ASSET PURCHASE AND SALE AGREEMENT

Exhibit 10.2

 

 

 

ASSET PURCHASE AND SALE AGREEMENT

by and between

MEP FLORA POWER, LLC

and

UNION ELECTRIC COMPANY D/B/A AMERENUE,

dated as of

December 16, 2005

___________________________________________

PURCHASE OF RACCOON CREEK GENERATING FACILITY AND RELATED ASSETS

___________________________________________

 

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

TABLE OF CONTENTS

 

Page

 

 

 

Article 1		Definitions		1
	1.1	Defined Terms		1
	1.2	Rules of Interpretation		7
Article 2		Sale and Purchase		8
	2.1	Purchased Assets		8
	2.2	Excluded Assets		9
	2.3	Assumed Liabilities	10
	2.4	Excluded Liabilities	10
	2.5	Purchase Price; Payment; Proration	11
Article 3		Closing Date and Actions at Closing	11
	3.1	Closing Date	11
	3.2	Actions to be Taken at Closing	11
Article 4		Representations and Warranties Relating to Seller	13
	4.1	Due Organization and Qualification	13
	4.2	Subsidiaries	13
	4.3	Power and Authority	13
	4.4	No Violations	13
	4.5	Valid, Binding and Enforceable Obligation	13
	4.6	Governmental Consents	14
	4.7	Additional Consents	14
	4.8	No Litigation	14
	4.9	Brokers’ Fees	14
	4.10	Bankruptcy	14
	4.11	Good Faith	14
	4.12	Absence of Certain Changes	15
	4.13	No Undisclosed Liabilities	15
	4.14	Contracts	15
	4.15	Tax Matters	15
	4.16	Labor Matters	16
	4.17	Employees; Employee Benefits; Employee Contracts	16
	4.18	Legal Compliance; Governmental Approvals	18

 

 

Raccoon APA DOCSNY1:1172777.5 12115-16 RM9/RM9

i

 

 

TABLE OF CONTENTS

(continued)

Page

 

 

 

	4.19	Software	18
	4.20	Environmental, Health and Safety Matters	18
	4.21	Affiliate Transactions	19
	4.22	Insurance	19
	4.23	Ownership of Purchased Assets; Permitted Encumbrances	19
	4.24	Real Property Interests	20
	4.25	Stand-Alone Operations; Sufficiency	20
	4.26	Cost-Based Rates	20
	4.27	Removal of Project from Seller Parties’ Designated Resources	20
Article 5		Representations and Warranties Relating to Buyer	20
	5.1	Due Organization	20
	5.2	Power and Authority	21
	5.3	Valid, Binding and Enforceable Obligations	21
	5.4	No Violations	21
	5.5	Governmental Consents	21
	5.6	Additional Consents	21
	5.7	No Litigation	21
	5.8	Bankruptcy	22
	5.9	Brokers’ Fees	22
	5.10	Due Diligence	22
	5.11	Exculpation	22
	5.12	Good Faith	22
Article 6		Conditions Precedent to Closing	22
	6.1	Conditions Precedent to the Parties’ Obligations	22
	6.2	Conditions Precedent to Buyer’s Obligations	23
	6.3	Conditions Precedent to Seller’s Obligations	24
	6.4	Frustration of Closing Conditions	24
Article 7		Additional Covenants	24
	7.1	Conduct of Business	24
	7.2	General Pre-Closing Covenants of Seller	25
	7.3	Transition and Integration Support	27

 

 

Raccoon APA DOCSNY1:1172777.5 12115-16 RM9/RM9

ii

 

 

TABLE OF CONTENTS

(continued)

Page

 

 

 

	7.4	Premerger Notification Under the HSR Act	27
	7.5	Filings, Consents and Satisfaction of Closing Conditions	27
	7.6	Provision of Information	27
	7.7	Change of Name	27
	7.8	Credit Support Obligations	28
	7.9	Proration	28
	7.10	Employee Matters	28
	7.11	Assumed Agreements; Support Arrangements	29
	7.12	Litigation Support	30
	7.13	Further Assurances	30
	7.14	Confidentiality	30
	7.15	Nonsolicitation	31
	7.16	Exclusivity	31
	7.17	FERC Proceedings and Audits	31
	7.18	Illinois Notice Filing	31
Article 8		Remedies for Breaches of this Agreement	31
	8.1	Survival	31
	8.2	Remedies of Buyer and Indemnification by Seller	32
	8.3	Indemnification by Buyer	32
	8.4	Procedure for Third-Party Claims	32
	8.5	Waiver of Closing Conditions	33

 

8.6

Materiality, Mitigation, Etc; Indemnification Payments as Adjustments to the Purchase Price                                                                                                                                    33

 

	8.7	Exclusive Remedy	34
Article 9		Tax Matters	34
	9.1	Preparation of Tax Returns	34
	9.2	Tax Indemnification	34
	9.3	Tax Proceedings	35
	9.4	Tax Cooperation	35
	9.5	Tax Refunds	35
	9.6	Sales and Transfer Taxes	35
	9.7	FIRPTA Certificate	35

 

 

Raccoon APA DOCSNY1:1172777.5 12115-16 RM9/RM9

iii

 

 

TABLE OF CONTENTS

(continued)

Page

 

 

 

	9.8	Purchase Price Allocation	35
Article 10		Termination	36
	10.1	Termination	36
	10.2	Effect of Termination	36
Article 11		Miscellaneous	36
	11.1	Transaction Costs	36
	11.2	Entire Agreement	36
	11.3	Amendments	36
	11.4	Assignments	36
	11.5	Binding Effect	37
	11.6	Headings	37
	11.7	Notices	37
	11.8	Severability	37
	11.9	Waivers	37
	11.10	Enforcement Costs	38
	11.11	Counterparts	38
	11.12	Governing Law; Submission to Jurisdiction	38
	11.13	Preparation of Agreement	39
	11.14	Schedule Supplements	39
	11.15	No Consequential Damages	39
	11.16	Confidentiality	39
	11.17	Publicity	39
	11.18	No Third-Party Beneficiaries	40
	11.19	Time of Essence	40

