SHARE PURCHASE AGREEMENT

Exhibit 2.1

SHARE PURCHASE AGREEMENT

between

COVANTA HOLDING CORPORATION,
as Buyer

and

VEOLIA ENVIRONMENTAL SERVICES NORTH AMERICA CORP.,
as Seller

July 3, 2009

Table of Contents

Table of Contents

Table of Contents

Table of Contents

SHARE PURCHASE AGREEMENT

           AGREEMENT , dated July 3, 2009 (the “ Agreement ”), between Covanta Holding Corporation, a Delaware corporation (the “ Buyer ”), and Veolia Environmental Services North America Corp., a Delaware corporation (the “ Seller ”).

WITNESSETH

           WHEREAS , the Seller is the beneficial and record owner of 100% of the common and preferred shares (the “ Shares ”) of capital stock of Montenay International Corp., a New York corporation (the “ Company ”).

           WHEREAS , the Buyer has conducted such legal, financial, operational, accounting and tax due diligence investigation with respect to the Companies (as hereinafter defined) as the Buyer, in its discretion, has deemed appropriate.

           WHEREAS , the Seller wishes to sell to the Buyer, and the Buyer wishes to purchase from the Seller, all of the Shares upon the terms and subject to the conditions of this Agreement.

          Certain terms used in this Agreement are defined in Section 11.1.

          Accordingly, the parties agree as follows:

ARTICLE I
SALE AND PURCHASE OF SHARES; PURCHASE PRICE

          Section 1.1 Purchase Price .

          (a) Upon the terms and subject to the conditions of this Agreement, the Seller shall sell to the Buyer, and the Buyer shall purchase from the Seller, the Shares, at a price (the “ Purchase Price ”) equal to the aggregate of (i) $450,000,000 (the “ Enterprise Value ”), (ii) minus or (if negative) plus Net Financial Debt, (iii) minus or (if negative) plus the Adjustment Amount, (iv) plus, solely to the extent Closing Working Capital is greater than $11,000,000 (the “ High Range Working Capital Target ”), the amount of such excess over the High Range Working Capital Target, (v) minus, solely to the extent Closing Working Capital is less than $7,000,000 (the “ Low Range Working Capital Target ”), the amount of such deficiency below the Low Range Working Capital Target, and (vi) plus, if the conditions to the Closing set forth in Section 6.4(a) and Section 7.4(a) have not been satisfied by the date that is four Business Days prior to December 31, 2009 (which date shall be extended one day for each day after July 10, 2009 that the Seller has not submitted its notification form as required by HSR (but only for such period after notice by the Buyer that the Buyer is prepared to file its notification form required by HSR)), the Calendar Adjustment. The amount between the Low Range Working Capital Target and the High Range Working Capital Target, within which no adjustment shall be made to the Purchase Price, is defined herein as the “ Band .”

          (b) “ Net Financial Debt ” shall mean, at any particular date, long-term obligations (which with respect to the Dade Subsidiaries includes the deferred revenue related to

the Dade Subsidiaries), notes payable and current maturities of long-term obligations as of such particular date, as calculated on a basis consistent with that used in the Audited Balance Sheet, minus cash and cash equivalents (including restricted cash to the extent set forth on Schedule 1.2(b) ), as calculated on a basis consistent with that used in the Audited Balance Sheet, as of such particular date, in each case, of the Company and its consolidated Subsidiaries as illustrated on Schedule 1.2(b) , it being understood that Net Financial Debt may be a negative number.

          (c) “ Closing Working Capital ” shall mean (i) the consolidated Included Current Assets of the Company and the Subsidiaries less (ii) the consolidated Included Current Liabilities of the Company and the Subsidiaries, each as determined as of the close of business on the day immediately preceding the Closing Date and each as illustrated on Schedule 1.2(c) . “ Included Current Assets ” means accounts receivable, insurance receivables, other receivables, inventories, and prepaid expenses and other current assets (each of which will be recorded net of reserves), but excluding tax assets, prepaid insurance, any intercompany receivables, any balance related to the Montgomery Annual Base Disposal Fee Adjustment for any period and any items included within the definition of Net Financial Debt, in each case, determined on a basis consistent with that used in the Audited Balance Sheet. “ Included Current Liabilities ” means accounts payable, deferred revenue, other accrued expenses and billings in excess of costs, but excluding accrued workers compensation, any intercompany payables, any balance related to the Montgomery Annual Base Disposal Fee Adjustment for any period, any tax liabilities or tax reserves and any items included within the definition of Net Financial Debt, in each case, determined on a basis consistent with that used in the Audited Balance Sheet.

