely made all contributions and other payments
required by and due under the terms of each Plan and Other Arrangement and has
taken no action (including, without limitation, actions required by Law)
relating to any Plan or Other Arrangement that will increase Seller's obligation
under any Plan or Other Arrangement.
(f) The Employee Benefits Schedule sets forth a list of all Qualified
Plans. To the Knowledge of Seller all Qualified Plans and any related trust
agreements or annuity agreements (or any other funding document) comply with
ERISA and the Code (including, without limitation, the requirements for Tax
qualification described in Section 401 thereof), securities laws and all other
Laws. The trusts established under such Plans are exempt from federal income
taxes under Section 501(a) of the Code. The plan sponsor has received
determination letters issued by the IRS with respect to each Qualified Plan, and
the Seller has made available to WTI true and complete copies of all such
determination letters. All statements made by or on behalf of Seller to the IRS
in connection with applications for determinations with respect to each
Qualified Plan were true and complete when made and continue to be true and
complete. Nothing has occurred since the date of the most recent applicable
determination letter that would adversely affect the tax-qualified status of any
Qualified Plan.
24
(g) Seller has complied with all applicable reporting and disclosure
provisions of Sections 101-109 and 204 of ERISA, and the fiduciary
responsibility rules of Sections 401-406 of ERISA in connection with the Plans
covering current and former employees of Seller, and, to the Knowledge of
Seller, Seller has complied with the Code, ERISA and all other Laws pertaining
to the Plans, Other Arrangements and other employee or employment related
benefits, and all premiums and assessments relating to all Plans or Other
Arrangements. There are no pending administrative audits, charges or claims or
lawsuits before any court, governmental agency, regulatory body, or arbiter
arising under any Law governing any Plan, and to the Knowledge of Seller, there
exist no facts that could give rise to such a claim.
(h) Neither Seller nor any fiduciary of the Plans has engaged in a
violation of Section 406(a) or 406(b) of ERISA involving a Plan for which the
applicable statute of limitations has not yet run, or for which no exemption
exists under Section 408 of ERISA or under Section 4975(c)(2) or 4975(d) of the
Code.
(i) No Plan has experienced a "reportable event" (as such term is
defined in Section 4043(b) of ERISA) that is not currently subject to an
administrative or statutory waiver from the reporting requirement.
(j) Seller does not sponsor or maintain and has not sponsored or
maintained a Plan that provides or provided for post-retirement medical, life
insurance or other benefits (excluding COBRA continuation coverage provided
under Seller's group health plans), whether previously due, or due now or in the
future, to current, former or retired employees of Seller.
(k) All Welfare Plans and the related trusts that are subject to
Section 4980B(f) of the Code and Sections 601 through 607 of ERISA comply with
and have been administered in compliance with the health care
continuation-coverage requirements for tax-favored status under Section 4980B(f)
of the Code (formerly Section 162(k) of the Code), Sections 601 through 607 of
ERISA, increased portability and other rules of Sections 609, 701-732 of ERISA
and all proposed or final regulations explaining those requirements.
Section 2.14 Environmental Laws and Regulations.
Except as set forth on the Environmental Matters Schedule or in the
case of paragraphs (a)(i), (ii) and (iii), (b)(i) and (c)(i) and (ii) as would
not have a Material Adverse Effect:
(a) Compliance.
(i) Seller has previously complied with all Environmental Laws
or has resolved any non-compliance to the satisfaction of the
Governmental Authority having jurisdiction over Seller.
25
(ii) Seller is currently in compliance with, and the Assets
and Properties and all improvements thereon are currently in compliance
with, all Environmental Laws.
(iii) Seller has filed all notices and reports with
Governmental Authorities, and has maintained all information,
documentation and records, required by Environmental Laws for the
operation of the Assets and Properties and of Seller's business as
currently conducted.
(iv) There are no outstanding or pending Orders (unilateral or
by consent), notices of violation, fines, penalties or other monetary
payments affecting any of the Assets and Properties or Seller's
business under Environmental Laws.
(b) Liabilities.
(i) To the Knowledge of Seller, Seller does not have any
liability under any Environmental Law, nor is Seller responsible for
any such liability of any other Person under any Environmental Law.
(ii) There are no pending, or to the Knowledge of Seller,
threatened Seller Environmental Claims.
(c) Environmental Permits.
(i) Seller has been duly issued, and currently has in full
force and effect all Environmental Permits necessary to own and operate
the Assets and Properties and the business of Seller as currently owned
and operated.
(ii) A true and complete list of all Environmental Permits,
all of which are valid and in full force and effect, is set out in the
Permits Schedule. Seller has timely filed renewal applications for all
such Environmental Permits.
(iii) Other than generally set forth under existing Laws,
Seller has not been notified in writing by any Governmental Authority
that any Environmental Permit may be modified, suspended, reissued or
revoked or may not be renewed or otherwise obtained in the ordinary
course of business.
(d) Releases and Property Conditions.
(i) The Parcel contains no underground improvements, including
but not limited to treatment or storage tanks, or underground piping
associated with such tanks, used currently or at any time in the past
by Seller for the management of Hazardous Materials.
(ii) During Seller's use and/or occupancy thereof, (1) there
has never been any use of the Parcel as a dump or landfill, (2) there
has never been any destruction of any wetlands on the Real Property or
filling in of land thereon, and (3) to the Knowledge of Seller, no PCBs
or asbestos-containing materials are present on or in the Parcel or the
improvements thereon.
26
(iii) There has been no Release of Hazardous Materials at, on,
under, or from the Parcel at any time during Seller's use and/or
occupancy thereof, nor has there been a Release by Seller or, to the
Knowledge of Seller a Release by any other Person, of Hazardous
Materials at, on, under, or from any other real property currently or
formerly owned, operated or leased by Seller, such that Seller is or
could be liable for Remediation under Environmental Laws.
(iv) No property to which Hazardous Materials originating on
or from the Parcel or the business or assets of Seller have been sent
by Seller, or, to the Knowledge of Seller after diligent inquiry, on
which such Hazardous Materials have otherwise come to be located, is
listed or proposed to be listed on the National Priorities List, or is
listed on the Registry of Inactive Waste Disposal Sites in New York
State or any similar list in any other state, province or territory.
(v) No Lien in favor of any Person relating to or in
connection with any Seller Environmental Claim has been filed or has
attached to the Parcel.
(vi) In the ordinary course of business, Seller has maintained
a list of all hazardous chemicals used by Seller on the Parcel. Such
list does not include tetrachloroethylene, or any other chlorinated
compound designated by CAS No. 127-18-4. In addition, to the Knowledge
of Seller, at no time during Seller's use and/or occupancy of the
Parcel has any employee, contractor, or agent of Seller used at any
location on the Parcel any substance containing tetrachloroethylene, or
any other chlorinated compound designated by CAS No. 127-18-4.
(e) Documents.
(i) Seller has made available to WTI copies of all material
environmental assessments, analyses, reports, audits and other
documents in its possession or under its control that relate to the
compliance of Seller's activities with Environmental Laws, the prior
uses of the Parcel, and the environmental condition of the Parcel or
any other real property that Seller or its Partners formerly owned,
operated, or leased.
(ii) All information generated by Seller or any of its
Partners which has been furnished by Seller to WTI concerning the
compliance of Seller's activities with Environmental Laws, the prior
uses of the Parcel, or the environmental condition of the Parcel or any
other real property that Seller or its Partners formerly owned,
operated, or leased, is accurate and complete in all material respects.
(iii) To the Knowledge of Seller, all information generated by
a party other than Seller, or any of its Affiliates, which has been
furnished by Seller to WTI, concerning the compliance of Seller's
activities with Environmental Laws, the prior uses of the Parcel, or
the environmental condition of the Parcel or any other real property
that Seller or its Partners formerly owned, operated, or leased, is
accurate in all material respects.
27
Section 2.15 No Changes Since May Balance Sheet Date.
Since the date of the May Balance Sheet, except as set forth on the
Schedules, Seller has conducted its business in the ordinary course consistent
with past practice and Seller has not:
(a) by act or omission, taken a Proscribed Pre-Closing Action;
(b) had a material adverse change in its financial condition,
properties, assets, revenues, operations or business;
(c) made any change in accounting methods or practices, credit
practices or collection policies used by Seller; or
(d) agreed, whether or not in writing, to do any of the foregoing.
Section 2.16 Compliance with Laws.
Seller is in compliance with all Laws (excluding Environmental Laws
(which are addressed in Section 2.14)) applicable to Seller, except as
identified on the Permits Schedule, the Environmental Matters Schedule or the
Litigation Schedule or except to the extent that the failure to so comply would
not have a Material Adverse Effect. Except as set forth on the Permits Schedule,
the Environmental Matters Schedule or the Litigation Schedule, since January 1,
1999, Seller has not received any notice of a violation or alleged violation of
any Law (excluding Environmental Laws which are addressed in Section 2.14).
Section 2.17 Regulatory Status; QF Status of Facility.
(a) Seller, as of the date of this Agreement is not, and as of the
Closing Date will not be, subject to regulation (a) as a "public utility
company" or a "holding company," "subsidiary company" or "affiliate" thereof
under the Public Utility Holding Company Act of 1935, as in effect on the date
thereof, (b) under the Federal Power Act, as in effect on the date thereof,
other than as contemplated by 18 Code of Federal Regulations, Section
292.601(c), or (c) as an "electric utility," "public utility," or "public
service corporation" or the equivalent under any existing state law, rule, or
regulation, to the extent provided in 18 Code of Federal Regulations, Section
292.602(c). Seller is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act or an
"investment advisor" within the meaning of the Investment Company Act.
(b) As of the date of this Agreement, the Facility is, and as of the
Closing Date, the Facility will be, a "Qualifying Facility" as defined in the
Public Utility Regulatory Policies Act of 1978 and has been so certified in the
Federal Energy Regulatory Commission. The Facility has at all times during its
operation met the requirements for maintaining such status. To the Knowledge of
Seller, there is no fact or circumstance that could reasonably be expected to
result in the loss of or successful challenge to such status.
28
Section 2.18 Broker's or Finder's Fees, Etc.
Except for Lehman Brothers, Inc., whose fees, commissions and expenses
are the sole responsibility of Seller or its Affiliates, no agent, broker,
person or firm acting on behalf Seller or its Affiliates is, or will be,
entitled to any commission or broker's or finder's fees from either of the
Purchasers, or from any Affiliate of any of the Purchasers, in connection with
any of the transactions contemplated by this Agreement.
Section 2.19 Bankruptcy.
Neither Seller nor the FW Guarantor has filed any voluntary petition in
bankruptcy or been adjudicated bankrupt or insolvent, or filed any petition or
answer seeking any reorganization, liquidation, dissolution or similar relief
under any federal or state bankruptcy, insolvency or other debtor relief or
similar Law, or sought or consented to or acquiesced in the appointment of any
trustee, receiver, conservator or liquidator of all or any substantial part of
its properties. No court of competent jurisdiction has entered an order,
judgment or decree approving a petition filed against Seller or the FW Guarantor
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any federal or state bankruptcy act, or
other debtor relief or similar Law, and no other liquidator has been appointed
for Seller or the FW Guarantor, or of all or any substantial part of any of its
properties. No proceeding has been commenced or, to the Knowledge of Seller,
threatened in writing, seeking to adjudicate Seller or the FW Guarantor as
bankrupt or seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or other similar relief.
Section 2.20 Insurance.
The Insurance Schedule lists and briefly describes all policies of
property, liability, worker's compensation and other forms of insurance of any
kind owned or held by Seller. All such policies are in full force and effect.
Within the twenty-four (24) month period preceding the date of this Agreement,
Seller has not been refused any insurance with respect to the business of Seller
nor has coverage been limited in a manner adverse to such party by any insurance
carrier to which Seller has applied for any such coverage or with which Seller
carried insurance for such coverages during the last twelve (12) months. To the
Knowledge of Seller, there has been no notice of cancellation or termination of
such policies.
29
Section 2.21 Labor and Employee Relations.
(a) Seller is not a party to or has any obligations under any
collective bargaining agreements or other labor union contracts or other oral or
written understanding with any labor organization representing any employee of
Seller.
(b) No such agreements, understandings, or contracts have been
requested by any employee or group of employees of Seller, nor has there been
any discussion with respect thereto by management of Seller since January 1,
2000.
(c) Since January 1, 2000, Seller has not received any written
notification of any unfair labor practice charges or complaints pending before
any agency having jurisdiction thereof nor are there any current or threatened
union representation claims or petitions involving any of the employees of
Seller, nor to the Knowledge of Seller have any such charges, complaints, claims
or petitions been threatened.
(d) Since January 1, 2000, and to the Knowledge of Seller, there are
and have been no union organizing activities or proceedings involving, or any
pending petitions for recognition of, a labor union or association as the
exclusive bargaining agent for, or where the purpose is to organize, any group
or groups of employees of Seller. Seller has not received any notice of, nor are
there currently pending, any proceeding before the National Labor Relations
Board, wherein any labor organization is seeking representation of any employees
of Seller.
(e) As of the date hereof, there are no strikes, work stoppages, work
slowdowns, labor disputes or lockouts nor, to the Knowledge of Seller, any
threats thereof, by or with respect to any of the employees of Seller. Since
January 1, 2000, there have been no labor disputes, strikes, slowdowns, work
stoppage, lockouts or similar matters (except for routine grievance matters)
involving employees of Seller.
(f) Within the last three (3) years, Seller has not received notice of,
nor to the Knowledge of Seller are there any, pending grievances filed by
employees, or former employees of Seller within any collective bargaining unit
or by representatives of such employees within any collective bargaining unit.
Further, within the last three (3) years, Seller has not received any notice of
nor, to the Knowledge of Seller, are there any citations, investigations,
orders, fines, findings, awards, arbitration decisions, settlement agreements,
injunctions, consent decrees or conciliation agreements involving the employment
of any person by Seller.
(g) Except as set forth on the Labor and Employee Relations Schedule,
within the last three (3) years, Seller has not received any notice of, nor are
there any (i) pending or, to the Knowledge of Seller, threatened, charges of
discrimination or lawsuits involving any alleged violation of any fair
employment or equal employment opportunity law, wage payment law, occupational
safety and health law, or other employment law, (ii) pending or, to the
Knowledge of Seller, threatened, litigation arising out of any past or present
employment or independent contractor relationship, or other employment-related
law, whether federal, state or local, or (iii) pending or, to the Knowledge of
Seller, threatened, litigation arising out of any employment relationship, by
any applicant, employee or former employee, independent contractor or any heir,
beneficiary or representative of any such Person or Persons. Seller has not
received notice of any charge or claim involving any of Seller's respective
facilities, employees, or former employees that is pending with respect to equal
employment opportunity, unlawful discrimination, occupational safety or wage
payment law (other than claims arising under applicable worker's compensation
statutory or regulatory requirements which claims, individually or in the
aggregate, would not have a Material Adverse Effect), or any other form of
alleged employment practice or unfair labor practice.