 

Raccoon APA DOCSNY1:1172777.5 12115-16 RM9/RM9

iv

 

 

 

 

EXHIBITS

Exhibit A – Form of Aquila Guaranty

Exhibit B – Form of Special Warranty Deed

Exhibit C – Form of Assignment for Non-Fee Real Property Interests

Exhibit D – Form of Bill of Sale

Exhibit E – Form of Assignment and Assumption Agreement

Exhibit F – Form of Opinion of in-house counsel to Seller

Exhibit G – Proforma Title Policies

Exhibit H – Form of Opinion of in-house counsel to Buyer

 

SCHEDULES

Schedule 1.1(a)

–

Knowledge with respect to Seller

Schedule 1.1(b)

–

Knowledge with respect to Buyer

Schedule 2.1(h)

–

Assumed Agreements

Schedule 2.2(o)

–

Excluded Software

Schedule 4.4

–

Violations and Defaults

Schedule 4.6

–

Seller Governmental Consents

Schedule 4.7

–

Seller Additional Consents

Schedule 4.8(a)

–

Litigation as to Transactions

Schedule 4.8(b)

–

Litigation as to Purchased Assets or Project

Schedule 4.12

–

Material Transactions; Changes

Schedule 4.13

–

Undisclosed Liabilities

Schedule 4.14(a)

–

Contracts

Schedule 4.14(b)

–

Enforceability

Schedule 4.14(c)

–

Electric Energy, Capacity, Ancillary Services, Emissions Credits

Agreements

Schedule 4.17(a)

–

Employees

Schedule 4.17(b)

–

Employee Benefits

Schedule 4.17(c)

–

Employment, Consulting Contracts

Schedule 4.17(d)

–

Employee Benefit Plan Funding

Schedule 4.17(e)

–

Employee Benefit Plan Events

Schedule 4.17(f)

–

Employee Benefit Plan – Effect of Transactions

Schedule 4.18

–

Governmental Approvals

Schedule 4.19

–

Software

Schedule 4.20(b)

–

Violations of Environmental Laws

Schedule 4.20(c)

–

Hazardous Substances

Schedule 4.20(e)

–

Environmental Governmental Approvals

Schedule 4.21

–

Affiliate Transactions

Schedule 4.22

–

Insurance Policies

Schedule 4.23

–

Ownership of Purchased Assets; Permitted Encumbrances

Schedule 4.24

–

Real Property Interests

Schedule 4.25

–

Stand-Alone Operations

Schedule 5.5

–

Buyer Governmental Consents

Schedule 5.6

–

Buyer Additional Consents

Schedule 7.2.3

–

Crossroads Capital Spare Parts

Schedule 7.8

–

Credit Support Obligations

 

 

v

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

ASSET PURCHASE AND SALE AGREEMENT

THIS ASSET PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of December 16, 2005, is entered into by and between MEP Flora Power, LLC, a Delaware limited liability company (“Seller”), on one hand, and Union Electric Company d/b/a AmerenUE, a Missouri corporation (“Buyer”), on the other hand.

RECITALS

A.      Seller is the owner of an operating 340 nameplate MW simple-cycle, natural gas-fired “peaking” power generation facility located in Clay County, Illinois (the “Project”).

B.       At the closing described below, upon the satisfaction of the conditions set forth herein, and pursuant to the terms hereunder, Buyer will purchase, acquire, accept and assume, and the Seller and certain of its Affiliates will sell and assign, certain assets and liabilities associated with the Project, as more fully set forth herein.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth below, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE 1Definitions

1.1   Defined Terms . Unless the context requires otherwise, capitalized terms used in this Agreement shall have the meanings specified in this Section 1.1.

“Acquisition Proposal” has the meaning set forth in Section 7.16.

“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934.

“Agreement” has the meaning set forth in the preamble hereto.

“Allocation” has the meaning set forth in Section 9.8(a).

“Aquila” means Aquila, Inc., a Delaware corporation and the indirect parent company of Seller.

“Aquila Guaranty” means the guaranty to be executed and delivered by Aquila in the form of
Exhibit A .

“Aquila Pension Plans” means the pension plans, as defined in ERISA Section 3(2), maintained by Aquila on the Closing Date or in connection with which Aquila or the Seller Parties otherwise have any liability.

“Aquila Savings Plans” means the pension plans, as defined in ERISA Section 3(2), maintained by Aquila on the Closing Date or in connection with which Aquila or the Seller Parties otherwise have any liability and that are not subject to Title IV of ERISA.

“Aquila Welfare Plans” means the welfare plans maintained by Aquila on the Closing Date, or under which Employees otherwise benefit by reason of their employment with Aquila or the Seller Parties, or in connection with the Project.

 

 

1

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

“Assumed Agreements” means the agreements set forth on Schedule 2.1(h), each of which has been entered into by one or more Seller Parties in connection with the ownership, operation and maintenance of the Project and the obligations of which are to be assumed by Buyer or an Affiliate of Buyer in connection with the transactions contemplated by this Agreement.

“Assumed Liabilities” has the meaning set forth in Section 2.3.

“Burdened Property” has the meaning set forth in Section 4.24.

“Buyer” has the meaning set forth in the preamble hereto.

“Buyer Additional Consents” has the meaning set forth in Section 5.6.

“Buyer Governmental Consents” has the meaning set forth in Section 5.5.

“Buyer Indemnified Party” means Buyer and all of its Affiliates, and each of their respective shareholders, partners, members, investors, directors, officers, employees and agents.

“Buyer Required Consents” means, collectively, the Buyer Governmental Consents and Buyer Additional Consents.

“Cap Amount” means an amount equal to twenty-five percent (25%) of the Purchase Price.

“Closing” has the meaning set forth in Section 3.1.

“Closing Date” has the meaning set forth in Section 3.1.

“COBRA” has the meaning set forth in Section 7.10(f).

“Code” means the United States Internal Revenue Code of 1986, and any successor statute.

“Confidentiality Agreement” means the Confidentiality Agreement dated as of April 18, 2005, between Aquila and Ameren Corporation.

“Contracts” has the meaning set forth in Section 4.14.