          (d) “ Calendar Adjustment ” means: (i) if the Closing occurs during January 2010, the Enterprise Value as of the Closing Date will be adjusted to increase on a daily basis up to the Closing Date at the rate of 0.5% per month for each day elapsing during the period from January 1, 2010 until January 31, 2010; (ii) if the Closing occurs during February 2010, the Enterprise Value as of the Closing Date will be adjusted to increase on a daily basis up to the Closing Date at the rate of 0.6% per month for each day elapsing during the period from February 1, 2010 until February 28, 2010 (and shall aggregate with any such increases that accumulated during January 2010); and (iii) if the Closing occurs during March 2010 or after, the Enterprise Value as of the Closing Date will be adjusted to increase on a daily basis up to the Closing Date at the rate of 0.7% per month for each day elapsing during the period from March 1, 2010 until March 31, 2010 (and shall aggregate with any such increases that accumulated during January 2010 and February 2010). No amounts will accrue as part of the Calendar Adjustment for any period after the Closing Date in the event of a subsequent Montgomery Closing and/or Dade Closing.

          Section 1.2 Payment at Closing .

          (a) At the closing provided for in Section 2.1 (the “ Closing ”), the Buyer shall pay to the Seller, in the manner set forth in Section 2.2, the Enterprise Value (i) minus or (if negative) plus Estimated Net Financial Debt as of the Closing Date, (ii) minus or (if negative) plus the Adjustment Amount, and (iii) plus, if required by Section 1.1(a)(vi), the Calendar Adjustment, in each case of clauses (i) — (iii), as set forth on a certificate to be delivered by the Seller with respect thereto (the “ Closing Financial Certificate ”) at least three Business Days prior to Closing. The Closing Financial Certificate shall set forth the estimated Net Financial Debt

(the “ Estimated Net Financial Debt ”) as of the close of business on the day immediately preceding the Closing Date, on a basis consistent with that used in the illustrative calculation of Estimated Net Financial Debt on Schedule 1.2 . “ Adjustment Amount ” shall mean the amount set forth on Schedule 11.1 .

          (b)

               (i) If Section 5.8(e) or Section 5.8(g) is applicable and the Buyer determines that it is required to deduct and withhold any amounts pursuant to Canadian Law (including any provision of provincial or local Law) the Buyer shall send a notice (a “ Withholding Notice ”) to the Seller regarding the proposed amount of such withholding and the basis therefor not later than fifteen (15) Business Days before the date any such deduction or withholding is required to be made pursuant to applicable Law. If the Seller agrees that such withholding is required, the Buyer and the Seller shall use commercially reasonable efforts to minimize any such deductions or withholdings. If the Seller determines that such withholding is not required, the Seller shall send a written objection to the Buyer not later than five (5) Business Days following receipt of the Withholding Notice. The Buyer and the Seller shall work in good faith to resolve their dispute as to whether withholding is required and the amount thereof (if any). If the Buyer and the Seller cannot resolve any such dispute, the Seller shall engage, at the Seller’s expense, such expert in Canadian Tax Law as shall be mutually acceptable in good faith to both the Seller and the Buyer and, as promptly as practicable, the Seller and the Buyer shall consult with such expert regarding whether such withholding is required. After such consultation, the Buyer shall be entitled to withhold such amounts as it determines in good faith it is required to withhold under Canadian Law. In order for the Seller to provide the Buyer with any applicable exemption certificate, the Buyer shall not remit to the Taxing authority any amounts withheld until such remittance is finally due and payable, taking into account all applicable extensions, comfort letters and other correspondence from the Canada Revenue Agency. The Buyer shall use commercially reasonable efforts to cooperate with the Seller (including taking such actions reasonably requested by the Seller) with respect to obtaining such extensions or other correspondence. With respect to any amounts held by the Buyer prior to remittance pursuant to the immediately preceding sentence, the Buyer and the Seller shall agree to the manner in which such funds shall be held during such time.

               (ii) Notwithstanding anything to the contrary herein or in Annex I hereto, the Seller shall have the right to control the conduct, through counsel of its own choosing at its own expense, the discussions or proceedings with any governmental authority relating to any withholding that Buyer has determined is required under Law with respect to the sale of Montenay, Inc. and its Subsidiaries and any refund claim, or other contest relating thereto; provided , however , that after the Buyer has remitted any withholding to a Taxing authority or if any withholding is asserted to have been due and payable, the Buyer, other than with respect to a refund claim, may participate in any such proceeding or discussion and the Seller shall not settle any such proceeding or discussion without the Buyer’s prior consent, not to be unreasonably withheld.

          (iii) The Buyer shall reimburse the Seller for all reasonable, documented out-of-pocket expenses incurred by the Seller in successfully obtaining a refund from the relevant Taxing authority of any Tax withheld by the Buyer pursuant to this Section

3

1.2(b) which is ultimately refunded to the Seller, plus interest on the amount of such refund at a rate of 3% per annum from the date of withholding through the date of such refund. This Section 1.2(b) shall exclusively govern the withholding of Tax by the Buyer with respect to the Buyer’s payment of the Purchase Price to the Seller.