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(h) Except as set forth on the Labor and Employee Relations Schedule,
Seller, and each Plan in which current or former employees of Seller
participate, comply with all applicable Laws, rules and regulations relating to
the employment of labor, and the engagement of independent contractors,
including, but without limitation, those relating to wages, hours, concerted
activity, non-discrimination, occupational health and safety, and the payment
and withholding of all amounts required by law or contract to be withheld from
the wages or salaries of their respective employees, and Seller does not have
any accrued liability for any arrears of wages or any Taxes or penalties for
failure to comply with any of the foregoing, other than for violations or
failures to comply which would not have a Material Adverse Effect.
(i) Except as set forth on Labor and Employee Relations Schedule, there
are no employment agreements or consultant agreements to which Seller is a party
or is bound which will remain in effect after the Closing. The parties agree
that WTI is not assuming, and shall have no liability under, any such
agreements.
(j) The Labor and Employee Relations Schedule sets forth the names of
each of the current employees of Seller (as of June 16, 2003), their salaries
and duration of employment. All personnel working at the Facility are employees
of Seller, except as disclosed on the Labor and Employee Relations Schedule.
(k) It is agreed and understood that WTI is not assuming and shall have
no liability under any collective bargaining agreements or other contracts or
understandings that Seller may have with any labor organization.
Section 2.22 Foster Wheeler Technology.
Seller and its Affiliates either own or have the right to license the
Foster Wheeler Technology pursuant to the Foster Wheeler Technology License.
Section 2.23 Assets Used in Seller's Business.
The Assets, the Excluded Assets and Foster Wheeler Technology
constitute materially the same assets which Seller has utilized to conduct its
business in the ordinary course, consistent with past practice.
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Section 2.24 Evergreen Interest.
The "lock box" account at Evergreen Bank, P. O. Box 318, Glens Falls,
New York 12801-0318, Savings Account No. 070088335434 was formerly used to
deposit tip fee revenues collected by Seller and hold such revenues pending
their payment over to the Trustee. Such tip fee revenues are currently collected
directly by the IDA and said account (i) is no longer actively used by Seller,
and (ii) contains approximately $21,647.73 as of May 31, 2003, representing
interest earned on past deposits. All amounts held in said account will be
released to Seller at Closing as a result of the settlement of the existing
litigation between Seller and the IDA.
Section 2.25 No Other Representations or Warranties.
Notwithstanding anything contained in this Article II or any other
provision of this Agreement to the contrary, (a) WTI acknowledges and agrees
that none of Seller, its Affiliates nor any of their respective officers,
directors, employees, agents or representatives is making any representation or
warranty whatsoever, whether express or implied (including, but not limited to,
any implied warranty or representation as to the value, condition,
merchantability or suitability as to the Facility or any of the properties or
assets of Seller) or contained, or referred to, in any materials that have been
provided to WTI or any of its Affiliates, agent or representatives (including,
without limitation, any confidential flip book submitted to WTI) beyond those
expressly given by Seller in this Agreement and (b) it is understood that except
for the representations and warranties and indemnities contained herein, the
Purchasers are acquiring the Assets (including, without limitation, Seller's
right, title and interest in the Facility Site and the Facility) "as is and
where is".
ARTICLE III
REPRESENTATIONS OF WTI
WTI represents, warrants and agrees as follows:
Section 3.1 Existence and Good Standing of WTI; Power and Authority.
WTI is a limited liability company duly organized, validly existing and
in good standing under the Laws of the State of Delaware. WTI has all requisite
limited liability company power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
by WTI of this Agreement and the consummation by WTI of the transactions
contemplated hereby have been duly authorized by all necessary limited liability
company action on the part of WTI. This Agreement has been duly executed and
delivered by WTI and constitutes the valid and binding obligation of WTI
enforceable against WTI in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar Laws affecting creditors' rights generally and
by general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law).
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Section 3.2 Consents and Approvals; No Violations.
The execution and delivery by WTI of this Agreement and the
consummation by WTI of the transactions contemplated hereby will not (a) violate
any provision of the certificate of formation or limited liability company
agreement (or other organizational document) of WTI; (b) violate any Law or
Order of a Governmental Authority applicable to WTI or any of its Affiliates or
by which any of their respective properties or assets may be bound; (c) except
for Purchaser Approvals require WTI or any of its Affiliates to make or obtain
any filing with, or permit, consent or approval of, or give any notice to, any
Governmental Authority; or (d) result in a violation or breach of, conflict
with, constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation, payment or
acceleration) under, or result in the creation of any Lien upon any of the
properties or assets of WTI or any of its Affiliates under, any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture,
license, franchise, permit, lease, collective bargaining agreement or other
agreement, instrument or obligation to which WTI or any of its Affiliates is a
party or by which WTI or any of its Affiliates or any of their respective
properties or assets is bound, other than, in the cases of (b) through (d),
violations, failures to file, breaches and defaults which would not prevent WTI
from performing its material obligations under this Agreement.
Section 3.3 Financing.
WTI has sufficient funds available to it to transfer an amount equal to
the Purchase Price and the Settlement Amount to the IDA pursuant to the Facility
Transfer Agreement.
Section 3.4 Broker's or Finder's Fees, Etc.
No agent, broker, person or firm acting on behalf of WTI is, or will
be, entitled to any commission or broker's or finder's fees from any of the
parties hereto, or from any Affiliate of any of the parties hereto, in
connection with any of the transactions contemplated by this Agreement.
Section 3.5 Litigation.
There is no action, suit, proceeding at law or in equity, arbitration
or administrative or other proceeding by or before or, to the Knowledge of WTI,
any investigation by, any Governmental Authority pending, or, to the Knowledge
of the WTI, threatened, against or affecting WTI or any of its properties or
rights which would have an adverse effect on WTI or which questions the validity
of this Agreement or any of the transactions contemplated hereby.
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Section 3.6 Facility Transfer Agreement.
The form of Facility Transfer Agreement (together with all schedules
and exhibits thereto) furnished by WTI and attached as Exhibit T hereto, is in
final form for execution thereof by the IDA and WTI subject only to the receipt
of the Purchaser Approvals.
ARTICLE IV
COVENANTS OF SELLER AND PURCHASER
Section 4.1 Access to Information Concerning Properties and Records.
During the period commencing on the date hereof and ending on the
earlier to occur of (a) the Closing Date and (b) the termination of this
Agreement pursuant to Article X, Seller (i) shall, upon reasonable notice,
afford WTI, and its counsel, accountants, consultants and other authorized
representatives, reasonable access during normal business hours to the officers,
employees, properties, books and records of Seller in order that they may have
the opportunity to make such reasonable investigations as they shall desire of
the Facility, the Facility Site and other Assets as WTI may reasonably request;
provided that activities relating to the environmental investigation shall be
subject to the terms of the Access Agreement, and (ii) shall cause its officers,
employees, counsel, accountants, consultants and other representatives to
furnish such additional financial and operating data and other information and
respond to such inquiries as WTI and its counsel, accountants, consultants and
other authorized representatives, shall from time to time reasonably request.
Any information so obtained by WTI shall be subject to that certain letter
agreement, dated April 24, 2001, by and between Wheelabrator Technologies, Inc.
and Lehman Brothers Inc. on behalf of Foster Wheeler Corporation (the
"Confidentiality Agreement").
Section 4.2 Conduct of Business.
(a) Except as required or specifically contemplated by this Agreement,
during the period from the date of this Agreement until the earlier to occur of
(a) the Closing Date and (b) the termination of this Agreement pursuant to
Article X (the "Post-Signing Period"), Seller shall conduct its operations in
accordance with past practices in the ordinary course of business, consistent
with customary industry standards, and will use its reasonable best efforts to
(i) preserve intact its business organization, (ii) maintain its material rights
and franchises, (iii) keep available the services of its officers and employees,
and (iv) maintain satisfactory relationships with suppliers, distributors,
customers, landlords, unions and others having business relationships with
Seller. Without limiting the generality of and in addition to the foregoing, and
except as otherwise required or specifically contemplated by this Agreement,
during the period from the date of this Agreement until the earlier to occur of
(a) the Closing Date and (b) the termination of this Agreement pursuant to
Article X, Seller shall not, without the prior written consent of WTI:
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(i) sell, lease (as lessor), encumber, pledge, transfer or
otherwise dispose of, any Assets individually or in the aggregate
(except for Assets used, consumed or replaced in the ordinary course of
business consistent with past practices of Seller or its Affiliates)
other than to encumber Assets with Permitted Liens;
(ii) modify, amend or voluntarily terminate prior to the
expiration date, (i) any Business Contracts or Transferable Permits in
any material respect or (ii) any of the Permits (including
Environmental Permits) in any material respect, other than (a) in the
ordinary course of business, to the extent consistent with the past
practices of Seller, (b) with cause, to the extent consistent with past
practices of such Seller, or (c) as may be required in connection with
transferring Seller's rights or obligations thereunder to pursuant to
this Agreement, provided, that, prior to any such allowable
modification, amendment or termination of Permits, Seller shall provide
at least five (5) days advance written notice to WTI and copies of
applications pertaining to such Permits;
(iii) except as otherwise provided herein, enter into any
Material Contract relating to the Assets unless the Material Contract
expires or terminates on or prior to the Closing or is terminable by
Seller (or, after the Closing, by WTI) without penalty or premium upon
no more than 30 days' notice;
(iv) sell, assign or transfer any Intellectual Property;
(v) enter into any Order that would have a Material Adverse
Effect on the operation (including operating costs or the throughput or
output) of the Facility;
(vi) knowingly enter into any agreement, commit any act or
omit to do any act, or engage in any activity or transaction or incur
any obligation (by conduct or otherwise), which (individually or in the
aggregate) would have a Material Adverse Effect;
(vii) (i) hire any new Employees prior to the Closing, other
than to fill vacancies in existing positions in the reasonable
discretion of Seller or in the ordinary course of business, (ii)
increase salaries or wages of Employees prior to the Closing other than
in the ordinary course of business and in accordance with Seller's past
practices, (iii) take any action prior to the Closing to increase
compensation and the aggregate benefits payable to Employees other than
increases for Employees in the ordinary course of business and in
accordance with Sellers' past practices, or (iv) enter into any written
employment contracts with Seller's Employees;
(viii) enter into any collective bargaining agreements or
other written or oral agreements with labor organizations representing
the Employees;
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(ix) make any material change to the levels of Inventories
customarily maintained by Seller or its Partners with respect to the
Assets, other than changes that are in the ordinary course of business
consistent with Seller's past practices; or
(x) except as otherwise provided herein, enter into any
legally binding Contract with respect to any of the foregoing.
The matters described above in paragraphs (i) - (x) of this Section
4.2(a) are referred to as "Proscribed Pre-Closing Actions"). The parties
expressly acknowledge and agree that: (x) this Section 4.2 shall not survive the
Closing, and (y) except for Seller's breach of Section 4.2 for the purposes of
preventing the Restructuring from being consummated, Seller's failure to remove
any Lien arising by or through Seller or Seller's violation of clause (i) of
this Section or Seller's failure to conduct normally scheduled maintenance of
the Facility in accordance with past practices and Seller's historical operating
philosophy, WTI shall not be entitled to damages for a breach by Seller of this
Section 4.2.
(b) If during the Post-Signing Period, Seller enters into a Business
Contract that is not Assignable, Seller shall notify WTI, and WTI may, but shall
have no obligation to, assume Seller's obligations thereunder.
(c) During the Post-Signing Period, Seller may, without prior notice to
or approval of WTI, enter into any (i) new Contracts which expire or terminate
on or prior to the Closing Date, (ii) new Contracts for the disposal of waste at
the Facility that have been approved by the IDA or are otherwise permitted under
the Service Agreement, and (iii) new Contracts that are terminable by Seller
(or, after the Closing, by WTI) without penalty or premium upon no more than 30
days' notice (and which, subject to Section 4.2(b), in cases of clauses (ii) and
(iii) shall automatically become Business Contracts which WTI must assume).
During the Post-Signing Period, Seller shall, to the extent practicable, give
WTI at least five Business Day's notice prior to the execution thereof by Seller
of all other new Material Contracts and of all amendments to existing Business
Contracts that are to be effective after the Closing. If WTI objects to the
proposed Contract or amendment (if the proposed amendment would extend the term
of an existing Business Contract) and identifies a reputable and financially
responsible supplier of the goods or services whose terms not less favorable
than those in the proposed Contract or amendment, Seller shall execute a
Contract with the alternate supplier unless it in good faith determines it is
not in Seller's best interests to do so, in which event WTI shall not be
required to assume the Contract or amendment. If WTI fails to object to Seller's
execution of the proposed Contract or amendment, or objects but fails to
identify such an alternate supplier, before the date proposed in Seller's notice
for the execution of the Contract or amendment, Seller may execute the Contract
or amendment, which shall automatically become a Business Contract which,
subject to Section 4.2(b), WTI must assume. Notwithstanding the foregoing,
Seller shall only give WTI such prior notice as is practicable of any Contract
(or amendments to existing Business Contracts) that Seller reasonably believes
it must execute in order to avoid imminent harm to persons or property or
material revenue losses or deal with other emergency situations and may execute
such Contract or amendment without taking into account any WTI objections, and
such Contract or amendment shall automatically become a Business Contract which,
subject to Section 4.2(b), WTI must assume. Nothing in this paragraph (c),
however, shall require WTI to assume any Contract that is entered into by Seller
during the Post-Signing Period in violation of Sections 4.2(a) or 4.2(b).
36
(d) Seller shall provide WTI with copies of all Business Contracts
executed during the Post-Signing Period.
Section 4.3 Commercially Reasonable Efforts.
(a) Subject to the terms and conditions contained herein (including but
not limited to Section 1.6), Seller and WTI shall cooperate and use their
respective Commercially Reasonable Efforts (i) to take, or cause to be taken,
all appropriate action, and to make, or cause to be made, all filings necessary,
proper or advisable under applicable Laws to consummate and make effective the
transactions contemplated by this Agreement and (ii) to fulfill the conditions
to consummation of the transactions contemplated hereby set forth in Articles
VII and VIII hereof.
(b) WTI shall pay any and all transfer fees and Transfer Taxes
necessary for the consummation of the transactions contemplated by this
Agreement and to fulfill the conditions to consummation of the transactions
contemplated hereby set forth in Articles VII and VIII hereof.
Section 4.4 Exclusive Dealing.
During the Post-Signing Period, Seller shall not take (and Seller shall
not authorize or permit its Affiliates, and their respective officers,
directors, employees, representatives, consultants, financial advisors,
attorneys, accountants or other agents to so take) any action, directly or
indirectly, to encourage, solicit, initiate or engage in discussions or
negotiations with, or provide any information to, any Person, other than the
Purchasers (and their Affiliates and representatives), concerning any
acquisition of the Assets or Seller or any purchase of all or any part of the
partnership, or other equity interests in, Seller or any merger, sale of
substantial assets or similar transaction involving Seller except as required by
Law.
Section 4.5 Antitrust Filings.
WTI and Seller agree that the transactions contemplated herein do not
require the consent of any Governmental Authority under any applicable antitrust
Laws.
Section 4.6 Health Plan Continuation Coverage.
The selling group as defined in the Treasury Regulation Section
54.4980B-9, Q/A-3, will be liable for any group health plan continuation
coverage that may be required pursuant to COBRA due to a qualifying event
experienced prior to or in connection with the Closing Date.