“Credit Support Obligations” has the meaning set forth in Section 7.8.

“Crossroads Spare Parts” has the meaning set forth in Section 7.2.3.

“Deeds” has the meaning set forth in Section 3.2.1(a)(i).

“DOJ” means the United States Department of Justice, Antitrust Division.

“Dollars” or “$” means the lawful currency of the United States of America.

“Emissions Credits” means credits, allowances or other similar measures, in units established by applicable Governmental Authorities, resulting from the reduction of pollutants or substances (including volatile organic compounds, greenhouse gasses, NOx and SOx) or changes in technology from or related to the Project, that have been issued by the applicable Governmental Authority.

 

 

2

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

“Employees” has the meaning set forth in Section 4.17(a).

“Employee Benefit Plan” means each “employee benefit plan” as defined in Section 3(3) of ERISA, each stock option, stock purchase, stock ownership, deferred compensation, severance, performance, bonus, incentive, vacation or holiday pay plan, policy, understanding or arrangement and each other employee benefit plan or arrangement (including fringe benefit plans or arrangements) that is maintained on the date hereof or otherwise contributed to by Aquila or the Seller Parties for the benefit of any Employees or under which Employees otherwise benefit by reason of their employment with Aquila or the Seller Parties, or, prior to the Closing, their connection with the Project.

“Encumbrance” means any mortgage, deed of trust, claim, charge, easement, encumbrance, lease, covenant, security interest, lien (statutory or otherwise), option, pledge, charge, condition, covenant, easement and any right of first refusal or first offer or other rights of others or restrictions (whether on voting, sale, transfer disposition or otherwise), whether imposed by agreement, understanding, law, equity or otherwise, or other encumbrance or title defect of any kind.

“Environmental Laws” means any Governmental Rule relating to pollution or protection of human health, human safety or the environment (including ambient air, surface water, groundwater, wetlands, land surface and subsurface strata), including Governmental Rules relating to emissions, discharges, releases or threatened releases of hazardous materials or substances or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of hazardous materials or substances, including the Comprehensive Environmental Response, Compensation, and Liability Act.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“Excluded Assets” has the meaning set forth in Section 2.2.

“Excluded Environmental Matters” means (i) any known or unknown violations of Environmental Law by Seller occurring at any time prior to the Closing Date in connection with any of the Purchased Assets or the Project, or (ii) the known or unknown presence or Release of any Hazardous Substances at any time prior to the Closing Date to soil, sediment, surface water, groundwater or air at any Purchased Asset, including any migration of such Hazardous Substances from the Project or any Purchased Asset to any off-site location, or (iii) any Hazardous Substances generated by any of the Purchased Assets or the Project prior to the Closing Date and sent to an offsite location for treatment, storage, disposal or recycling prior to the Closing Date.

“Excluded Liabilities” has the meaning set forth in Section 2.4.

“Excluded Software” has the meaning set forth in Section 2.2(o).

“FERC” means the Federal Energy Regulatory Commission.

“FIRPTA” means the Foreign Investment in Real Property Tax Act.

“Final Order” shall mean any order of a Governmental Authority which has not been reversed, stayed, enjoined, set aside, annulled or suspended, with respect to which any waiting period prescribed by law before the transactions contemplated thereby may be consummated has expired (but without the requirement for the expiration of any applicable rehearing or appeal period), and as to which all conditions to the consummation of such transactions prescribed by law have been satisfied or could be

 

3

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

satisfied in the future without causing a material adverse effect in the business, condition (financial or otherwise), properties, assets or results of operation of Buyer or the Purchased Assets.

“FTC” means the Federal Trade Commission.

“Generators” means four (4) GE PG7121(EA) simple cycle gas fired electric combustion turbines each having a nameplate capacity of 85 MW.

“Governmental Approval” means any authorization, consent, approval, waiver, exception, variance, order, franchise, permit (including the Permits hereunder), agreement, license or exemption issued by, or entered into with, any Governmental Authority, including any Governmental Filing that constitutes an authorization required in order to consummate the Closing or in connection with the ownership, operation and maintenance of the Purchased Assets or the Project.

“Governmental Authority” means any federal, state, county, municipal or local government or regulatory or supervisory department, body, political subdivision, commission, agency, instrumentality, ministry, court, judicial or administrative body, taxing authority, or other authority thereof (including any corporation or other entity owned or controlled by any of the foregoing) having jurisdiction over the matter or Person in question.

“Governmental Filing” means any filings, reports, registrations, notices, applications, certifications or other submissions to or with any Governmental Authority.

“Governmental Rule” means, with respect to any Person, any applicable law, statute, treaty, rule, regulation, permit conditions, ordinance, order, code, judgment, decree, injunction or writ issued by any Governmental Authority.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“Hazardous Substances” means any chemical, material or substance that is listed or regulated under applicable Environmental Laws as a “hazardous substances,” “hazardous waste,” “extremely hazardous substances,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” as any of such terms is currently defined or used in any applicable Environmental Law, or is otherwise listed or regulated under applicable Environmental Laws because it poses a hazard to human health or the environment.

“Income Taxes” means any Taxes imposed on or determined by reference to net income, together with any interest or penalty, addition to tax or additional amount imposed by any Taxing Authority.

“Indemnified Party” has the meaning set forth in Section 8.4.

“Indemnifying Party” has the meaning set forth in Section 8.4.

“Inventory” means those items which are described in Sections 2.1(d) and 2.1(e) and set forth on the corresponding sections of Schedule 4.23.

“Knowledge” means the knowledge of the following individuals, including actual knowledge and knowledge or information that would be discovered by a reasonable investigation (except that such a reasonable investigation standard will not require any external investigation in relation to statements regarding Seller’s knowledge as to the actions or omissions of third parties): (a) with respect to Seller,

 

4

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

those persons listed on Schedule 1.1(a), and (b) with respect to Buyer, those persons listed on Schedule 1.1(b).

“Losses” means all damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, taxes, losses, and expenses and fees, including court costs and reasonable attorneys’ fees and expenses.