          (iv) For the avoidance of doubt, it is understood by the parties that under United States federal, state and local Law no amounts shall be required to be deducted or withheld from the amounts payable under this Agreement on account of United States federal, state or local income taxes, and that the Buyer shall not be entitled to deduct or withhold any such amounts.

          Section 1.3 Post-Closing Adjustment .

          (a) Following the earlier of (i) (x) the last to occur of the Closing, the Montgomery Closing and the Dade Closing or (y) the occurrence of the Closing which does not exclude either the Montgomery Subsidiaries or the Dade Subsidiaries or (ii) March 31, 2010 (the earlier of the dates in clauses (i) and (ii) being the “ Working Capital Date ”), the amounts paid pursuant to Section 1.2 (and Section 5.8(g) and Section 5.8(h), as applicable) shall be adjusted as provided in this Section 1.3 to reflect (i) the Closing Working Capital (after taking into account the Band) and (ii) the difference, if any, between Net Financial Debt and Estimated Net Financial Debt; provided , however , that to the extent that the Montgomery Subsidiaries or the Dade Subsidiaries (or both) were not transferred as part of the Closing to the Buyer, the calculation of Closing Working Capital shall be subject to the foregoing adjustments:

               (i) If the Montgomery Closing has not occurred prior to the Working Capital Date (but the Dade Closing has occurred), the High Range Working Capital Target shall be deemed to be $9,000,000 and the Low Range Working Capital Target shall be deemed to be $5,000,000, and the Montgomery Subsidiaries and the Company shall be removed from the calculation of Closing Working Capital;

               (ii) If the Dade Closing has not occurred prior to the Working Capital Date (but the Montgomery Closing has occurred), the High Range Working Capital Target shall be deemed to be $5,000,000 and the Low Range Working Capital Target shall be deemed to be $1,000,000, and the Dade Subsidiaries shall be removed from the calculation of Closing Working Capital; and

               (iii) If the Dade Closing and the Montgomery Closing have not occurred prior to the Working Capital Date, the High Range Working Capital Target shall be deemed to be $3,000,000 and the Low Range Working Capital Target shall be deemed to be $(1,000,000), and the Montgomery Subsidiaries and the Dade Subsidiaries shall be removed from the calculation of Closing Working Capital.

          (b) Within 60 days following the Working Capital Date, the Buyer shall deliver to the Seller a post-closing financial certificate (the “ Post-Closing Financial Certificate ”) setting forth the calculation of Net Financial Debt and Closing Working Capital (in each case as of the close of business on the day immediately preceding the Closing Date and, to the extent applicable, (i) with respect to the Montgomery Subsidiaries, as of the close of business on the

day immediately preceding the Montgomery Closing and (ii) with respect to the Dade Subsidiaries, as of the close of business on the day immediately preceding the Dade Closing) which shall be calculated on a basis consistent with the principles and methodologies set forth in the illustrative calculation of Net Financial Debt and Closing Working Capital set forth on Schedule 1.2 (which includes illustrative calculations that contemplate the modifications set forth in Sections 1.2(a)(i)-(iii)).

          (c) Unless the Seller notifies the Buyer within 20 Business Days after the delivery of the Post-Closing Financial Certificate that it disputes the amount of Net Financial Debt or Closing Working Capital set forth on the Post-Closing Financial Certificate, the Post-Closing Financial Certificate shall be conclusive and binding. If the Seller does so notify, it shall specify in reasonable detail the items and amounts subject to such dispute (the “ Disputed Items ”) and the parties shall then use reasonable efforts during an additional 20 Business Day period to resolve in good faith their differences. Any Disputed Items which are not resolved by the mutual written agreement of the Seller and the Buyer within such 20 Business Day period shall be submitted for resolution to BDO Seidman, LLP or such other internationally recognized independent certified public accounting firm that will be mutually acceptable to the Buyer and the Seller (the “ Independent Accounting Firm ”). The Buyer and the Seller shall instruct the Independent Accounting Firm to limit its examination to the unresolved Disputed Items, to resolve any such unresolved Disputed Items in accordance with the requirements of this Agreement for any such items, and to use its best efforts to make its determination thereon within 30 Business Days after the referral of the Disputed Items to it in accordance herewith. The resolution of any such unresolved Disputed Items by such Independent Accounting Firm shall be made in a writing delivered to the Buyer and the Seller and shall be final, conclusive and binding upon the Buyer and the Seller. The fees and expenses charged by the Independent Accounting Firm shall be inversely borne by the parties in proportion to the aggregate amount of the Disputed Items that are awarded to each party (as determined by the Independent Accounting Firm). For purposes of verifying the Net Financial Debt and Closing Working Capital each party shall promptly provide such access as the other party, its accountants or the Independent Accounting Firm may reasonably require (i) to the books, records and accounts of the Company and its Subsidiaries, and (ii) to the personnel or accountants responsible for the finances and accounts of the Company and its Subsidiaries. Any delay in providing such access shall toll the respective periods set forth above.