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Section 4.7 No Use of Name.
After the Closing, none of IDA or WTI or any of their Affiliates shall
have any right to use the Foster Wheeler Intellectual Property; provided,
however, that for a period of six (6) months following the Closing, Purchasers
shall be permitted to continue to use for internal purposes only and not
otherwise for public use, materials bearing such Foster Wheeler Intellectual
Property (such as employee manuals) used by Seller prior to the Closing. Without
limiting the foregoing, within thirty (30) days following the Closing Date, WTI
shall remove or cover any signs or other uses of the Foster Wheeler Intellectual
Property that are visible from outside the Facility.
Section 4.8 Savings Plans.
WTI and Seller acknowledge and agree that (i) there shall be no
transfer of assets or liabilities from any defined contribution pension plan of
Seller or any of its Affiliates to any plan or arrangement of WTI, and (ii) WTI
and its Affiliates shall have no right, title or interest in any of the assets
of the Foster Wheeler Inc. 401(k) Plan (the "Savings Plan") and shall have no
liability or responsibility respecting the Savings Plan.
Section 4.9 Pension Plan.
WTI and Seller acknowledge and agree that (i) there shall be no
transfer of assets or liabilities from any defined benefit pension plan of
Seller or any of its Affiliates to any plan or arrangement of WTI, and (ii) WTI
and its Affiliates shall have no right, title or interest in any of the assets
of the Foster Wheeler Inc. Salaried Employees Pension Plan (the "Retirement
Plan") and shall have no liability or responsibility respecting the Retirement
Plan.
Section 4.10 Post-Signing Period Disclosure Updates.
(a) General. At any time and from time to time during the Post-Signing
Period, Seller shall, as promptly as reasonably practicable after Seller becomes
aware of the occurrence thereof, give WTI written notice in reasonable detail
(which notice shall make specific reference to this Section 4.10 and include any
necessary corresponding amendments or supplements to any Schedules hereto) (the
"Disclosure Bringdown") of the occurrence or existence of, or the impending
occurrence or existence of, (i) any fact, condition or event, which causes or
constitutes a breach of any representation or warranty of Seller contained
herein as of the date of execution of this Agreement (a "Pre-Signing Event") and
(ii) any fact, condition or event (other than a Pre-Signing Event) which would
cause or constitute a breach of any representation or warranty of Seller
contained herein as of the Closing Date (a "Post-Signing Event"). If a
Pre-Signing Event or Post-Signing Event affects any representation or warranty
for which no Schedule exists, the Disclosure Bringdown may provide for an
additional Schedule for such representation or warranty and qualify the
representation or warranty by the words "except as provided in the attached
Schedule."
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Post-Signing Events which were not caused by acts or omissions of (and
were beyond the reasonable control of) Seller or its Affiliates are "Non-ARRA
Post Signing Events". All other Post-Signing Events are "ARRA Post-Signing
Events."
(b) Cure. If Seller takes curative actions that eliminate all
reasonable possibility that a Pre-Signing Event described in a Disclosure
Bringdown would give rise to any material Claim being asserted against, or being
incurred by, a Purchaser or any WTI Indemnified Party in connection therewith
and describes such curative action to WTI in writing (1) such Pre-Signing Event
shall not be treated as the nonfulfillment of the conditions set forth in
Section 7.1 but (2) the representations and warranties of Seller set forth in
this Agreement (including, but not limited to, the Schedules hereto) shall not,
except for the purposes of clause (1) above, be deemed amended and modified by
the Disclosure Bringdown with respect to such Pre-Signing Event. Seller's
curative actions may include treating such Pre-Signing Event as a Retained
Liability, the escrow of funds or posting of collateral provided that the
requirements of the first sentence of this paragraph are met. If such
Pre-Signing Event is a Contract, Seller's agreement that such Contract will not
be assigned to WTI and shall be a Retained Liability shall be deemed ipso facto
to satisfy the first sentence of this Section 4.10(b).
(c) WTI Election. If, as of the Closing Date, any one or more
Pre-signing Events or Post-Signing Events described in a Disclosure Bringdown
would cause a nonfulfillment of the conditions set forth in Section 7.1, unless
pursuant to Section 4.10(b)(1) the foregoing is not treated as the
nonfulfillment of the conditions set forth in Section 7.1, then WTI may elect,
at its option and in its sole discretion, either (x) to treat such Pre-Signing
Events and Post-Signing Events as the nonfulfillment of the conditions set forth
in Section 7.1 and terminate this Agreement or (y) to waive the conditions set
forth in Section 7.1 with respect to such Pre-Signing Events and Post-Signing
Events.
(d) Effect of Termination. The parties hereto expressly acknowledge and
agree that, subject to Section 4.10(f), if WTI elects to terminate this
Agreement due to a failure of the conditions set forth in Section 7.1, WTI shall
not be entitled to seek damages based upon breach by Seller of this Agreement
due to the Pre-Signing Events and Post-Signing Events described in a Disclosure
Bringdown.
(e) Effect of Waiver. If the Closing Date occurs, the representations
and warranties of Seller set forth in this Agreement (including, but not limited
to, the Schedules hereto) shall not be deemed amended and modified for purposes
of Section 9.2(a)(ii) by the Disclosure Bringdown for any Pre-Signing Events or
ARRA Post-Signing Events that caused a nonfulfillment of Section 7.1 but have
been waived, but, subject to paragraph (f), shall be deemed to be amended and
modified for purposes of Section 9.2(a)(ii) by the Disclosure Bringdown for all
other Pre-Signing Events and Post-Signing Events described therein including
Non-ARRA Post Signing Events that caused a nonfulfillment of Section 7.1 but
have been waived.
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(f) Exclusions. The provisions of Sections 4.10(b) through (e),
inclusive, shall not apply to (i) any Pre-Signing Event that was not disclosed
herein prior to execution of this Agreement due to fraud or for the express
purpose of breaching this Agreement (including the representations or
warranties) or knowingly delaying disclosure until after execution of this
Agreement or (ii) any Post-Signing Event that arose from Seller's fraud,
Seller's breach of Section 4.2 as described in clause (y) of the last sentence
of Section 4.2(a), Seller's breach of any other covenant herein or Seller's
breach of a representation or warranty for the express purpose of causing a
failure of the conditions precedent set forth in Article VII or VIII. The
provisions of Sections 4.10(b) through (e), inclusive shall also not apply to a
Loss Event for which Corrective Action has been completed in accordance with
Section 1.7 or the entry into a new Contract or amendment to an existing
Contract pursuant to and in compliance with Section 4.2, in which cases (x) such
Post-Signing Event shall not be treated as the non-fulfillment of the conditions
set forth in Section 7.1 and (y) the representations and warranties of Seller
set forth in this Agreement (including, but not limited to, the Schedules
hereto) shall be deemed amended and modified by the Disclosure Bringdown with
respect to such Post-Signing Event.
(g) Effect on Indemnity and Covenants. Nothing contained in Section
4.10 shall in and of itself be deemed to limit or affect any of (i) WTI's rights
to indemnification under Article IX with respect to any Pre-Signing Event or
Post-Signing Event, except to the extent that WTI's rights to indemnification
pursuant to Section 9.2(a)(ii) for the failure of any representation or warranty
made by Seller to be true and correct in all respects as of the date of this
Agreement and as of the Closing Date have been modified by the adjustments to
the underlying representations and warranties and Schedules permitted by
Sections 4.10(e) or 4.10(f) or (ii) WTI's remedies for any breach of a covenant
by Seller hereunder or its rights to terminate the Agreement for the failure of
any condition set forth in Article VII other than Section 7.1.
Section 4.11 Pre-Closing Environmental Investigations
(a) WTI has conducted pre-closing environmental investigations pursuant
to the Access Agreement (annexed hereto as Exhibit V). WTI has previously
provided to Seller results from those investigations, including a Phase I Site
Investigation Report and portions of the Attachment II Data. Pursuant to the
Second Amendment to the Access Agreement (annexed hereto as Exhibit V), WTI may,
but is not obligated to, present to NYSDEC the Attachment II Data as part of its
applications for Permit transfers, provided, however, that NYSDEC's response to
the Attachment II Data under Article 27, Title 13, of the New York Environmental
Conservation Law or otherwise requiring or requesting further investigation or
Remediation of Hazardous Materials in the soils or groundwater at the Facility
Site, including for the avoidance of doubt, any response that requires the
collection of further data, will not be grounds for WTI to delay or cancel the
Closing once all Purchaser Approvals are issued to WTI. The transfer or issuance
of all NYSDEC environmental Permits to WTI shall remain a condition precedent to
Closing pursuant to Section 7.4. For the avoidance of doubt, nothing in this
Section 4.11(a) is intended to modify the provisions of Section 7.4, including
WTI's right to condition its obligation to purchase the WTI Assets on the
delivery of all Purchaser Approvals.
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(b) If NYSDEC requests that WTI collect groundwater samples from the
Facility Site prior to Closing, WTI is authorized to collect such samples
consistent with all applicable requirements of the terms of the Second Amendment
to the Access Agreement annexed hereto as Exhibit V. At Seller's request, WTI
agrees not to volunteer to NYSDEC to collect such groundwater samples prior to
Closing. If NYSDEC requests additional samples, WTI shall notify Seller
immediately.
(c) Notwithstanding any other agreement, Seller may use information
developed pursuant to this Section 4.11 to enforce its Reserved Construction
Contract Rights.
(d) Nothing contained in this Section 4.11 is intended to or does
modify, alter, waive or satisfy any obligation assumed by Seller in Section 9.2
of this Agreement.
ARTICLE V
TAX MATTERS
Section 5.1 Tax Matters.
(a) Transfer Taxes. None of the transfer and sales taxes incurred in
connection with this Agreement and the transactions contemplated hereby
(including, without limitation, (a) sales tax; and (b) the realty transfer taxes
on conveyances of interests in real property) ("Transfer Taxes") shall be borne
by Seller. WTI shall file or cause IDA to file, to the extent required by, or
permissible under, applicable Law, all necessary Returns and other documentation
with respect to all such Transfer Taxes, and, if required by applicable Law,
Seller shall join in the execution of any such Returns and other documentation;
provided, however, that WTI shall indemnify, defend and hold harmless each of
the Seller Indemnified Parties from and against all Claims arising from or
related to such Transfer Taxes and any execution of such Returns by Seller.
Prior to the Closing Date, to the extent applicable, WTI shall provide or cause
IDA to provide to Seller appropriate certificates of Tax exemption from each
applicable taxing authority.
(b) General Cooperation. WTI and Seller shall, at the requesting
party's expense, provide the other with such information relating to the Assets
as may reasonably be requested by the other party in connection with the
preparation of any Return, any audit or other examination by any taxing
authority, or any judicial or administrative proceedings relating to liability
for Taxes, and each shall retain, and provide the requesting party with, any
records or information which may be relevant to such return, audit, examination
or proceedings. Any information obtained pursuant to this Section 5.1(b) or
pursuant to any other Section hereof providing for the sharing of information or
review of any Return or other instrument relating to Taxes shall be subject to
the Confidentiality Agreement.
ARTICLE VI
EMPLOYEES
Section 6.1 Seller's Employees.
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(a) Promptly after the execution of this Agreement, Seller and WTI
shall meet with the Employees to notify the Employees of the execution of this
Agreement, the sale of Assets, and the termination of employment of the
Employees by Seller on the Closing Date. WTI shall simultaneously notify
Seller's Employees that it shall accept applications for employment with WTI
from Employees and advise Employees of its hiring procedures.
(b) Any communications between WTI and Employees regarding any
prospective employment opportunities with WTI shall be communicated directly to
Employees and shall not in any way involve Seller. Nothing contained herein
shall require WTI to notify Seller of WTI's employment decision with respect to
any Employee or to establish the terms and conditions of employment between any
Employee and WTI. To the extent that Seller provides any records to WTI
consistent with applicable Law, the provision of such records shall not
constitute participation by Seller in WTI's hiring process. WTI shall conduct
its hiring processes and procedures in accordance with applicable Laws.
(c) Seller shall make the Employees available for interviews at the
Facility by WTI upon reasonable advance notice and WTI agrees to schedule such
interviews in a manner to avoid disruption to Seller's business. WTI shall
conduct all other pre-employment screening or testing at a location other than
the Facility and Seller shall afford Employees reasonable time away from work to
participate in such other pre-employment screening processes utilized by WTI,
provided that such testing procedures are scheduled in a manner to avoid
disruption to Seller's business operations.
(d) The Labor and Employee Relations Schedule sets forth the summary of
year-to-date earnings for each of Seller's Employees, including but not limited
to base wages, overtime and any incentive compensation paid for the period from
January 2, 2002 through December 31, 2002 and from January 1, 2003 through June
15, 2003. Seller shall not provide WTI with any other documents or records
relating to the Employees, other than those documents that Seller reasonably
believes should be provided to WTI pursuant to any Law. In no event shall the
provision of any records to WTI by Seller be construed as a determination that
WTI is a successor as defined by applicable Law.
(e) The Parties hereby acknowledge that WTI shall have sole discretion
to determine the employment terms offered to the Employees selected for
employment by WTI and shall have no obligation to hire all or any particular
number of Seller's Employees. WTI shall not, except to the extent expressly
agreed to by WTI, be responsible for any of Seller's benefits liabilities.
(f) Seller hereby represents and warrants that there have not been and
will not be any employment losses within the period 90 days prior to Closing
sufficient to trigger the terms of the Worker Adjustment and Retraining Act, 20
C.F.R. 639.1 et seq.
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ARTICLE VII
CONDITIONS TO OBLIGATIONS OF WTI
The obligations of WTI hereunder to purchase the WTI Assets and to
assume and pay, perform and discharge the WTI Assumed Liabilities are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by WTI in its sole
discretion):
Section 7.1 Truth of Representations and Warranties.
The representations and warranties of Seller contained in this
Agreement (taking into account any curative actions under Section 4.10(b) that
result in a Pre-Signing Event not being treated as the non-fulfillment of the
conditions set forth in this Section 7.1) shall (i) in the case of those
representations and warranties that are qualified by "material", "materially" or
"Material Adverse Effect" be true and correct and (ii) in the case of all other
representations and warranties, be true and correct in all material respects, in
each case on and as of the Closing Date, with the same effect as though such
representations and warranties had been made on and as of the Closing Date, and
Seller shall have delivered to WTI a certificate, dated the Closing Date and
signed by an executive officer of Seller's General Partner, to such effect.
Section 7.2 Performance of Agreements.
All of the agreements, obligations, covenants and conditions of Seller
to be performed or complied with prior to the Closing pursuant to the terms of
this Agreement shall have been duly performed or complied with on or before the
Closing Date except for any failure or failures which alone or in the aggregate
do not have, and are not likely to cause, a Material Adverse Effect, and Seller
shall have delivered to WTI a certificate, dated the Closing Date and signed by
an executive officer of Seller, to such effect (which may be incorporated into
the certificate delivered in satisfaction of Section 7.10).
Section 7.3 IDA Performance.
(a) The IDA shall have delivered (i) to Seller all of the IDA-ARRA
Deliverables duly executed by the parties thereto (other than Seller and its
Affiliates) and (ii) to WTI all of the IDA-WTI Deliverables duly executed by the
parties thereto other than WTI and its Affiliates and performed all of its
obligations under the Facility Transfer Agreement.