“Material Adverse Effect” means any fact, event, change or effect that is (or would reasonably be expected to be) materially adverse to the Project or the Purchased Assets taken as a whole, or the ability of any Seller Party to consummate the transactions contemplated by this Agreement in a timely manner, except any material adverse effect (a) cured, including by payment of money or credit to the Purchase Price, before the Closing Date, or (b) resulting from an Excluded Matter.  For purposes of this definition, “Excluded Matter” means one or more of the following: (i) any change in the national, regional, or local markets or industries in which Seller operates, (ii) any Governmental Rule, other than any Governmental Rule adopted or issued specifically with respect to the Project or the transactions contemplated by this Agreement, (iii) any change in accounting standards, principles, or interpretations, (iv) any change in the national, regional, or local economic, regulatory, or political conditions, including prevailing interest rates, (v) any matter disclosed in this Agreement, any Schedule or Exhibit hereto, or any other certificate or instrument delivered to Buyer under or in accordance herewith, (vi) any change in the market price of commodities or publicly traded securities, or (vii) any action permitted under this Agreement, all except to the extent that any of the facts, events, changes or effects described in subsections (i) – (vii) above disproportionately and materially impact the Project or the Purchased Assets, taken as a whole, in relation to other projects and assets similar to the Project and the Purchased Assets, taken as a whole.

“MISO” means the Midwest Independent Transmission System Operator, Inc.

“MW” means megawatt.

“Non-Income Tax Returns” means Tax Returns relating to Non-Income Taxes.

“Non-Income Taxes” means Taxes other than Income Taxes.

“Operating Contractor” means an independent corporation or other entity designated by Buyer to operate and maintain the Project.

“Organizational Documents” means, with respect to any corporation, its articles or certificate of incorporation and by-laws, and with respect to any limited liability company, its articles or certificate of organization or formation and its operating agreement or limited liability company agreement or documents of similar substance.

“Permit” means any authorization, consent, approval, zoning ordinance (including zoning amendment), site plan approval, subdivision approval, agreement waiver, exception, variance, order, franchise, permit, license or exemption issued by any Governmental Authority in connection with the ownership, operation and maintenance of the Purchased Assets or the Project, including any Governmental Filing that constitutes an authorization required in connection with the ownership, operation and maintenance of the Purchased Assets or the Project.

“Permitted Encumbrances” means (i) those Encumbrances set forth on Schedule 4.23, (ii) Encumbrances securing or created by or in respect of any of the Assumed Liabilities; (iii) statutory liens for current Taxes or assessments not yet due or delinquent or the validity or amount of which is being contested in good faith by appropriate proceedings, none of which contested matters is material;

 

5

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

(iv) mechanics’, carriers’, workers’, repairers’, landlords’, and other similar liens arising or incurred in the ordinary course of business relating to obligations as to which there is no default on the part of Seller or the validity or amount of which is being contested in good faith by appropriate proceedings, none of which contested matters is material, or pledges, deposits, or other liens securing the performance of bids, trade contracts, leases, or statutory obligations (including workers’ compensation, unemployment insurance, or other social security legislation); (v) usual and customary zoning, entitlement, restriction, and other land use and environmental regulations by Governmental Authorities which do not materially interfere with the present use or normal operation of the Project or the Purchased Assets; (vi) any Encumbrances set forth in any state, local, or municipal franchise or governing ordinance under which any portion of the Project or the Purchased Assets is conducted; (vii) all rights of condemnation, eminent domain, or other similar rights of any Governmental Authority; and (viii) such other Encumbrances (including requirements for consent or notice in respect of assignment of any rights) which do not materially interfere with Seller’s current use of the Project or the Purchased Assets, and do not secure indebtedness or the payment of the deferred purchase price of property (except for Assumed Liabilities).

“Person” means any individual, corporation, partnership, trust, joint venture, unincorporated association, limited liability company, Governmental Authority or other entity.

“Post-Closing Tax Period” means any taxable period beginning after the Closing Date.

“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date.

“Project” has the meaning set forth in the recitals to this Agreement.

“Proposed Allocation” has the meaning set forth in Section 9.8(a).

“Purchase Price” has the meaning set forth in Section 2.5.1.

“Purchased Assets” has the meaning set forth in Section 2.1.

“Real Property Interests” has the meaning set forth in Section 2.1(a).

“Related Agreements” means, collectively, (i) the Aquila Guaranty and (ii) any other documents, instruments and agreements provided for herein.

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.

“Seller” has the meaning set forth in the preamble hereto.

“Seller Indemnified Party” means Seller and all of its Affiliates, and each of their shareholders, partners, members, investors, directors, officers, employees and agents.

“Seller Parties” means Seller and its Affiliates.

“Seller Additional Consents” has the meaning set forth in Section 4.7.

“Seller Governmental Consents” has the meaning set forth in Section 4.6.

“Seller Required Consents” means, collectively, the Seller Governmental Consents and the Seller Additional Consents.

 

 

6

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

“Software” means computer software programs and software systems, including all databases, compilations, tool sets, compilers, higher level or “proprietary” languages, related documentation and materials, whether in source code, object code or human readable form.

“Straddle Period” means any taxable period that begins on or before and ends after the Closing Date.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (ii) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons owns a majority ownership in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be or control any managing director or general partner of such business entity (other than a corporation).

“Supplemental Triggering Event” has the meaning set forth in Section 11.14(a).

“Tax” means (a) any federal, state, local or foreign income, gross receipts, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value-added, alternative minimum, estimated or any other tax of any kind whatsoever, including any interest, penalties and additions to tax thereto, and (b) any liability with respect to payments of a type described in clause (a) above or as a result of being a member of an affiliated, consolidated, combined or unitary group, or as a result of any obligation under any Tax sharing arrangement, Tax indemnity agreement or arrangement or similar agreement or arrangement.

“Tax Proceeding” means any audit, examination, judicial, or administrative proceeding related to Taxes.

“Tax Return” means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto.

“Taxing Authority” means any Governmental Authority exercising any authority to impose, regulate or administer the imposition of Taxes.

“Threshold Amount” means an amount equal to one percent (1%) of the Purchase Price.

“Title Insurance Policies” has the meaning set forth in Section 6.2.7.

“Transfer Taxes” means any and all transfer, registration, stamp, value added, documentary, sales, excise, use and similar Taxes (including all applicable real estate transfer or gains Taxes) any penalties interest and additions to tax, and fees.

1.2   Rules of Interpretation . For purposes of this Agreement, except where otherwise expressly provided or unless the context otherwise necessarily requires:

 

 

7

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

1.2.1references to this Agreement shall include a reference to all appendices, annexes, schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time;

1.2.2the words “herein,” “hereof,” “hereunder” and “herewith” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement;

1.2.3the terms “include,” “includes” and “including” shall be construed to mean “including, without limitation” or “including but not limited to” and shall not be construed to mean that the examples given are an exclusive list of the topics covered;

1.2.4references to “Articles,” “Sections,” “Schedules” or “Exhibits” (if any) shall be to articles, sections, schedules or exhibits (if any) of this Agreement;

1.2.5references to a given agreement, instrument or other document shall be a reference to that agreement, instrument or other document as modified, amended, supplemented and restated through the date as of which such reference is made;

1.2.6

references to a Person include its successors and permitted assigns;

1.2.7the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa; and

1.2.8reference to a given Governmental Rule is a reference to that Governmental Rule and the rules and regulations adopted or promulgated thereunder, in each case, as amended, modified, supplemented or restated as of the date on which the reference is made.

ARTICLE 2Sale and Purchase

2.1   Purchased Assets . Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller will sell, transfer, assign, convey and deliver to Buyer, and Buyer agrees to purchase and acquire from Seller and to pay Seller for, free and clear of all Encumbrances, except the Permitted Encumbrances, all of Seller’s right, title and interest in, to and under all assets and properties of every kind and description owned, leased or used primarily in and for the operation of the Project, wherever located, real, personal or mixed, tangible or intangible, other than the Excluded Assets (herein collectively called the “Purchased Assets”), including all right, title and interest of Seller in, to and/or under the following:

(a)      the real property and the real property interests listed on Schedule 4.23, in each case together with all buildings, structures, improvements and fixtures thereon (excluding, however, the Generators, which the parties intend to be transferred hereunder as personal property pursuant to Section 2.1(b)) and all rights, title and interests in and to the rights, privileges, easements, minerals, oil, gas and other hydrocarbon substances on and under such real property, all development rights, air rights, water, water rights, riparian rights, and water stock relating to such real property, any rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of such real property, and all roads and alleys adjoining or servicing such real property and other appurtenances thereto (collectively the matters described in this Section 2.1(a) are called the “Real Property Interests”);

(b)

the Generators;

 

 

8

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

(c)      all other tangible personal property and interests therein, including all machinery, equipment, furniture, furnishings and vehicles, and all warranties against manufacturers or vendors relating thereto, to the extent such warranties are transferable or assignable;

(d)      all spare, wear, replacement, consumable or other similar parts or tangible property held for use in connection with the Generators and the machinery, equipment, furniture, furnishings, vehicles and other tangible personal property described in Section 2.1(c), and all warranties against manufacturers or vendors relating thereto, to the extent such warranties are transferable or assignable;

(e)

all raw materials, supplies and other materials;

(f)      all Emissions Credits, including any Emissions Credits allocated to EPA accounts 0554170CTZ01, 0554170CTZ02, 0554170CTZ03 and 0554170CTZ04, all under the name “Raccoon Creek Energy Center”

(g)      all Governmental Approvals, to the extent such Governmental Approvals can be transferred or assigned to Buyer;

	(h)	all of the Assumed Agreements (all of which are set forth on Schedule 2.1(h));
	(i)	all Software other than the Excluded Software;

(j)       all rights, defenses, claims or causes of action against third parties relating to the Purchased Assets;

(k)      all surveys, books and records (including all data and other information stored on discs, tapes or other media) related to the Purchased Assets, the Assumed Liabilities and the ownership, operation or maintenance of the Project, except for records which by law Seller is required to retain in its possession; provided that Buyer may to the extent permitted by law retain copies of such surveys, books and records; and

(l)       all telephone, telex and telephone facsimile numbers and other directory listings (other than internal directory listings of Seller and its Affiliates).

2.2   Excluded Assets . Notwithstanding the provisions of Section 2.1, the Purchased Assets shall not include the following (herein referred to as the “Excluded Assets”):

	(a)	any property interests or rights not owned by Seller;
	(b)	the assets of any Employee Benefit Plan covering the Employees;
	(c)	the Crossroads Spare Parts;

(d)      Seller’s rights, defenses, claims or causes of action against third parties relating to any Excluded Liabilities or Excluded Assets;

(e)      the names “Aquila” and “MEP, and all derivatives thereof, or any related or similar trade names, trademarks, service marks or logos to the extent the same incorporate the names “Aquila” or “MEP” or any derivative or variation thereof;

 

 

9

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

(f)      all corporate minute books and stock transfer books and the corporate seals of Seller;

(g)      all surveys, books and records which by law Seller is required to retain in its possession, subject to Section 2.1(k);

(h)      any assets that have been disposed of in the ordinary course of business consistent with past practice or otherwise in compliance with this Agreement prior to the Closing;

(i)

any equity securities owned by Seller;

(j)       all cash and cash equivalents, bank deposits, and accounts receivable and all other receivables (including income, sales, payroll or other tax receivables) arising or relating to the periods prior to the Closing, including amounts owed (or reportedly owed) to Seller by MISO;

(k)      the blanket market-based rate tariff of Seller on file with FERC, designated as MEP Flora Power, LLC FERC Electric Tariff Original Volume No. 1;

(l)       the Exempt Wholesale Generator status of Seller, as determined by FERC in Docket No. EG01-13-000;

(m)

assets used for performance of the central or shared services by the Seller Parties;

(n)      all insurance policies of the Seller Parties and rights thereunder, including any such policies and rights in respect of the Purchased Assets or the Project;

(o)

the Software listed on Schedule 2.2(o) (the “Excluded Software”); and

(p)      all other assets (including agreements and contracts) of the Seller Parties not owned, leased or used primarily in the operation of the Project.