(b) Each of the IDA-ARRA Deliverables and the IDA-WTI Deliverables
shall be in full force and effect.
(c) All of the conditions precedent to WTI's performance of its
obligations (including its obligation to pay the IDA an amount equal to $350,000
plus the Settlement Amount) under the Facility Transfer Agreement shall have
been satisfied in full or waived.
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Section 7.4 Approvals and Consents.
All Purchaser Approvals shall have been delivered to Purchasers and
each Purchaser Approval shall be in full force and effect and shall be subject
to no conditions which have not been satisfied. WTI shall file all necessary
Permit applications within thirty (30) Business Days of the execution of this
Agreement and shall diligently pursue the acquisition of any Permits for which
such applications are submitted. This condition shall not be deemed satisfied if
a Purchaser Approval that constitutes a Permit shall impose conditions regarding
the operation of the Facility that are materially more stringent than those
existing on the date of this Agreement, provided, however, that this condition
shall be deemed satisfied if materially more stringent Permit conditions relate
to the Attachment II Data, as those data are relevant to Article 27, Title 13 of
the New York Environmental Conservation Law or otherwise are the basis for the
NYSDEC requiring or requesting further investigation or remediation of Hazardous
Materials in the soils or groundwater at the Facility Site.
Section 7.5 Transfer Agreements.
Each Purchaser shall have received the Transfer Agreements to which it
is a Party duly executed by Seller and IDA shall have received each other
ARRA-IDA Deliverable duly executed by Seller and its applicable Affiliates.
Section 7.6 Bond Counsel Opinion and Trustee Consent.
WTI shall have received an executed Bond Counsel Opinion, Trustee
Consent and Bondholder Consent and (a) written confirmation dated as of the
Closing Date, (i) from Bond Counsel affirming the continued validity of the Bond
Counsel Opinion and the Bondholder Consent and WTI's continued reliance thereon
and (ii) from the Trustee affirming the continued validity and effectiveness of
the Trustee Consent and (b) from the IDA a certified copy of the Bondholder
Consent, all in form and substance satisfactory to WTI.
Section 7.7 Opinion of Seller's Counsel.
The Purchasers shall have received an opinion of Wolff & Samson, in the
form set forth as Exhibit G dated as of the Closing Date.
Section 7.8 [RESERVED].
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Section 7.9 Opinion of Foster Wheeler's Counsel.
WTI shall have received an opinion of in-house counsel to Foster
Wheeler Inc., dated as of the Closing Date, relating to Foster Wheeler LLC,
Foster Wheeler Power Group, Inc., Foster Wheeler Inc., the Seller APA Guarantee
and the Foster Wheeler Technology License, in the form set forth as Exhibit J.
Section 7.10 Closing Certificate.
Seller shall have delivered to WTI a certificate, dated the Closing
Date and signed by an executive officer of Seller's General Partner, certifying
to the fulfillment or waiver by Seller of the conditions specified in Article
VIII substantially in the form set forth as Exhibit M and an incumbency
certificate, dated the Closing Date and executed by the Secretary or Assistant
Secretary of Seller's General Partner, substantially in the form set forth as
Exhibit N.
Section 7.11 Foster Wheeler Technology License.
Seller shall have delivered to WTI the license agreement between Foster
Wheeler Inc. and WTI with respect to the Foster Wheeler Technology in the form
of Exhibit W (the "Foster Wheeler Technology License"), executed by an officer
of Foster Wheeler Inc.
Section 7.12 Account Balances.
WTI shall have received a statement from the Trustee setting forth the
amounts (as of the Closing Date) contained in all accounts established under the
Bond Indenture.
Section 7.13 Reserved.
Section 7.14 No Bond Indenture Defaults.
No Event of Default (or event that with the passing of time or the
giving of notice would constitute an Event of Default) under the Bond Indenture
shall have occurred and be continuing as of the Closing Date except any such
Event of Default or event that will be cured or waived in connection with the
Closing.
Section 7.15 NIMO Notification.
Niagara Mohawk Power Corporation shall have received written
notification from Seller and IDA of the assignment of the PPA to WTI in the form
set forth in Exhibit K. WTI shall have received a true and complete copy thereof
certified by Seller.
Section 7.16 Title Insurance; Zoning.
(a) The title insurance policy for the Purchase Option Agreement for
the Real Property received by WTI as of the Closing Date does not contain
exceptions for any matters not disclosed in the title commitment, as amended
through the date hereof, issued by Title Associates Inc. as agent for Chicago
Title Insurance Company prior to the execution of this Agreement unless such
excepted items are Permitted Liens.
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(b) During the Post-Signing Period, no law, ordinance or regulation
shall have been enacted, promulgated or introduced before any Governmental
Authority that would cause the Facility Site or the easement to be granted
pursuant to the Facility Access Easement to be subject to a zoning
classification or classifications, rule or regulation, or a variance or special
exception, which, individually or in the aggregate, would not permit the
Facility, the Facility Site or the easement to be granted pursuant to the
Facility Access Easement or any portion thereof to be used in all material
respects as it is currently used for waste disposal purposes even if the IDA
leased or transferred ownership of the Facility to a privately owned entity.
Section 7.17 Orders and Laws.
There shall not be in effect on the Closing Date any Order or Law
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement, the
Facility Transfer Agreement or any of the other Transfer Agreements.
Section 7.18 Loss Event.
There shall not be an uncompleted Corrective Plan for a Loss Event.
Section 7.19 Counterparty Approvals of Key Business Contracts.
WTI shall have received a consent from the applicable counterparty to
the assignment of the Contracts listed on the Key Business Contract Schedule
(the "Key Business Contracts"), if such consent is required by the terms of the
Key Business Contract for its effective assignment.
Section 7.20 Stormwater Pond.
Seller shall have removed all accumulated sediment from the stormwater
pond at the Facility Site and disposed of such sediment off site in accordance
with all applicable Laws, and shall have delivered to WTI documentation
reasonable acceptable to WTI evidencing such removal and disposal. Such
documentation shall include (i) analytical data statistically appropriate to a
characterization for disposal of such sediment under applicable Environmental
Laws, and (ii) all available documentation demonstrating the transportation and
off site disposal of such sediment.
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ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller hereunder to sell the Assets are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by Seller in its sole
discretion):
Section 8.1 Truth of Representations and Warranties.
The representations and warranties of WTI contained in this Agreement
shall be true and correct in all material respects on and as of the Closing
Date, with the same effect as though such representations and warranties had
been made on and as of the Closing Date, and WTI shall have delivered to Seller
a certificate, dated the Closing Date and signed by an executive officer of WTI
(or by a similar authorized representative of the WTI), to such effect.
Section 8.2 Performance of Agreements.
All of the agreements, obligations, covenants and conditions of WTI to
be performed or complied with prior to the Closing pursuant to the terms of this
Agreement shall have been duly performed or complied with in all material
respects on or before the Closing Date except for any failure or failures which
alone or in the aggregate do not have, and are not likely to cause, a Material
Adverse Effect, and WTI shall have delivered to Seller a certificate, dated the
Closing Date and signed by an executive officer of WTI, to such effect (which
may be incorporated in the certificate delivered in satisfaction of Section
8.8).
Section 8.3 IDA - Seller Deliverables.
The IDA shall have delivered to Seller all IDA-ARRA Deliverables duly
executed by the parties thereto (other than Seller and its Affiliates) and each
of the IDA-ARRA Deliverables shall be in full force and effect.
Section 8.4 Approvals and Consents.
All (i) Purchaser Approvals (including, but not limited to, certified
copies of resolutions or other official action duly adopted or taken by each of
the IDA, Washington County and Warren County authorizing the Restructuring, the
Facility Transfer Agreement and the execution and delivery by an authorized
officer thereof of each of the agreements and instruments contemplated thereby)
shall have been received and (ii) other consents, waivers, assignments,
transfers and approvals set forth on Approvals Schedule shall have been
received.
Section 8.5 Purchase Price.
The Purchase Price has been paid to Seller in accordance with this
Agreement.
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Section 8.6 Bond Counsel Opinion and Trustee Consent.
Seller shall have received an executed Bond Counsel Opinion, Trustee
Consent and Bondholder Consent and (a) written confirmation dated as of the
Closing Date, (i) from Bond Counsel affirming the continued validity of the Bond
Counsel Opinion and WTI's continued reliance thereon and confirming that the
Bondholder Consent has not been withdrawn, (ii) from the Trustee, affirming the
continued validity and effectiveness of the Trustee Consent, all in form and
substance satisfactory to Seller and (b) from the IDA a certified copy of the
Bondholder Consent all in form and substance satisfactory to Seller.
Section 8.7 Opinion of Counsels to the Purchasers and Counties.
Seller shall have received the opinions, dated as of the Closing Date,
of (i) Michael O'Friel, counsel to WTI, in the form set forth as Exhibit L-1,
(ii) Hogan & Hartson L.L.P., in the form set forth as Exhibit L-2, (iii)
FitzGerald Morris Baker Firth, P.C., counsel to the IDA, in the form set forth
as Exhibit Z, (iv) the County Attorney to Washington County, in the form set
forth as Exhibit AA, and (v) the County Attorney to Warren County, in the form
set forth as Exhibit BB.
Section 8.8 Closing Certificate.
WTI shall have delivered to Seller a certificate, dated the Closing
Date and signed by an executive officer or similar authorized representative of
WTI, certifying to the fulfillment or waiver by WTI of the conditions specified
in Article VII substantially in the form set forth as Exhibit O, and an
incumbency certificate, dated the Closing Date and executed by the Secretary or
Assistant Secretary or similar authorized representative of WTI substantially in
the form set forth as Exhibit P.
Section 8.9 Orders and Laws.
There shall not be in effect on the Closing Date any Order or Law
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement, the
Facility Transfer Agreement or any of the other Transfer Agreements.
Section 8.10 Facility Transfer Agreement.
The Facility Transfer Agreement shall have been executed and delivered
by WTI and the IDA in the form set forth as Exhibit T and shall be in full force
and effect.
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ARTICLE IX
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 9.1 Survival of Representations; Covenants.
The representations and warranties set forth in Sections 2.1, 2.2, 2.3,
2.6(a), 2.7(a), 2.9 (with respect to Transferable Permits only), 2.13 and 2.16
of this Agreement shall survive until the expiration of the applicable statute
of limitations with respect to the matters represented and warranted therein (or
indefinitely if there is no such statute). The representations and warranties
set forth in Section 2.11 (the "Tax Representations") of this Agreement shall
survive until the expiration of the applicable statute of limitations with
respect to the matters represented and warranted therein (including extensions),
plus an additional six-month period. The representations and warranties set
forth in Section 2.14 (Environmental Laws and Regulations) (the "Environmental
Representations"), shall survive until the earlier of (i) five years from the
Closing Date or (ii) the expiration of the applicable statute of limitations
with respect to such matters represented and warranted (or five years, if there
is no statute); provided, however, that such limitation shall not be applicable
to any Releases, whether occurring on-site or off-site. All Environmental
Representations addressing Releases shall survive until the expiration of the
longest applicable statute of limitations with respect to such matters, or
indefinitely if there is no such statute. All other representations and
warranties set forth in this Agreement shall survive a period of eighteen (18)
months from the Closing Date. The covenants and agreements of each of Seller and
WTI contained in this Agreement shall survive the Closing in accordance with
their respective terms. The representations and warranties set forth in Sections
2.1, 2.2, 2.3, 2.6(a) and 2.7(a) are the "Title and Partnership Authority
Representations".
Section 9.2 Indemnification.
(a) Seller Indemnity. Seller agrees to indemnify, defend and hold
harmless WTI, its Affiliates, and their respective officers, directors,
managers, employees, representatives and agents (each, a "Purchaser Indemnitee"
and, collectively, the "Purchaser Indemnitees") from and against and in respect
of all Claims (including Seller Environmental Claims) whether or not arising out
of third party Claims asserted against, resulting to, imposed upon or incurred
by a Purchaser Indemnitee directly or indirectly as a result of or in connection
with (i) any breach or non-compliance by Seller of any of its covenants or
agreements contained in this Agreement; (ii) the failure of any representation
or warranty made by Seller in this Agreement to be true, correct and complete in
all respects as of the date of this Agreement and as of the Closing Date; (iii)
the presence of Hazardous Materials, or the Release or other condition,
circumstance, action or omission relating to Hazardous Materials or violation of
Environmental Law at, from or with respect to property currently or previously
leased by Seller, the Facility or the Parcel, or to the Parcel or any locations
where Hazardous Materials originating from property currently or previously
leased by Seller, the Facility or the Parcel, or the business of Seller, have
been sent or come to be located, existing, initiated or occurring prior to the
Closing, and related to the business of Seller (including, without limitation,
the actions or omissions of Seller or its Affiliates), or otherwise, but
excluding any Pre-Seller Environmental Claim; (iv) the termination of a Defined
Benefit Plan to which Seller or a Common Control Entity was a contributing
sponsor at the time of termination; (v) any Retained Liabilities whether or not
disclosed on any Schedules to this Agreement; (vi) any Excluded Assets except to
the extent arising from events or conditions for which Seller is indemnified
pursuant to Section 9.2(c) or (vii) any Business Contract assumed by WTI that
contains an Anti-Assignment Clause but which was not identified in the Approvals
Schedule as having an Anti-Assignment Clause.
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(b) Environmental Indemnification Procedure. The parties agree that the
foregoing provision in Section 9.2(a)(iii) is intended, without limitation, to
place upon Seller the sole liability and responsibility for any Seller
Environmental Claims. The parties further agree that if, after the Closing Date,
a Party (the "Responsible Party") (i) takes any action or (ii) fails to take any
action that is required under Environmental Law after it has knowledge of an
environmental condition, which action or failure to take action has the effect
of increasing the amount for which the other Party (the "Impacted Party") may be
required to indemnify under this Agreement as a result of the violation of
Environmental Law by the Responsible Party prior to the Closing Date, the
Impacted Party retains all rights to contribution for the incremental costs
arising from such actions or failures to take action by the Responsible Party,
which contribution rights the Impacted Party would have, absent this Article IX,
under 42 U.S.C. ss. 9613 and similar state Environmental Laws; provided,
however, that each Party specifically waives all such contribution claims to the
extent that it has assumed responsibility for such required actions under this
Agreement, and the other Party provides such Party with timely notice of its
obligation to take such actions. For the purposes of this Section 9.2(b), the
knowledge of the employees of Seller that are hired by WTI with respect to an
environmental condition in existence prior to Closing shall not be imputed to
WTI after the Closing, unless such conditions have been disclosed herein prior
to Closing.