2.3   Assumed Liabilities . On the Closing Date, Buyer shall assume and agree to discharge (i) subject to Section 9.1(c), all property Taxes payable after the Closing Date as provided for in Article 9, (ii) any obligations under the Assumed Agreements which arise on and after the Closing Date, and (iii) any payment obligations related to transmission service requests arising prior to, on and after the Closing Date under any Assumed Agreements (including MISO transmission reservations evidenced by OASIS numbers 75770406, 75770407 and 75770408). All of the liabilities and obligations to be assumed by Buyer hereunder (excluding any Excluded Liabilities) are referred to herein as the “Assumed Liabilities.”

2.4   Excluded Liabilities . Buyer shall not assume or be obligated to pay, perform, or otherwise discharge any liabilities or obligations other than the Assumed Liabilities (whether accrued, absolute, fixed or unfixed, known or unknown, asserted or unasserted, contingent, by guaranty, surety or assumption or otherwise) (the “Excluded Liabilities”). The Excluded Liabilities include liabilities and obligations relating to the following matters:

(a)

any and all debt of Seller and all related liabilities or obligations;

(b)      any liability or obligation in respect of Income Taxes, franchise Taxes or other Taxes based on income, revenue or gross receipts, all liabilities for or relating to other Taxes to the extent the other Taxes arise from or relate to any Pre-Closing Tax Period;

 

 

10

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

(c)      any payables and other liabilities or obligations of the Seller Parties to any of their Affiliates;

(d)      any costs and expenses payable to third parties incurred by Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein;

	(e)	any liabilities or obligations to the extent they relate to any Excluded Assets;
	(f)	any Excluded Environmental Matters;

(g)      any broker’s, finder’s, investment banker’s or similar fees or commissions in connection with the transactions contemplated by this Agreement and based on agreements or arrangements made by or on behalf of any of the Seller Parties; and

(h)      any liabilities or obligations under any Employee Benefit Plan or compensation arrangement or otherwise relating to or arising out of the employment of any individual by Seller.

Notwithstanding anything to the contrary in Section 2.3, none of the Excluded Liabilities specifically described above shall be Assumed Liabilities for purposes of this Agreement.

2.5

Purchase Price; Payment; Proration .

2.5.1 Purchase Price . The aggregate purchase price to be paid by Buyer for the purchase of the Purchased Assets shall be Seventy Million Dollars ($70,000,000) (the “Purchase Price”).

2.5.2 Payment of Purchase Price . The Purchase Price will be paid to Seller by Buyer at Closing, in cash by wire transfer of immediately available funds to a bank account designated by Seller in writing to Buyer at least two business days prior to the Closing.

2.5.3 Proration . Each of Seller and Buyer agree to cooperate with the other party to promptly return any amounts received by it to which it is not entitled pursuant to the terms of this Agreement.

ARTICLE 3Closing Date and Actions at Closing

3.1   Closing Date . Upon and subject to the satisfaction of the conditions contained in Article 6 of this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) shall be held at the offices of Armstrong Teasdale LLP in St. Louis, Missouri, at 10:00 A.M., local time on the third business day following the satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the parties will take at the Closing itself), but not before February 8, 2006, or such other date, time and place as the parties may mutually agree (the “Closing Date”). The Closing shall not be deemed to have occurred until all actions necessary to complete the Closing have occurred, and then the Closing shall be effective (with retroactive effect) for all purposes as of 12:01 a.m. on the Closing Date.

3.2

Actions to be Taken at Closing . At the Closing, each of the following shall occur:

3.2.1 Deliveries by Seller to Buyer . Seller shall deliver (or cause to be delivered) the following documents to Buyer, duly executed (as applicable):

 

 

11

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

(a)

The following documents relating to Real Property Interests:

(i)       special warranty deeds (the “Deeds”) as to the Real Property Interests owned in fee by Seller, in the form attached hereto as Exhibit B ;

(ii)      assignments of all easement rights, and other customary conveyancing documents as to the Real Property Interests other than those owned in fee by Seller, in the form attached hereto as Exhibit C ; and

(iii)     affidavits of Seller as to title and other customary documents reasonably required by a reputable title company to obtain the Title Insurance Policies;

(b)      bills of sale and assignments for any Purchased Assets other than the Real Property Interests, including the Generators, in the form attached hereto as Exhibit D ;

(c)

the Aquila Guaranty;

(d)      a certificate of good standing issued by the secretary of state of the applicable state of organization for Seller and each of the Seller Parties that is a party to a Related Agreement, dated not more than five (5) days prior to the Closing Date;

	(e)	each of the certificates described in Sections 6.2.1 and 6.2.2;
	(f)	the opinion of counsel described in Section 6.2.4;

(g)      evidence reasonably satisfactory to Buyer that Seller has obtained all of the Seller Required Consents;

(h)      to the extent the Project has been included by any of the Seller Parties on a list of designated resources for purposes of Module E of MISO’s Open Access Transmission and Energy Markets Tariff and other directives of MISO, evidence reasonably satisfactory to Buyer that the Project has been removed from such list;

(i)       a certificate of Seller and each of the Seller Parties that is a party to a Related Agreement certifying as to (i) such party’s Organizational Documents, (ii) the incumbency of such party’s officers, and (iii) resolutions of such party’s board of directors (or similar governing body), authorizing the transactions described herein;

(j)

the FIRPTA certificate described in Section 9.7;

(k)      transfer tax declarations as to the Deeds in customary form required by state and local law, executed by Seller; and

(l)

such other documents as Buyer may reasonably request.

3.2.2 Deliveries by Buyer to Seller . Buyer shall deliver the following documents to Seller, duly executed (as applicable):

(a)

the Purchase Price;

 

 

12

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

(b)      one or more instruments of assumption of the Assumed Liabilities in the form attached hereto as Exhibit E ;

(c)      a certificate of good standing issued by the secretary of state of the applicable state of organization of Buyer, dated not more than five days prior to the Closing Date;

	(d)	each of the certificates described in Sections 6.3.1 and 6.3.2;
	(e)	the opinion of counsel described in Section 6.3.4;

(f)      a certificate of Buyer certifying as to (i) its Organizational Documents, (ii) the incumbency of its officers, and (iii) resolutions of its board of directors (or similar governing body) authorizing the transactions described herein; and

(g)

such other documents as Seller may reasonably request.

ARTICLE 4Representations and Warranties Relating to Seller

Seller hereby represents and warrants to Buyer that the statements contained in this Article 4 are correct and complete as of the date hereof, and will be correct and complete as of the Closing Date, except as otherwise disclosed on the disclosure schedules referenced below. The fact that any item of information is contained in a disclosure schedule shall not be construed as an admission of liability under applicable law, or to mean that such information is material. Unless otherwise indicated, such information shall not be used as the basis for interpreting the term “material,” “materially” or “Material Adverse Effect,” or any similar qualification in this Agreement.

4.1   Due Organization and Qualification . Seller is a limited liability company duly formed, validly existing and in good standing under the laws of Delaware and is duly qualified to do business and in good standing as limited liability company in Illinois.

4.2

Subsidiaries . Seller has no Subsidiaries.

4.3   Power and Authority . Seller has full limited liability company power and authority to carry on its businesses as now conducted, to own or hold under lease its properties, and to enter into and perform its obligations under each Contract to which it is a party. Seller has authorized the execution, delivery and performance of this Agreement and such other documents, instruments and agreements to which it is a party in connection with the transactions contemplated by this Agreement.

4.4   No Violations . Except as set forth on Schedule 4.4 and subject to Seller obtaining the Seller Required Consents, neither the execution nor the delivery of this Agreement or the Related Agreements, and the consummation of the transactions contemplated hereby and thereby, by Seller, will (a) violate any Governmental Rule to which Seller or its assets is subject, except as would not result in a Material Adverse Effect, (b) violate or conflict with Seller’s Organizational Documents, or (c) except as would not result in a Material Adverse Effect or prevent Seller from consummating the transactions contemplated hereby, violate, conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which Seller is a party or by which any its assets is subject.

4.5   Valid, Binding and Enforceable Obligation . Each of this Agreement and any Related Agreements to which Seller is a party has been duly and validly executed by Seller, and, assuming due

 

13

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

authorization, execution and delivery of this Agreement and the Related Agreements by Buyer and its Affiliates, as applicable, constitutes a valid, binding, and enforceable obligation, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally and by general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law.

4.6   Governmental Consents . Except for the Governmental Approvals set forth on Schedule 4.6 (collectively, the “Seller Governmental Consents”), no Governmental Approval is necessary in connection with the execution and delivery by Seller of this Agreement and the Related Agreements to which it is a party, or the consummation of the transactions by Seller contemplated hereby and thereby, other than where the failure to obtain a required Governmental Approval would not have a Material Adverse Effect.

4.7   Additional Consents . Except for the consents, notices and other items set forth on Schedule 4.7 (collectively, the “Seller Additional Consents”), no filing, registration, qualification, notice, consent, approval or authorization to, with or from any Person (excluding Governmental Authorities) is necessary in connection with the execution and delivery of this Agreement and the Related Agreements by Seller, or the consummation by Seller of the transactions contemplated hereby and thereby.

4.8

No Litigation .

(a)      Except as set forth on Schedule 4.8(a) Seller has not received any written notice from a third Person of any pending action or investigation against Seller or request for information from any Governmental Authority or third Person about Seller in connection therewith, and Seller has no Knowledge of any notice from a third Person of any threatened action or investigation against Seller or request for information by any Governmental Authority or third Person about Seller in connection therewith, which, in either case, (a) could result, or has resulted in the institution of legal proceedings to prohibit or restrain the performance of this Agreement or any of the Related Agreements or the consummation of the transactions contemplated hereby or thereby or (b) could result, or has resulted, in a claim for damages as a result of this Agreement or any of the Related Agreements, or the consummation of the transactions contemplated hereby or thereby.

(b)      Except as set forth on Schedule 4.8(b) and except as would not have a Material Adverse Effect, since December 31, 2004, (i) Seller has not received any written notice from a third Person of any pending action or investigation against Seller or request for information from any Governmental Authority or third Person about Seller in connection therewith, and (ii) Seller has no Knowledge of any notice from a third Person of any threatened action or investigation against Seller or request for information by any Governmental Authority or third Person about Seller in connection therewith, which, in either case, relates to the Purchased Assets or the business or operations of the Project or Seller.

4.9   Brokers’ Fees . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission for which Buyer could become liable or obligated in connection with the transactions contemplated by this Agreement.

4.10

Bankruptcy

(a)      No bankruptcy, reorganization or arrangement proceedings are pending against, being contemplated by or, to Seller’s Knowledge are threatened against Seller.

 

 

14

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

(b)      Seller is not insolvent nor will it be rendered insolvent as a result of the consummation of the transactions contemplated to occur at the Closing.

4.11Good Faith . To Seller’s Knowledge, the negotiations regarding the transactions contemplated by this Agreement have been conducted in good faith and at arms length.

4.12Absence of Certain Changes . Except as set forth on Schedule 4.12, since December 31, 2004, Seller has not (a) conducted any business other than in the ordinary course consistent with past practice, (b) suffered any damage, destruction or other casualty loss with respect to any of the Purchased Assets in excess of $50,000, or (c) suffered any Material Adverse Effect.

4.13No Undisclosed Liabilities . To Seller’s Knowledge, except for (i) matters set forth on Schedule 4.13, (ii) matters arising under the Assumed Agreements, and (iii) liabilities incurred in the ordinary course of business consistent with past practice (none of which relate to any breach of contract, tort, infringement, product liability, environmental matter or any alleged violation of law) there are no liabilities or obligations of Seller with respect to the Purchased Assets or the Project of any nature (whether accrued, absolute, fixed or unfixed, known or unknown, asserted or unasserted, contingent, by guaranty, surety or assumption or otherwise).

4.14

Contracts .