(c) WTI Indemnity. Without limiting the obligations of WTI under
Section 5.1(a), WTI agrees to indemnify, defend and hold harmless Seller, its
Affiliates and their respective officers, directors, employees, representatives
and agents (each, a "Seller Indemnitee" and, collectively, the "Seller
Indemnitees") from any Claims suffered, incurred or paid as a result of (i) any
breach by WTI of any of its covenants or agreements contained in this Agreement;
(ii) the failure of any representation or warranty made by WTI in this Agreement
to be true and correct in all respects as of the date of this Agreement and as
of the Closing Date; (iii) the Release of any Hazardous Materials first
initiated or occurring after the Closing and related to the business of
operation of the Facility by WTI under the Service Agreement; provided, however,
that WTI shall not be required to indemnify any Seller Indemnitee for any Seller
Environmental Claim or Pre-Seller Environmental Claim; (iv) any WTI Assumed
Liability; provided that WTI shall not be liable for any IDA Assumed Liability
or for assumption of a Business Contract described in Section 9.2(a)(vii); (v)
any failure to have obtained the consent to assignment from a counterparty to
any Business Contract other than a Business Contract that contains an
Anti-Assignment Clause but was not identified in the Approvals Schedule as
having an Anti-Assignment Clause; (vi) any claims for indemnification by the IDA
against Seller under this Agreement that are not made through WTI on behalf of
IDA in accordance with Section 9.2(g) hereof; (vii) any claims arising from
WTI's use of the Northern Parcels after the Closing Date; or (viii) actions or
omissions of WTI or its Affiliates directly relating to the business conducted
at the Facility occurring after the Closing, except in respect of this clause
(viii), (x) to the extent arising from events or conditions for which WTI is
indemnified pursuant to Section 9.2(a), 9.2(b) or 9.2(d) and (y) Seller
Environmental Claims, Pre-Seller Environmental Claims, IDA Assumed Liabilities,
Retained Liabilities or Excluded Assets.
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(d) Seller Tax Indemnity. Seller agrees to indemnify, defend and hold
harmless the Purchaser Indemnitees against all Taxes of Seller and its partners
and Affiliates and any other Taxes imposed on or asserted against the Assets
(other than Transfer Taxes) until six months after the expiration of the
applicable statute of limitations, including extensions, for all Pre-Closing
Periods, to the extent that such Taxes relate to periods prior to the Closing
Date. The Purchaser Indemnitees shall promptly give the Seller written notice of
all Taxes which the Purchaser Indemnitees have reasonably determined may give
rise to a right of indemnification under this Section 9.2(d), including a
computation of the amount of the claimed indemnification with sufficient detail
and particularly to enable the Seller to reasonably determine the amount of such
required indemnification.
(e) Pre-Seller Environmental Claims. Seller and WTI acknowledge that
the IDA has indemnified Seller for certain environmental conditions existing at
the Parcel prior to the Seller's use and/or occupancy thereof pursuant to the
Reserved Construction Contract Rights and that Seller will assign such indemnity
to WTI. Neither WTI, Seller nor any Indemnified Party shall have any recourse
against a party hereto with respect to any Pre-Seller Environmental Claims.
(f) Time Periods. The obligations to indemnify, defend and hold
harmless shall survive the consummation of the transactions contemplated hereby
for the following periods:
(i) the obligations set forth in Section 9.2(a)(i) and (ii)
and Section 9.2(c)(i) and (ii) shall survive for the relevant periods
set forth in Section 9.1;
(ii) the obligations set forth in Section 9.2(a)(iii) shall
survive until the earlier of (i) five years from the Closing Date or
(ii) the expiration of the applicable statute of limitations with
respect to such matters (or indefinitely, if there is no statute);
provided, however, that such limitation shall not be applicable to any
Releases, whether occurring on-site or off-site. The obligations set
forth in Section 9.2(a)(iii) related to Releases shall survive until
the expiration of the longest applicable statute of limitations with
respect to such matters, or indefinitely, if there is no such statute;
(iii) the obligations set forth in Section 9.2(a)(iv) through
(vii) inclusive shall survive until the expiration of the applicable
statute of limitations with respect to such matters (or indefinitely if
there is no such statute);
(iv) the obligations set forth in Section 9.2(c)(iii) through
(vii) inclusive shall survive until expiration of the applicable
statute of limitations with respect to such matters (or indefinitely if
there is no such statute); and
(v) the obligations set forth in Section 9.2(d) shall survive
until six months after the expiration of the applicable statute of
limitations, including extensions.
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Notwithstanding the immediately foregoing sentence, claims for
indemnification asserted prior to the end of the periods described in the
immediately foregoing sentence shall survive until final resolution thereof.
(g) IDA Claims. As provided in the Facility Transfer Agreement, WTI
shall have the sole and exclusive right to enforce any claims for
indemnification relating to the IDA Assets against Seller under this Agreement,
and Seller shall not be liable to the IDA unless any such claim is prosecuted
through WTI. Notwithstanding any other provision of this Agreement, WTI shall be
entitled to recover under Section 9.2 for Claims suffered by the IDA as though
the IDA were a Purchaser Indemnitee even though WTI did not directly incur the
Claims suffered by the IDA and the IDA is not listed as a Purchaser Indemnitee.
The foregoing shall not be deemed an admission by the Seller that the IDA now
has or may ever have or assert any Claims against Seller under the Facility
Transfer Agreement or otherwise.
Section 9.3 Third Party Claims.
(a) In the event that any Claim by a third party against any Person
entitled to indemnification pursuant to Sections 9.2(a), 9.2(c) or 9.2(d) (an
"Indemnified Party"), and in respect of which such Indemnified Party intends to
seek indemnity under this Article IX, such Indemnified Party shall promptly
notify the party obligated to indemnify such Indemnified Party (the
"Indemnifying Party") of such Claim; provided, however, that the failure to so
notify shall not relieve the Indemnifying Party of its obligations hereunder,
except to the extent that the Indemnifying Party is actually and materially
prejudiced thereby.
(b) The Indemnifying Party shall have 30 days after receipt of such
notice to assume the conduct and control, through counsel reasonably acceptable
to the Indemnified Party at the expense of the Indemnifying Party, of the
settlement or defense thereof, and the Indemnified Party shall cooperate with it
in connection therewith; provided, however, that (i) the Indemnifying Party
shall permit the Indemnified Party to participate in such settlement or defense
through counsel chosen by such Indemnified Party, provided, however, that the
fees and expenses of such counsel shall be borne by such Indemnified Party and
(ii) the Indemnifying Party shall promptly assume and hold such Indemnified
Party harmless from and against the full amount of the Claim and the
Indemnifying Party shall waive in writing its right to dispute the Indemnified
Party's right to indemnification for such Claim or any subsequent Claims with
respect to such Claim. So long as the Indemnifying Party is reasonably
contesting any such Claim in good faith, the Indemnified Party shall not pay or
settle any such Claim. Notwithstanding the foregoing, the Indemnified Party
shall have the right to pay or settle any such claim, provided, however, in such
event it shall waive any right to indemnity therefor by the Indemnifying Party
for such Claim unless the Indemnifying Party shall have consented to such
payment or settlement. If the Indemnifying Party does not notify the Indemnified
Party within 30 days after receipt of the Indemnified Party's notice of a Claim
of indemnity hereunder that it elects to undertake the defense thereof, the
Indemnified Party shall have the right to contest, settle or compromise such
Claim but shall not thereby waive any right to indemnity therefor pursuant to
this Agreement. The Indemnifying Party shall not, except with the consent of the
Indemnified Party, enter into any settlement or consent to entry of any judgment
that (A) does not include as an unconditional term thereof the giving by the
Person or Persons asserting such Claim to all Indemnified Parties of an
unconditional release from all liability with respect to such Claim and (B)
includes a statement as to an admission of fault, culpability or failure to act
by or on behalf of an Indemnified Party; provided, however, that for settlements
with Governmental Authorities, the consent of the Indemnified Party shall not be
unreasonably withheld or delayed and in making such determination, the
Indemnified Party shall exercise its reasonable business judgment (without
taking into account the indemnity afforded hereby) consistent with usual and
customary settlement terms, conditions and practices for the applicable
Governmental Authority.
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Section 9.4 Remediation Activities.
(a) Any Remediation or portion thereof for which a Purchaser Indemnitee
seeks indemnification under Section 9.2 shall be conducted so as to meet the
Commercial Reasonableness Standard.
(b) Subject to any limitations in the Reserved Construction Contract
Rights, any Remediation shall be performed under the direction and control of
WTI unless WTI elects to direct Seller to conduct such Remediation by providing
Seller with written notice of its Remediation obligation.
(c) If WTI intends to conduct any Remediation, it shall provide Seller
with prior written notice containing, to the extent known, a description of the
proposed Remediation, the projected costs thereof, any relevant deadlines for
commencing the Remediation imposed by Law or a Governmental Authority and the
Persons to be engaged to perform the Remediation (the "Remediation
Information"). Seller may object to the proposed Remediation to the extent (1)
the proposed Remediation exceeds the Commercial Reasonableness Standard, (2) the
costs of all or part of the proposed Remediation are unreasonably high or (3)
the contractor is not qualified to perform all or part of the work. If Seller
objects to any portion of the proposed Remediation on such grounds, it shall
notify WTI of its objections and the reasons therefor within thirty (30)
calendar days after receipt of the Remediation Information; provided, such
deadline shall be shortened to conform with any earlier deadline established by
a Governmental Authority which is disclosed in the Remediation Information.
Seller's failure to object by that date constitutes approval of the Remediation
as described in the Remediation Information. If, in the course of performing any
Remediation, any information included in the Remediation Information changes in
any material way (e.g., a material increase in projected Remediation costs or
change in contractors), WTI shall promptly supplement the Remediation
Information in writing ("Supplemental Remediation Information"), and Seller
shall have thirty (30) calendar days from its receipt of such information to
raise any objections to the information contained therein; provided, such
deadline shall be shortened to conform with any earlier deadline established by
a Governmental Authority which is disclosed in the Supplemental Remediation
Information. Any such objections shall be limited to the same grounds (1-3) as
above and also shall be limited only to the Supplemental Remediation
Information. Seller and WTI agree that any dispute arising from Seller's
objections to any Remediation Information shall be subject to the resolution
procedure set forth in Section 9.4(h). Notwithstanding Seller's objections to
the Remediation Information, WTI may conduct the Remediation as it sees fit but
shall not be entitled to recover costs to which Seller has objected unless the
matter is resolved in WTI's favor in accordance with Section 9.4(h) below. WTI
shall submit periodic invoices to Seller for Remediation work completed and
shall be reimbursed by Seller for any costs of Remediation incurred within the
overall cost budget for the Remediation within thirty (30) days after submission
of each invoice therefor accompanied by reasonable documentation substantiating
the completed work.
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(d) If WTI elects to direct Seller to perform the Remediation pursuant
to Section 9.4(b) above, Seller shall furnish WTI with the Remediation
Information within thirty (30) calendar days of receipt of such direction or
such shorter time as may be necessary to conform with an earlier deadline
established by a Governmental Authority. WTI may object to the Remediation
proposed by Seller if (1) the Remediation does not meet the Commercial
Reasonableness Standard or (2) the contractor is not qualified to perform the
Remediation work for which it is proposed to be hired. If WTI objects to any
portion of the proposed Remediation on such grounds, it shall notify Seller of
its objections and the reasons therefor within thirty (30) calendar days after
receipt of the notice; provided, such deadline shall be shortened to conform
with any earlier deadline established by a Governmental Authority which is
disclosed in the Remediation Information. If WTI fails to object, Seller may
proceed with the Remediation in accordance with the Remediation Information.
WTI's acceptance of the identity of the contractor(s) to perform the Remediation
shall not alter, waive or relieve Seller's obligation to have the Remediation
performed under this Section 9.4 or impose any liability on WTI. If in the
course of performing any Remediation, any information included in the
Remediation Information changes in any material way (e.g., a material increase
in projected Remediation costs or change in contractors), Seller shall promptly
supplement the Remediation Information in writing and the Purchaser shall have
thirty (30) calendar days from its receipt of such Supplemental Remediation
Information to raise any objections to the information contained therein;
provided, such deadline shall be shortened to conform with any earlier deadline
established by a Governmental Authority which is disclosed in the Supplemental
Remediation Information. Any such objections shall be limited to the same
grounds (1-2) as above and also shall be limited only to the Supplemental
Remediation Information. Any dispute shall be subject to the resolution
procedure set forth in Section 9.4(h).
(e) If WTI conducts the Remediation, it shall (i) use Commercially
Reasonable Efforts to minimize costs of the Remediation; (ii) conduct the
Remediation in accordance with the Commercial Reasonableness Standard; and (iii)
allow Seller or its agent reasonable access to the property for the sole purpose
of monitoring the Remediation, so long as Seller or its agent does not interfere
with the Remediation or WTI's operations. The parties agree that WTI may conduct
the Remediation in excess of the Commercial Reasonableness Standard, but WTI
shall not be entitled to reimbursement from Seller for any incremental costs
associated with WTI's efforts which exceed the Commercial Reasonableness
Standard.
(f) If Seller performs the Remediation, Seller shall (i) promptly
commence and diligently pursue completion of the Remediation; (ii) indemnify WTI
from any damages, losses or claims arising out of Seller's performance of the
Remediation; and (iv) use Commercially Reasonable Efforts to minimize disruption
to WTI's business operations arising from the Remediation. Seller shall not
conduct, propose to any Governmental Authority, or retain any contractor to
conduct, any Remediation which could materially impact WTI's or the Facility's
current or future operations, without WTI's written consent, which consent shall
not be unreasonably withheld, delayed, or conditioned.
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(g) A party conducting the Remediation shall (i) except in an
emergency, provide reasonable advance notice to the other party of the
Remediation prior to undertaking it; (ii) keep the other party reasonably
informed of the progress of any such Remediation and the schedule for completing
such Remediation; (iii) within 5 Business Days of receipt, submit to the other
party copies of all written communications, filings, reports, correspondence or
other writings, photographs or materials received from any person, entity or
governmental agency in connection with any such Remediation; (iv) provide the
other party with a reasonable opportunity to comment in advance upon any written
communications, filings, reports, correspondence or other writings given to any
governmental agency in connection with such Remediation and will consider timely
provided comments in good faith; (v) perform the Remediation in accordance with
applicable Environmental Law and applicable Law; and (vi) to the extent
possible, provide the other party with a reasonable opportunity to participate
in any meetings with any Governmental Authority regarding the Remediation;
provided, however, that the failure to provide such notice, information or
opportunity to comment or participate shall not relieve the other Party of its
obligation hereunder, except to the extent such other Party is actually and
materially prejudiced thereby. Regardless of which party conducts the
Remediation, Seller shall be responsible for executing any manifests for the
off-site disposal of Hazardous Materials which were placed on the Parcel during
Seller's use and/or occupancy thereof and generated during the course of such
Remediation to the extent authorized by Law.
(h) To the extent either party objects to the Remediation Information
it receives from the other party, WTI and Seller will attempt to resolve the
disputed aspects of the Remediation Information within thirty (30) Business Days
of a party's receipt of the other party's objection (or sooner if an earlier
deadline has been imposed by a Governmental Authority regarding the Remediation
at issue). Any dispute that cannot be so resolved shall be submitted for binding
resolution on a timely basis to an environmental consultant or commercial
arbitrator with demonstrated environmental remediation expertise jointly chosen
and retained by the parties, with costs split equally between WTI and Seller;
provided, however, the environmental consultant/arbitrator so chosen shall
neither (i) have previously performed services for Seller, either WTI or any of
their respective Affiliates, unless such services are disclosed to the other
party and the other party raises no objection, nor (ii) be eligible to perform
any services with respect to the Remediation at issue (other than in the context
of resolving the related dispute pursuant to this Section 9.4(h)). If either
party prevails with respect to every position which it asserts to the
environmental consultant/arbitrator in a dispute resolution procedure, it shall
be entitled to payment of all of its costs arising from the dispute resolution
by the other party, which costs shall include, but not be limited to,
consultants' and attorneys' fees and the fees of the environmental
consultant/arbitrator.
(i) Notwithstanding the foregoing, Seller shall have the right to
contest whether the Remediation is subject to the indemnification provisions set
forth in Section 9.2, which dispute shall be resolved in accordance with Section
11.12; provided that Seller notifies WTI of its contesting of the Remediation
and the reasons therefor within ninety (90) days after Seller's receipt or
delivery of the Remediation Information.
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Section 9.5 Exclusive Remedy.
With the exception of any Claims based on fraud, Seller and WTI agree
that the provisions contained in this Article IX, Exhibit V and the
indemnification provisions contained in Section 5.1(a) shall, after the Closing,
be the exclusive remedy (a) for any breach of the covenants, agreements,
representations and warranties set forth in this Agreement; and (b) with respect
to Seller Environmental Claims. WTI and Seller expressly waive any claims
against each other and release each other from any liability they may have to
each other pursuant to Environmental Laws related to the Facility and the Assets
except for those provided under this Agreement.
Section 9.6 Liability Limitation.
(a) Claims Threshold. A party shall not have any obligations under
Sections 9.2(a)(i), 9.2(a)(ii), 9.2(c)(i) or 9.2(c)(ii), as the case may be, for
indemnification for any Claim arising from a breach by such party of a covenant
or agreement contained in this Agreement or representation and warranties which
covenants, agreement, representation or warranty (as the case may be) are not
qualified by the word "material," "materially" or "Material Adverse Effect"
until the aggregate amount of all such Claims exceeds $60,000, but
indemnification with respect to such party's breaches of other representations
and warranties or other covenants or agreements is not subject to such limit.
(b) Maximum Liability For Certain Claims. With respect to any Claims
which relate to or are caused by any breach by Seller of its representations and
warranties (x) in Sections 2.6(b) and 2.7(b), Seller's aggregate obligation to
indemnify the Purchaser Indemnitees for such Claims pursuant to Section 9.2
shall not exceed the sum of $1,750,000 less the amount by which amounts paid by
Seller in respect of Claims subject to the cap provided for in clause (y) exceed
$2,000,000 and (y) in all other Sections of this Agreement except for
Environmental Representations, Tax Representations or Title and Partnership
Authority Representations, Seller's aggregate obligation to indemnify the
Purchaser Indemnitees for such Claims pursuant to Section 9.2 shall not exceed
the sum of $3,750,000 less the amount paid by Seller for breaches of the
representations and warranties in Section 2.6(b) and 2.7(b). With respect to any
Claims which relate to or are caused by any breach by WTI of its representations
and warranties in Sections 3.4, 3.5 and 3.6, WTI's aggregate obligation to
indemnify the Seller Indemnitees for such claims pursuant to Section 9.2 shall
not exceed the sum of $3,750,000. The limitation calculated pursuant to this
Section 9.6(b) for Seller's or WTI's indemnification obligation relating to a
specific Claim shall be calculated as of the date on which the Indemnifying
Party must make payment with respect to such Claim to a Purchaser Indemnitee or
a Seller Indemnitee, as applicable.
(c) Unlimited Liability for Claims. With respect to any Claims (other
than those limited by Section 9.6(b) and except for the limitations set forth in
Section 9.2(e)), for which Seller is obligated to indemnify the Purchaser
Indemnitees or WTI is obligated to indemnify the Seller Indemnitees, such
indemnity is not limited.
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(d) Insurance. All indemnity obligations shall be reduced and offset by
any insurance proceeds received by any Seller Indemnitee or Purchaser Indemnitee
relating to such amount to be indemnified. Each of WTI and Seller agrees to use
its Commercially Reasonable Efforts to pursue recovery for any Claims from its
insurance policies.
(e) Applicability of Liability Limitations. Without limiting the
provisions of Section 9.6(c), the liability limitations set forth in Section
9.6(b) will not be applicable to any Claims based on fraud against a Seller
Indemnitee or a Purchaser Indemnitee, as applicable.
(f) Claims in Excess of Limitation. In determining whether the
liability limitation set forth in Section 9.6(b) is exceeded only Claims subject
to such limit shall be taken into account.
Section 9.7 Restoration Activities.
(a) Any repair, replacement, modification or improvements to the
Facility for which a Purchaser is indemnified pursuant to Section 9.2(a) and
does not result from a Claim brought by a third party (a "Restoration") shall be
conducted by WTI so as to meet the requirements of applicable Law (including
Environmental Laws) and the Service Agreement and the industry standards that a
reasonable and prudent owner of a waste-to-energy facility would utilize in
making the Restoration, as if the costs of the Restoration were being borne by
such owner (the "Restoration Standard").
(b) WTI shall provide Seller with written notice containing, to the
extent known, a description of the proposed Restoration, the projected costs
thereof, any relevant deadlines for commencing the Restoration and the Persons
to be engaged to perform the Restoration (the "Restoration Information"). Seller
may object to the proposed Restoration to the extent (1) the proposed
Restoration exceeds the Restoration Standard or (2) the costs of all or part of
the proposed Restoration are unreasonably high. If Seller objects to any portion
of the proposed Restoration on such grounds, it shall notify WTI of its
objections and the reasons therefor within fourteen (14) calendar days after
receipt of the Restoration Information. If, in the course of performing any
Restoration, any information included in the Restoration Information changes in
any material way (e.g., a material increase in projected Restoration costs), WTI
shall promptly supplement the Restoration Information in writing ("Supplemental
Restoration Information"), and Seller shall have fourteen (14) calendar days
from its receipt of such information to raise any objections to the information
contained therein. Any such objections shall be limited to the same grounds
(1-2) as above and also shall be limited only to the Supplemental Restoration
Information. Seller and WTI agree that any dispute arising from Seller's
objections to any Restoration Information shall be subject to the resolution
procedure set forth in Section 9.7(f). Notwithstanding Seller's objections to
the Restoration Information, WTI may conduct the Restoration as it sees fit but
shall not be entitled to recover costs to which Seller has objected unless the
matter is resolved in WTI's favor. WTI shall submit periodic invoices to Seller
for Restoration work completed and shall be reimbursed by Seller for any costs
of Restoration incurred within the overall cost budget for the Restoration
within thirty (30) days after submission of each invoice therefor accompanied by
reasonable documentation substantiating the completed work.
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(c) WTI shall, in all events, except as permitted below, (i) use
Commercially Reasonable Efforts to minimize costs of the Restoration; (ii)
conduct the Restoration in accordance with the Restoration Standard; and (iii)
allow Seller or its agent reasonable access to the property for the sole purpose
of monitoring the Restoration, so long as Seller or its agent does not interfere
with the Restoration or WTI's operations. The parties agree that WTI may conduct
the Restoration in excess of the Restoration Standard, but WTI shall not be
entitled to reimbursement from Seller for any incremental costs associated with
WTI's efforts which exceed the Restoration Standard.
(d) WTI shall use reasonable efforts to (i) except in an emergency or
to the extent required to mitigate exposure to material liability resulting from
a violation of Law or the Service Agreement, provide advance notice to the
Seller of the Restoration and (ii) keep the Seller reasonably informed of the
progress of any such Restoration and the schedule for completing such
Restoration; provided, however, that the failure to so notify or inform shall
not relieve the Seller of its obligations hereunder, except to the extent that
the Seller is actually and materially prejudiced thereby.
(e) Notwithstanding the foregoing, Seller shall have the right to
contest whether the Restoration is subject to the indemnification provisions set
forth in Section 9.2, which dispute shall be resolved in accordance with Section
11.12; provided that Seller notifies WTI of its contesting of the Restoration
and the reasons therefor within ninety (90) days after Seller's receipt or
delivery of the Restoration Information.
(f) Any dispute under this Section 9.7 that cannot be resolved shall be
submitted for binding resolution on a timely basis to an engineer or commercial
arbitrator with demonstrated expertise jointly chosen and retained by the
parties, with costs split equally between WTI and Seller; provided, however, the
engineer/arbitrator so chosen shall neither (i) have previously performed
services for Seller, either WTI or any of their respective Affiliates, unless
such services are disclosed to the other party and the other party raises no
objection, nor (ii) be eligible to perform any services with respect to the
Restoration at issue (other than in the context of resolving the related dispute
pursuant to this Section 9.7(f)). If either party prevails with respect to every
position which it asserts to the engineer/arbitrator in a dispute resolution
procedure, it shall be entitled to payment of all of its costs arising from the
dispute resolution by the other party, which costs shall include, but not be
limited to, consultants' and attorneys' fees and the fees of the
engineer/arbitrator.
ARTICLE X
TERMINATION AND ABANDONMENT
Section 10.1 Termination.
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned, at any time prior to the Closing:
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(a) by mutual consent of both parties;
(b) subject to Sections 1.7(b) and 7.4, by Seller or by WTI if the
Closing shall not have occurred by November 30, 2003 (the "Election Date");
provided that if a Loss Event occurs prior to November 30, 2003, the Election
Date shall be extended for a period of one hundred twenty (120) days after the
Loss Event or thirty (30) days following the completion of any Corrective
Action, whichever is earlier; provided, further that Seller and WTI hereby agree
to use Commercially Reasonable Efforts to endeavor to effect the Closing on or
before September 15, 2003; and; provided, further, 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 shall be the cause of the
failure of the Closing to occur on or before such date;
(c) by Seller or by WTI, if there has been a material breach of any
covenant or a material breach of any representation or warranty on the part of
the other party, provided, however, that any such breach of a covenant or
representation or warranty has not been cured within 10 Business Days following
receipt by the breaching party of written notice of such breach; and
(d) by Seller or by WTI, if any Law shall render illegal or otherwise
prohibits consummation of the transactions contemplated hereby or by the
Facility Transfer Agreement or if any Order renders illegal or otherwise
prohibits such transactions and shall become final and non appealable; and
(e) by Seller or by WTI, if IDA delivers to WTI a written notice
stating that IDA's board has voted not to authorize the execution by IDA of the
Facility Transfer Agreement.
Section 10.2 Effect of Termination.
In the event of the termination of this Agreement pursuant to Section
10.1 by WTI, on the one hand, or Seller, on the other hand, written notice
thereof shall forthwith be given to the other party specifying the provision
hereof pursuant to which such termination is made, and this Agreement shall be
terminated and there shall be no liability hereunder on the part of WTI or
Seller, except that the provisions of Section 11.1, Section 11.2, Section 11.4,
Section 11.5 and 11.12 shall survive any termination of this Agreement. Nothing
in this Section 10.2 shall relieve any party of liability for breach of this
Agreement (other than a breach by Seller of Section 4.2 and other than as
provided in Section 4.10) prior to any termination or preclude any party for
seeking specific performance in lieu of terminating this Agreement; provided,
however, that neither WTI nor Seller shall be entitled to claim, and each hereby
expressly waives any right to, any consequential, punitive or other special
damages. Except for breaches of Section 4.2 by Seller described in the last
sentence of Section 4.2(a), WTI's sole remedy for a breach of Section 4.2 is to
treat such breach as the nonfulfillment of the conditions to WTI's obligations
in Section 7.2 and WTI shall not be entitled to seek any damages based upon a
breach of Section 4.2, except as otherwise provided therein.
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ARTICLE XI
MISCELLANEOUS
Section 11.1 Expenses.
Except as expressly provided herein, each party hereto shall pay all of
its own expenses relating to the transactions contemplated by this Agreement
including, without limitation, the fees and expenses of their respective counsel
and financial advisers.
Section 11.2 Governing Law.
This Agreement, and the legal relations between the parties hereto,
shall be governed by and construed in accordance with the Laws of the State of
New York applicable to agreements executed and to be performed solely within
such State.
Section 11.3 Captions.
The Article, Section, Exhibit and other captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 11.4 Public Announcements.
At all times before the Closing, neither Seller nor WTI will issue or
make any reports, statements or releases to the public or generally to the
employees, customers, suppliers or other Persons with whom Seller has
significant business relationships in connection with the operation of the
Facility with respect to this Agreement or the transactions contemplated hereby
without the consent of the other, which consent shall not be unreasonably
withheld except that WTI may provide to IDA or Washington County or Warren
County such information concerning the transaction requested by IDA and shall
not be responsible for any actions or statements of the IDA, Washington County
or Warren County or any person to whom the IDA, Washington County or Warren
County provides such information. If either party is unable to obtain the
approval of its public report, statement or release from the other party and
such report, statement or release is, in the opinion of legal counsel to such
party, required by Law in order to discharge such party's disclosure
obligations, then such party may make or issue the legally required report,
statement or release and promptly furnish the other party with a copy thereof.
Section 11.5 Notices.
Any notice, delivery or other communication required or permitted under
this Agreement shall be sufficiently given if delivered in person or sent by
telecopy (with receipt confirmed) or by registered or certified mail, postage
prepaid, or by Federal Express or other nationally recognized overnight delivery
service providing for receipt against delivery, delivery charges prepaid,
addressed as follows:
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if to WTI:
Wheelabrator Technologies, Inc.
4 Liberty Lane West
Hampton, New Hampshire 03842
Attention: General Counsel
and an additional copy (which shall not constitute notice) to:
Hogan & Hartson L.L.P.
111 South Calvert Street
Suite 1600
Baltimore, Maryland 21202
Telecopier: (410) 539-6981
Attention: Edward C. Sledge, Esq.
If to Seller:
Adirondack Resource Recovery Associates, L.P.
c/o Foster Wheeler Inc.
Perryville Corporate Park
Service Road East 173
Clinton, New Jersey 08809
Telecopier: (908) 730-4160
Attention: Steven I. Weinstein, Esquire
Deputy General Counsel and Vice President
with a copy (which shall not constitute notice) to:
Wolff & Samson PC
One Boland Drive
West Orange, New Jersey 07052
Telecopier: (973) 530-2205
Attention: Daniel A. Schwartz, Esq.
or to such other Person as shall be designated in writing by any such party or
Person; and such notice or communication shall be deemed to have been given as
of the date so delivered in person or sent by telecopier, three days after the
date so mailed and the next Business Day after deposit with such overnight
delivery service; provided, however, that all notices of any change of address
shall be effective only upon actual receipt thereof.
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Section 11.6 Parties in Interest.
This Agreement may not be transferred, assigned, pledged or
hypothecated by any parties hereto, other than by operation of law. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Section 11.7 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which taken together shall
constitute one instrument.
Section 11.8 Entire Agreement.
This Agreement and the Confidentiality Agreement contain the entire
understanding of the parties hereto with respect to the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter (other
than the Confidentiality Agreement).
Section 11.9 Amendments.
This Agreement may not be changed, amended, waived, or modified orally,
but only by an agreement in writing signed by WTI and Seller.
Section 11.10 Severability.