(a)      Schedule 4.14(a) sets forth a list of each agreement, contract, instrument, license and franchise to which any Seller Party is a party and which relates to the Project (other than any agreement, contract, instrument, license or franchise which has been terminated or under which the Seller Parties have no remaining rights or obligations), including any agreement, contract, instrument, license and franchise which relates to the ownership, operation or maintenance of the Project or the sale of electric energy, capacity, ancillary services or Emissions Credits from or relating to the Project or the interconnection of the Project to any transmission or distribution system (collectively, to the extent material, the “Contracts”). A true, correct and complete copy of the current form of each Contract has been made available to Buyer. For purposes of this Section 4.14(a), “material” refers to any agreement, contract, instrument, license and franchise involving annual consideration in excess of $50,000 and cannot be terminated without penalty or premium upon written notice (not to exceed 90 days written notice).

(b)      The Seller Parties have performed in all material respects all obligations required to be performed by them under each Contract, as the case may be, and have observed all terms required to be observed by it under such Contract. To Seller’s, Knowledge, except as set forth on Schedule 4.14(b), each Contract is a valid and binding agreement, is in full force and effect and is enforceable by the Seller Party that is a party thereto, against each other party thereto in accordance with its terms. To Seller’s Knowledge, no other party to a Contract is in default or breach in any material respect of any such Contract. Seller has not received any written notice of cancellation or threatened cancellation relating to a Contract, that could reasonably be expected to have a Material Adverse Effect.

(c)      Except as permitted by this Agreement or as set forth on Schedule 4.14(c), neither Seller nor any Person acting on its behalf (including any Person acting as an agent or designee for any of the Seller Parties) has entered into any agreement, contract, instrument, license or franchise which sells, assigns or otherwise transfers, or purports to sell, assign or otherwise transfer electric energy, capacity, ancillary services or Emissions Credits from or relating to the Project (other than any such agreement, contract, instrument, license or franchise which has been terminated or which does not sell, assign or otherwise transfer, or purport to sell, assign or otherwise transfer, electric energy, capacity, ancillary services or Emissions Credits from or relating to the Project after the Closing Date).

 

 

15

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

 

4.15

Tax Matters .

(a)      All Tax Returns required to be filed with respect to Seller or the Purchased Assets have been timely completed and filed and are true, correct and complete in all material respects, and any Taxes in respect of the periods (or portions thereof) covered by such Tax Returns (whether or not shown thereon as owing), the nonpayment of which could result in an Encumbrance on a Purchased Asset, or result in Buyer or any of its Affiliates having any liability therefor, have been timely withheld or paid, as applicable.

(b)      There are no Encumbrances for Taxes upon the Purchased Assets, except for Encumbrances for Taxes not yet delinquent.

(c)      No transaction contemplated by this Agreement is subject to withholding under Section 1445 of the Code, relating to FIRPTA.

(d)      None of the Purchased Assets are (i) tax exempt use property under Section 168(h) of the Code, (ii) tax-exempt bond financed property under Section 168(g) of the Code, (iii) limited use property under Revenue Procedure 2001-28, or (iv) treated as owned by any other person under Section 168 of the Code.

(e)      Seller has withheld and paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party with respect to Seller or any Purchased Asset.

4.16Labor Matters . Seller is not party to any collective bargaining, labor or similar agreements. To Seller’s Knowledge, there are currently no union organizing activities relative to the Employees, and there have been no such activities during the past three (3) years. There is no labor strike, slow down, work stoppage, or lock-out actually pending or, to Seller’s Knowledge, threatened with respect to Seller, any Purchased Asset or the Project. Seller is in compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, and there is no unfair labor practice charge or complaint against Seller or involving the Purchased Assets pending or, to Seller’s Knowledge, threatened before the National Labor Relations Board or any similar Governmental Authority with respect to Seller, any Purchased Asset or the Project. There is no pending or, to Seller’s Knowledge, threatened employee or governmental claim or investigation regarding employment matters, including any charges before the Equal Employment Opportunity Commission or state employment practice agency, or investigations regarding Fair Labor Standards Act compliance, or audits by the Office of Federal Contract Compliance Programs.

4.17

Employees; Employee Benefits; Employee Contracts .

(a)      Schedule 4.17(a) sets forth the name, position and current annual base salary of all current employees of Aquila whose employment relates principally to the Project (the “Employees”). Except as set forth on Schedule 4.17(a), the Employees are employees at will. As of the date hereof, no Employee has given written notice of such employee’s intent to terminate employment if the transactions contemplated by this Agreement are completed. Except as provided on Schedule 4.17(a), no Employee is absent from work on any form of leave, including medical leave, disability, leave under the Family and Medical Leave Act of 1993 or otherwise or has notified Seller of his or her intent to take such leave.

(b)      Schedule 4.17(b) lists each Employee Benefit Plan in which the Employees participate. Seller is not a direct sponsor of any Employee Benefit Plan. No Employee Benefit Plan is maintained solely for the benefit of the Employees. In addition, there are no plans or arrangements that

 

16

Raccoon APA

DOCSNY1:1172777.5

12115-16 RM9/RM9

 

 

are “pension plans” within the meaning of Section 3(2) of ERISA but are not intended to be qualified under Section 401(a) of the Code pursuant to which any Employee is entitled to benefits.

(c)      Except as set forth on Schedule 4.17(c), as of the date hereof, there are no written employment or consulting contracts with any of the Employees governing the terms and conditions of their employment (including severance benefits, termination pay, pay in lieu of notice of termination, or retention compensation), or any similar contracts regarding the terms and conditions of employment that entitle any such Employee to receive severance upon termination or that entitle any such Employee to receive compensation after or upon termination. Severance amounts payable to the Employees would, if such Employees were to be terminated by Aquila, be calculated pursuant to and in accordance with Aquila’s workforce transition plan.

(d)      Except as listed on Schedule 4.17(d), (i) all material contributions to, and payments from, any Aquila Pension Plan (or its related trust) and Aquila Savings Plan (or its related trust) that may have been required to be made in accordance with the terms of such plans or trusts have been timely made; (ii) no person has failed to make a required installment or any other payment required under Section 412 of the Code to any Aquila Pension Plan before the applicable due date; (iii) none of th