In case any provision in this Agreement shall be held invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby and WTI
and Seller shall in good faith negotiate and use their Commercially Reasonable
Efforts to agree upon another or other provisions which provide the economic
effect and purpose envisaged by the invalid, illegal or unenforceable provision.
Section 11.11 Third Party Beneficiaries.
Except as expressly provided in Section 9.2 or elsewhere herein with
respect to Seller Indemnitees and Purchaser Indemnitees, each party hereto
intends that this Agreement shall not benefit or create any right or cause of
action in or on behalf of any Person (including, but not limited to, the
Employees) other than the parties hereto.
Section 11.12 Submission to Jurisdiction; Waiver of Jury Trial.
Seller and WTI hereby submit to the jurisdiction of the United States
District Court for the Southern District of New York (and if such court does not
have jurisdiction over a matter at controversy between the parties, any New York
State Court located within the City of New York) for purposes of all legal
proceedings which may arise hereunder or under any of the other documents
entered into in connection herewith. Seller and WTI irrevocably waive, to the
fullest extent permitted by Law, any objection which it may have or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. Seller and WTI hereby consent to process being served
in any such proceeding by the mailing of a copy thereof by registered or
certified mail, postage prepaid, to its address specified in Section 11.5 or in
any other manner permitted by Law. SELLER AND WTI HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER DOCUMENTS ENTERED INTO IN CONNECTION HEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OF WTI OR SELLER.
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Section 11.13 Construction.
The parties hereto hereby acknowledge and agree that they and their
respective counsel have independently reviewed and have had an opportunity to
make revisions to this Agreement and that the normal rule of construction,
whereby ambiguities are to be resolved against the drafting party, shall be
inapplicable to this Agreement.
Section 11.14 Gender and Number.
For purposes of this Agreement, words (including all capitalized terms
set forth in Exhibit A) importing a particular gender shall mean and include
every other gender and importing the singular shall include the plural and vice
versa.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf, acknowledging that the effective date of this
Agreement shall be as of the day and year first above written.
WTI:
WHEELABRATOR HUDSON FALLS L.L.C.
By: WESI Peekskill Inc.,
Its Sole Member
By: /s/ David M. Beavens
------------------------------------------
Name: David M. Beavens
Title: Vice President
SELLER:
ADIRONDACK RESOURCE RECOVERY
ASSOCIATES, L.P.
By: Foster Wheeler Hudson Falls, Inc.
Its General Partner
By: /s/ Peter D. Rose
------------------------------------------
Name: Peter D. Rose
Title: Vice President
EXHIBIT A
DEFINITIONS
"Access Agreement" means the Access Agreement dated January 7, 2003,
among Seller, WTI and IDA and the amendments dated March 7, 2003 and as of June
24, 2003, as the same may be further amended.
"Affiliate" means any Person that directly, or indirectly through one
of more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by Contract or otherwise and, in
any event and without limitation of the previous sentence, any Person owning ten
percent (10%) or more of the voting securities of another Person shall be deemed
to control that Person. The Affiliates of the IDA are Washington County and
Warren County.
"Agreement" means this Asset Purchase Agreement and the Exhibits and
the Schedules hereto, as the same shall be amended from time to time.
"Anti-Assignment Clause" has the meaning set forth in Section 1.6(b).
"ARRA-County Releases" has the meaning set forth in Section 1.4(d)(v).
"ARRA-IDA General Assignment" has the meaning set forth in Section
1.4(b)(i).
"ARRA-IDA Mutual Release" has the meaning set forth in Section
1.4(d)(iii).
"ARRA Post-Signing Events" has the meaning set forth in Section
4.10(a).
"ARRA-WTI General Assignment" has the meaning set forth in Section
1.4(b)(ii).
"Assets" has the meaning set forth in Section 1.1(a).
"Assets and Properties" 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.
"Assignable" means, with respect to any Contract to which Seller is a
party, that such Contract is either (i) assignable by Seller to WTI at Closing
without the consent of the counterparty thereto, or (ii) assignable by Seller to
WTI at Closing only with the consent of the counterparty thereto which consent
has been obtained.
"Assigned Claims" has the meaning set forth in Section 1.1(a)(i)(I).
A-1
"Assigned Intellectual Property" has the meaning set forth in Section
1.1(a)(i)(E).
"Assumed Liabilities" means the WTI Assumed Liabilities and the IDA
Assumed Liabilities.
"Attachment II Data" means the data contained or referred to in Exhibit
CC annexed hereto.
"Balance Sheet" has the meaning set forth in Section 2.5.
"Balance Sheet Date" has the meaning set forth in Section 2.5.
"Bonds" mean IDA's outstanding bonds issued pursuant to the Bond
Indenture prior to the date of this Agreement.
"Bond Counsel" means Nixon Peabody LLP or such other law firm then
acting as bond counsel to the IDA with respect to the Bonds in accordance with
the Bond Indenture.
"Bond Counsel Opinion" has the meaning set forth in the Recitals.
"Bondholder Consent" has the meaning set forth in the Recitals.
"Bond Indenture" means the Mortgage, Security Agreement and Trust
Indenture, dated as of January 1, 1989 between the IDA and the Trustee as
amended to date.
"Business Contracts" has the meaning set forth in Section 1.1(a)(i)(B).
"Business Day" means a day other than Saturday, Sunday or any day on
which banks located in the State of New York are authorized or obligated to
close.
"Business Records" has the meaning set forth in Section 1.1(a)(i)(G).
"Claims" means all demands, claims, actions or causes of action,
assessments, complaints, directives, citations, legal proceedings, orders,
notices of potential responsibility, notices of violation, losses, damages,
liabilities, sanctions, costs and expenses, including, without limitation,
interest, penalties and attorneys' and experts' fees and disbursements and, to
the extent necessitated due to a breach of this Agreement by Seller or of
Seller's representations or warranties or events or conditions described in
Section 9.2(a)(iii), expenditures necessary to make a repair, modification or
improvement to the Facility; provided, however, that Claims shall not include
any consequential, punitive, or special damages or similar damages incurred by
an Indemnified Party. Notwithstanding the foregoing if an Indemnified Party must
pay to a third party consequential, punitive or special damages, the amounts so
payable shall be included within the term "Claim".
"Closing" means the closing of the transactions contemplated by Section
1.4.
A-2
"Closing Date" means the date on which the Closing occurs, subject to
the termination rights set forth in this Agreement, and in any event no later
than the Business Day immediately after the date on which all of the conditions
set forth in Articles VII and VIII hereof are either satisfied or waived.
"COBRA" means the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, and the rules and regulations promulgated thereunder.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Reasonableness Standard" means in connection with any
Remediation: (1) if any Governmental Authority is directing or overseeing the
Remediation, compliance with applicable Environmental Laws and the Governmental
Authority's instructions or minimum requirements, or (2) if any Governmental
Authority is not directing or overseeing the Remediation, compliance with
applicable Environmental Laws. In each case, Remediation shall include, where
available and cost effective, risk-based cleanup standards, engineering
controls, institutional controls and deed restrictions to the extent such
standards or restrictions are consistent and compatible with the uninterrupted
and continued use of the property subject to Remediation as currently used,
taking into account any adverse impact that the Remediation or residual
contamination might have on the Real Property as currently used or the operation
of the Facility.
"Commercially Reasonable Efforts" means with respect to any action
required to be made, attempted or taken by a party under this Agreement, such
efforts as a prudent business in the same or substantially similar industry as
such party would undertake for the protection of its own interest under the
conditions affecting such action, including without limitation, the amount of
notice of the need to take such action, the duration and type of the action, the
competitive environment in which such action occurs, and other material
considerations.
"Common Control Entity" means any trade or business under common
control (as such term is defined in Section 414(b) or 414(c) of the Code) with
Seller or any Affiliate thereof.
"Confidentiality Agreement" has the meaning set forth in Section 4.1.
"Construction Contract" has the meaning set forth in Section 1.5(c).
"Contest" has the meaning set forth in Section 7.4.
"Contract" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract.
"Corrective Action" has the meaning set forth in Section 1.7(b).
"Cutoff Payment" has the meaning set forth in Section 1.5(b).
"DEC" shall mean the New York State Department of Environmental
Conservation.
A-3
"Defined Benefit Plan" shall mean a Plan that is or was a "defined
benefit plan" as such term is defined in Section 3(35) of ERISA.
"Disclosure Bringdown" has the meaning set forth in Section 4.10(a).
"Election Date" has the meaning set forth in Section 10.1(b).
"Employee" means each employee of Seller whose employment
responsibilities primarily relate to the Facility and who usually performs such
responsibilities at the Facility.
"Environmental Claims" means all Claims pursuant to Environmental Laws.
"Environmental Laws" means any Laws (including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act and the
New York Environmental Conservation Law) in effect on or prior to the Closing
Date relating to the Remediation, generation, production, installation, use,
storage, treatment, transportation, Release, or threatened Release of Hazardous
Materials, or noise control, or the protection of human health, safety, natural
resources, or the environment, and including, without limitation, the terms,
conditions and limitations contained in any Environmental Permits required
pursuant to such Laws.
"Environmental Permits" means any and all licenses, permits,
franchises, certificates, registrations, approvals and other authorizations
required to be obtained from or filed with any Governmental Authority under any
Environmental Laws.
"Environmental Representations" has the meaning set forth in Section
9.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all Laws promulgated pursuant thereto or in connection therewith.
"ERISA Affiliate Plan" has the meaning set forth in Section 1.2(c)(vi).
"Excluded Assets" has the meaning ascribed to it in Section 1.1(b).
"Facility" has the meaning set forth in the Recitals.
"Facility Access Easement" has the meaning set forth in the Recitals.
"Facility Site" has the meaning set forth in the Recitals.
"Facility Transfer Agreement" has the meaning set forth in the
Recitals.
"Financial Statements" has the meaning set forth in Section 2.5.
"Foster Wheeler Intellectual Property" has the meaning set forth in
Section 1.1(b)(iv).
A-4
"Foster Wheeler Technology" means rights in patents, copyrights, trade
secrets, supporting procedural documents and environmental support documents
(including, but not limited to, specifications, "as-built" plans, safety
manuals, operating manuals, and technical manuals) owned or licensed by Seller's
Affiliates and necessary for the operations and maintenance of the Facility, but
excluding the Foster Wheeler Intellectual Property.
"Foster Wheeler Technology License" has the meaning set forth in
Section 7.11.
"FW Guarantor" has the meaning set forth in the Recitals.
"GAAP" has the meaning set forth in Section 2.5.
"General Partner" means Foster Wheeler Hudson Falls, Inc.
"Governmental Authority" means any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or any Native American tribal council or similar
governing entity having jurisdiction over the applicable subject matter.
"Hazardous Materials" means any wastes, substances or materials
(whether solids, liquids or gases): (i) which are hazardous or toxic or
radioactive or petroleum or petroleum products (including, without limitation,
crude oil, refined oil products, or any fraction thereof); (ii) which are as of
or prior to the Closing Date, defined as "pollutants", "hazardous materials",
"hazardous wastes", "hazardous substances", "toxic substances", "radioactive
materials", "solid wastes", or other similar designations in, or otherwise
subject to regulation under, any Environmental Laws; or (iii) which contain,
without limitation, any polychlorinated biphenyls, (PCBs) methyl-tertiary butyl
ether (MTBE), asbestos or asbestos-containing materials, lead-based paints,
except in the case of (i) or (ii) above, where any such wastes, substances or
materials are present upon the Parcel pursuant to a permitted release or
discharge and in a quantity or at a concentration or in a place that does not
violate applicable Environmental Law or create any obligation of Remediation
under Environmental Law.
"Hazardous Materials Laws" means the Federal Comprehensive
Environmental Response Compensation and Liability Act ("CERCLA"), 42
U.S.C. ss.9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. ss.6901 et seq., the Toxic Substance Control Act, 15 U.S.C. ss.2601, the
Federal Oil Pollution Act, 33 U.S.C. ss.2702 or any similar state or municipal
law.
"HIPAA" has the meaning set forth in Section 1.2(c)(vi).
"IDA" has the meaning set forth in the Recitals.
"IDA-ARRA Deliverables" has the meaning set forth in the Facility
Transfer Agreement.
"IDA Assets" has the meaning set forth in Section 1.1(a)(ii).
A-5
"IDA Assumed Liabilities" has the meaning as defined in the IDA
Assumption Agreement.
"IDA Assumption Agreement" has the meaning set forth in Section
1.4(d)(i).
"IDA Assumption Instruments" has the meaning set forth in Section
1.4(d)(ii).
"IDA Litigation Release" has the meaning set forth in Section
1.4(d)(iv).
"IDA-WTI Deliverables" has the meaning set forth in the Facility
Transfer Agreement.
"Impacted Party" has the meaning set forth in Section 9.2(b).
"Indebtedness" of any Person means all obligations of such Person (i)
for borrowed money, (ii) evidenced by notes, bonds, debentures or similar
instruments, (iii) for the deferred purchase price of goods or services (other
than trade payables or accruals incurred in the ordinary course of business),
(iv) under capital leases and (v) in the nature of guarantees of the obligations
described in clauses (i) through (iv) above of any other Person.
"Indemnified Party" has the meaning set forth in Section 9.3(a).
"Indemnifying Party" has the meaning set forth in Section 9.3(a).
"Individual Account Plan" means a Plan that is or was an "individual
account plan" as such term is defined in Section 3(34) of ERISA.
"Installment Sale Agreement" has the meaning set forth in the Recitals.
"Intellectual Property" has the meaning set forth in Section 2.12(a).
"Inventory" has the meaning given in Section 1.1(a)(i)(A).
"IRS" means the United States Internal Revenue Service.
"Key Business Contract" has the meaning given in Section 7.19.
"Knowledge" or similar phrases in this Agreement means: (i) in the case
of the Partners or Seller, the actual knowledge of the officers and employees of
Seller and the Partners who are persons generally responsible for the subject
matter to which knowledge is pertinent, such persons being listed in the
Certifying Officers Schedule, at the date as of which the representation,
warranty or covenant is made or repeated, and (ii) in the case of WTI the actual
knowledge of WTI's officers and employees who are persons generally responsible
for the subject matter to which knowledge is pertinent, such persons being
listed in the Certifying Officers Schedule, at the date as of which the
representation, warranty or covenant is made or repeated.
A-6
"Laws" means all federal, state and local statutes, laws, ordinances,
regulations, rules, orders, determinations, writs, injunctions, awards
(including, without limitation, awards of any arbitrator), judgments and decrees
applicable to the specified Persons or entities or to the businesses or assets
thereof (including, without limitation, laws relating to securities registration
and regulation; the sale, leasing, ownership or management of real property;
employment practices, terms and conditions, and wages and hours; building
standards, land use and zoning; safety, and health and fire prevention) in
effect as of or prior to the Closing Date; provided, however, the term "Laws"
shall not include Environmental Laws, except as specifically provided in this
Agreement and except as the term is used in the definition of Environmental
Laws.
"Liabilities" means all Indebtedness, obligations and other liabilities
of a Person (whether absolute, accrued, contingent, fixed or otherwise, or
whether due or to become due).
"Liens" means any mortgage, pledge, assessment, security interest,
lease to third parties, lien, adverse claim, levy, charge or other encumbrance
of any kind or easement, or any conditional sale contract, title retention
contract or other contract to give any of the foregoing.
"Limited Partner" means Foster Wheeler Adirondack, Inc.
"Litigation Rights" has the meaning set forth in Section 1.1(i)(J).
"Loss Event" has the meaning set forth in Section 1.7(b).
"Material Adverse Effect" means (1) a material adverse effect on the
business, properties, assets, liabilities, results of operations or financial
condition of the Assets taken as a whole, or (2) a material increase in an
Assumed Liability or a Liability of Seller against which WTI is indemnified by
Seller.
"Material Contract" has the meaning set forth in Section 2.8(a).
"May Balance Sheet" has the meaning set forth in Section 2.5.
"May Financial Statements" has the meaning set forth in Section 2.5.
"Multiemployer Plan" means a "multiemployer plan" as such term is
defined in Section 3(37) of ERISA.
"Non-ARRA Post-Signing Events" has the meaning set forth in Section
4.10(a).
"Northern Parcels" has the meaning set forth in the Recitals.
"NYSDEC" means the New York State Department of Environmental
Conservation.
"Order" means any writ, judgment, decree, injunction or similar order
of any Governmental Authority (in each such case whether preliminary or final).
A-7
"Other Arrangement" means a benefit program or practice providing for
bonuses, incentive compensation, vacation pay, severance pay, insurance,
restricted stock, stock options, employee discounts, company cars, tuition
reimbursement or any other perquisite or benefit (including, without limitation,
any fringe benefit under Section 132 of the Code) to employees, officers or
independent contractors that is not a Plan.
"Parcel" means the Facility Site and the Northern Parcels.
"Partners" means the General Partner and the Limited Partner,
collectively.
"Partnership Records" means the limited partnership agreement, minutes
of partnership activity, accounting records and other documents of Seller which
relate primarily to the existence and operation of Seller and which are not
required to own or operate the Facility.
"Pension Plan" means an "employee pension benefit plan" as such term is
defined in Section 3(2) of ERISA.
"Performance Guaranty" means the Guaranty of Foster Wheeler LLC
(formerly known as and successor by merger to Foster Wheeler Corporation), dated
December 20, 1998, made for the benefit of the IDA.
"Permits" has the meaning set forth in Section 2.9.
"Permitted Lien" means (i) those Liens and exceptions to title to the
Assets set forth in the Personal Property Schedule and the Real Property
Schedule (including the title reports attached thereto and/or referred to
therein); (ii) Liens created by or in connection with the Bond Indenture; (iii)
any Lien for Taxes not yet due or delinquent or being contested in good faith by
appropriate proceedings for which adequate reserves have been established in
accordance with GAAP; (iv) any statutory Lien arising in the ordinary course of
business by operation of Law with respect to a Liability that is not yet due or
delinquent; (v) zoning, entitlement, conservation restriction and other land use
and environmental regulations by any Governmental Authority; and (vi) any minor
imperfection of title or similar Lien, limited in the case of items (iii)-(vi)
to only those matters which, individually or in the aggregate with other such
Liens do not materially detract from the value of the Assets as currently used
or materially interfere with the ownership, operation and maintenance of the
Assets or cause a default under any of Seller's Bond Documents or the Service
Agreement.
"Person" means any natural person, corporation, general partnership,
limited partnership, proprietorship, limited liability company, other business
organization, trust, union, association or Governmental Authority.
"Personal Property" has the meaning set forth in Section 2.6(a).
"Plan" shall mean any plan, program or arrangement, whether or not
written, that is or was an "employee benefit plan" as such term is defined in
Section 3(3) of ERISA and (a) which was or is established or maintained by
Seller or any Subsidiary; (b) to which Seller contributed or was obligated to
contribute or to fund or provide benefits; or (c) which provides or promises
benefits to any Person who performs or who has performed services for Seller or
who is or was employed by Seller or any Subsidiary or is or has been (i) a
participant therein or (ii) entitled to benefits thereunder.
A-8
"Post-Signing Event" has the meaning set forth in Section 4.10(a).
"Post-Signing Period" has the meaning set forth in Section 4.2(a).
"PPA" has the meaning set forth in Section 1.1(a)(i)(B).
"Pre-Closing Period" has the meaning set forth in Section 2.11(a).
"Preexisting Hazardous Materials" means Hazardous Materials that were
present on the Parcel prior to the date of Seller's use and/or occupancy of the
Parcel.
"Pre-Seller Environmental Claim" means any Environmental Claim to the
extent arising from Preexisting Hazardous Materials, but excluding any
Environmental Claim arising out of or relating to (i) Seller's intentional
violation of Hazardous Materials Law, or (ii) Seller's violation (whether
intentional or not) of any other Environmental Laws or Laws. For the avoidance
of doubt, Pre-Seller Environmental Claim will include, without limitation, any
Environmental Claim arising from Seller's movement of Pre-Existing Hazardous
Materials from one location on the Parcel to another location on the Parcel,
unless such activity falls within one of the two enumerated exclusions set forth
above.
"Pre-Signing Event" has the meaning set forth in Section 4.10(a).
"Proscribed Pre-Closing Actions" has the meaning set forth in Section
4.2(a).
"Purchase Price" has the meaning set forth in Section 1.3.
"Purchaser" means, individually, WTI or the IDA, as the case may be.
"Purchaser Approvals" has the meaning ascribed to it in Section 1.6(a).
"Purchaser Indemnitee" and "Purchaser Indemnitees" has the meaning set
forth in Section 9.2(a).
"Qualified Plan" means a Pension Plan that satisfies, or is intended by
Seller to satisfy, the requirements for tax qualification described in Section
401 of the Code.
"Real Property" has the meaning ascribed to it in Section
1.1(a)(ii)(A).
A-9
"Release" means any presence, emission, spill, seepage, leak, escape,
leaching, discharge, injection, pumping, pouring, emptying, dumping, disposal,
or migration (whether active or passive) of Hazardous Materials from any source
(including without limitation, the Parcel and property adjacent to the Parcel)
into or upon the environment, including the air, soil, improvements, surface
water, groundwater, the sewer, septic system, storm drain, publicly owned
treatment works, or waste treatment, storage, or disposal systems. For purposes
of this Agreement a "Release" shall not include the relocation of Pre-existing
Hazardous Materials from one portion of the Parcel to any other portion of the
Parcel unless such relocation of materials is excluded from the definition of
Pre-Seller Environmental Claim.
"Remediation" means any assessment, investigation, clean-up, removal
action, remedial action, restoration, repair, response action, corrective
action, monitoring, sampling and analysis, installation, reclamation, closure,
or post-closure in connection with a suspected, threatened or actual Release.
"Remediation Information" has the meaning set forth in Section 9.4(c).
"Reserved Construction Contract Rights" has the meaning set forth in
Section 1.5(c).
"Responsible Party" has the meaning set forth in Section 9.2(b).
"Restoration" has the meaning set forth in Section 9.7(a).
"Restoration Information" has the meaning set forth in Section 9.7(b).
"Restoration Standard" has the meaning set forth in Section 9.7(a).
"Restructuring" has the meaning set forth in the Recitals.
"Retained Liabilities" has the meaning set forth in Section 1.2(c).
"Retirement Plan" has the meaning set forth in Section 4.9.
"Returns" means all returns, statements, forms and reports for Taxes to
be filed with appropriate taxing Governmental Authorities.
"Savings Plan" has the meaning set forth in Section 4.8.
"Seller" has the meaning set forth in the Recitals.
"Seller APA Guarantee" has the meaning set forth in the Recitals.
"Seller Environmental Claims" means all Environmental Claims based on,
arising out of or otherwise relating to: (i) the Remediation, presence or
Release of, or exposure to, Hazardous Materials initiated, or to the extent
first existing or occurring during Seller's use and/or occupancy of the Parcel
prior to the Closing Date at, on, under, above, from, or about the Parcel or any
real properties formerly owned, leased or operated by Seller or the Partners
and/or their employees, contractors and agents; (ii) the off-site Release,
treatment, transportation, storage or disposal initiated, existing or occurring
during Seller's use and/or occupancy of the Parcel prior to the Closing Date of
Hazardous Materials originating from the Facility; (iii) violations of
Environmental Laws by Seller or the Partners and/or their employees, contractors
and agents to the extent attributable to Seller or its Partners, including
reasonable expenditures necessary to resolve violations of Environmental Laws
and (iv) Seller Off-Site Environmental Claims.
A-10
"Seller Indemnitee" and "Seller Indemnitees" has the meaning set forth
in Section 9.2(c).
"Seller Off-Site Environmental Claims" means any liabilities,
obligations or responsibilities arising under or related to former or current
Environmental Laws or the common law, whether such liability, obligation or
responsibility is known or unknown, contingent or accrued, as a result of or in
connection with Seller's (or its agent's subcontractor's employee's or
Affiliate's to the extent they are acting on Seller's behalf whether or not with
actual authority) storage, disposal, transportation, discharge, Release,
recycling or other management of Hazardous Materials prior to the Closing by
Seller or others acting on Seller's behalf, whether or not with actual
authority, in connection with the Facility, the Parcel, or the business of
Seller, at or to locations other than the Parcel.
"Seller's Bond Documents" has the meaning set forth in Section
1.1(a)(ii)(B).
"Service Agreement" has the meaning set forth in the Recitals.
"Service Agreement Settlement Agreement" has the meaning set forth in
Section 1.4(d)(vi).
"Settlement Agreement" has the meaning set forth in Section 1.4(d)(iv).
"Settlement Amount" has the meaning set forth in Section 1.3.
"Statutory-Waiver Plan" shall mean a Pension Plan that is not subject
to title I, subtitle B, part 3, of ERISA (concerning "funding").
"Stipulation of Discontinuance" has the meaning set forth in Section
1.4(d)(iv).
"Straddle Expenses" have the meaning set forth in Section 1.5(a).
"Supplemental Remediation Information" has the meaning set forth in
Section 9.4(c).
"Supplemental Restoration Information" has the meaning set forth in
Section 9.7(b).
"Survey" has the meaning set forth in the Recitals.
"Tangible Personal Property" has the meaning set forth in Section
1.1(a)(i)(C).
"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.
A-11
"Tax Representations" has the meaning set forth in Section 9.1.
"Title and Partnership Authority Representations" has the meaning set
forth in Section 9.1.
"Transfer Agreements" means, collectively, this Agreement, the ARRA-WTI
General Assignment, the WTI Assignment Instruments, the ARRA-IDA General
Assignment, the IDA Assumption Agreement, the IDA Assumption Instruments, the
WTI Assumption Agreement and the WTI Assumption Instruments.
"Transferable Permits" has the meaning set forth in Section
1.1(a)(i)(D).
"Transfer Taxes" has the meaning set forth in Section 5.1(a).
"Trustee" means The Bank of New York, as trustee under the Bond
Indenture, or any successor trustee under the Bond Indenture.
"Trustee Consent" has the meaning set forth in the Recitals.
"Warranties" has the meaning set forth in Section 1.1(a)(i)(F).
"Welfare Plan" shall mean an "employee welfare benefit plan," as such
term is defined in Section 3(1) of ERISA.
"Wheelabrator" has the meaning set forth in the Recitals.
"WTI" has the meaning set forth in the Recitals.
"WTI APA Guarantee" has the meaning set forth in the Recitals.
"WTI Assets" has the meaning set forth in Section 1.1(a)(i).
"WTI Assignment Instruments" has the meaning set forth in Section
1.4(b)(iii).
"WTI Assumed Liabilities" has the meaning as defined in the WTI
Assumption Agreement.
"WTI Assumption Agreement" has the meaning set forth in Section
1.4(c)(i).
"WTI Assumption Instruments" has the meaning set forth in Section
1.4(c)(ii).
A-12
"WTI Environmental Claims" means all Environmental Claims, based on,
arising out of or otherwise relating to: (i) the Remediation, presence or
Release of, or exposure to, Hazardous Materials first brought to or generated on
the Facility Site by WTI and/or its employees, contractors and agents following
the Closing Date at, on, under, above, from, or about the Facility, Facility
Site, and Real Property; (ii) the off-site Release, treatment, transportation,
storage or disposal of Hazardous Materials first brought to or generated on the
Facility Site by WTI and/or its employees, contractors and agents following the
Closing Date; (iii) violations of Environmental Laws by WTI and/or its
employees, contractors and agents to the extent attributable to WTI, including
reasonable expenditures necessary to resolve violations of Environmental Laws.
"WTI Environmental Claims" shall not include any Seller Environmental Claims or
Pre-Seller Environmental Claims.
A-13
EXHIBIT B
Form of ARRA - IDA General Assignment
B-1
EXHIBIT C
Form of ARRA - WTI General Assignment
C-1
EXHIBIT D
Form of WTI Assumption Agreement
D-1
EXHIBIT E
Form of IDA Assumption Agreement
E-1
EXHIBIT F-1
Form of Trustee Consent
F-1
EXHIBIT F-2
Form of Bond Counsel Opinion and Reliance Letter
F-2
EXHIBIT F-3
Form of Bondholder Consent
F-3
EXHIBIT G
Form of Opinion of Wolff & Samson
G-1
EXHIBIT H
[Reserved]
H-1
EXHIBIT I
[Reserved]
I-1
EXHIBIT J
Form of Opinion of Foster Wheeler In-House Counsel
J-1
EXHIBIT K
Form of PPA Assignment Notification
K-1
EXHIBIT L-1
Form of Opinion of WTI In-House Counsel
L-1
EXHIBIT L-2
Form of Opinion of Hogan & Hartson L.L.P.
L-2
EXHIBIT M
Form of Seller's General Partner's Officer Certificate
M-1
EXHIBIT N
Form of Seller's Incumbency Certificate
N-1
EXHIBIT O
Form of WTI Officer's Certificate
O-1
EXHIBIT P
Form of WTI's Incumbency Certificate
P-1
EXHIBIT Q
Form of ARRA - IDA Mutual Release
Q-1
EXHIBIT R-1
Form of Stipulation of Discontinuance
R-1
EXHIBIT R-2
Form of Settlement Agreement
R-2
EXHIBIT R-3
Form of IDA Litigation Release
R-3
EXHIBIT S-1
Form of Limited Release of the IDA
S-1
EXHIBIT S-2
Form of Limited Release of Washington County
S-2
EXHIBIT S-3
Form of Notice of Discontinuance
S-3
EXHIBIT S-4
Form of Limited Release of the Seller and General Partner
S-4
EXHIBIT S-5
Form of Limited Release of the Trustee
S-5
EXHIBIT T
Form of Facility Transfer Agreement
T-1
EXHIBIT U
Form of Service Agreement Settlement Agreement
U-1
EXHIBIT V
Executed Access Agreement
V-1
EXHIBIT W
Form of Foster Wheeler Technology License
W-1
EXHIBIT X
Executed WTI APA Guarantee
X-1
EXHIBIT Y
Executed Seller APA Guarantee
Y-1
EXHIBIT Z
Form of Opinion of IDA Counsel
Z-1
EXHIBIT AA
Form of Opinion of Washington County Counsel
AA-1
EXHIBIT BB
Form of Opinion of Warren County Counsel
BB-1
EXHIBIT CC
ATTACHMENT II DATA
BB-1