          (d) If the Net Financial Debt determined in accordance with subsection (c) above shall be different than Estimated Net Financial Debt, then the Seller shall pay promptly to the Buyer (or if the difference is in favor of the Seller, the Buyer shall pay promptly to the Seller) the amount of such difference in immediately available funds. If Closing Working Capital is above the applicable High Range Working Capital Target, then the Buyer shall pay the Seller the amount of such excess. If Closing Working Capital is below the applicable Low Range Working Capital Target, then the Seller shall pay the Buyer the amount of such deficiency. If Closing Working Capital is within the Band, no payment shall be made by either party. To the extent practicable, the foregoing payments may be netted if determined at the same time. Any payment contemplated by this Section 1.3(d) shall be deemed to be an adjustment to the Purchase Price.

ARTICLE II
CLOSING AND TERMINATION

          Section 2.1 Closing .

          The Closing shall take place at the offices of Latham & Watkins LLP, 885 Third Avenue, Suite 1000, New York, NY 10022, at 10:00 a.m. (local time) four Business Days after the conditions specified in Sections 6.4(a) and (b) and 7.4(a) and (b) shall have been satisfied or waived (if permitted by applicable Law) or at such other time or other place as the Buyer and the Seller shall agree in writing (the date of the Closing being the “ Closing Date ”); provided , however, that if, as of the Closing Date, (x) the conditions specified in Section 6.4(c) with respect to Schedule 3.4(b)(i) and (b)(ii) shall not have been satisfied, or (y) the conditions specified in Section 6.4(d) shall not have been satisfied, then, subject to the condition set forth in Section 6.4(c) with respect to Schedule 3.4(b)(iii), the Closing shall occur as contemplated by Sections 5.8(g) and (h), as applicable.

          Section 2.2 Transactions on the Closing Date .

          (a) At the Closing, the Buyer shall deliver to the Seller:

               (i) cash, by wire transfer of immediately available funds to the account which is designated by the Seller at least three (3) Business Days prior to the Closing, in the amount determined pursuant to Section 1.2;

               (ii) the certificate contemplated by Section 7.3 hereof; and

               (iii) all other documents and instruments as shall be reasonably required by the Seller to effectuate or evidence the transactions contemplated hereby in accordance with the provisions hereof, or which are otherwise required hereunder.

          (b) At the Closing, the Seller shall deliver to the Buyer:

               (i) a stock certificate, duly endorsed by the Seller for transfer to the Buyer, representing the Shares;

               (ii) the letters of resignation of those members of the boards of directors of the Companies as provided in Section 6.6;

               (iii) the certificate contemplated by Section 6.3 hereof;

               (iv) an affidavit of the Seller, dated as of the Closing Date and substantially in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv), setting forth the Seller’s name, address and federal employer identification number and stating under the penalties of perjury that the Seller is not a “foreign person” within the meaning of Section 1445 of the Code; and

               (v) all other documents and instruments as shall be reasonably required by the Buyer to effectuate or evidence the transactions contemplated herein in accordance with the provisions hereof, or which are otherwise required hereunder

          Section 2.3 Termination; Survival After Termination .

          (a) This Agreement may be terminated prior to the Closing as follows:

               (i) by mutual written consent of the Buyer and the Seller;

               (ii) by the Buyer or the Seller by notice to the other party, if the Closing has not occurred on or before March 31, 2010 for any reason other than a material breach or violation by the party attempting to terminate this Agreement pursuant to this Section 2.3(a)(ii) of any of its representations, warranties or obligations under this Agreement;

               (iii) by either party by notice to the other party upon a material breach by the other party of any of its representations, warranties or obligations under this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Article VI and Article VII hereof, as applicable, and such breach shall not have been cured within fifteen (15) days after notice thereof or shall be incapable of being cured; provided, however, there shall be no right to terminate if the party attempting to terminate is in material breach of its representations, warranties or obligations under this Agreement; and

               (iv) by either party by giving notice to the other party if any Governmental Body of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable.

          (b) If this Agreement is terminated pursuant to Section 2.3(a), this Agreement shall become null and void and have no further force or effect and any such termination shall be without liability on the part of either party, except that any such termination shall be without prejudice to the rights of either party with respect to the willful breach or violation of the representations, warranties, covenants or agreements of the other party under this Agreement. Notwithstanding anything in this Agreement to the contrary, the provisions of this Section 2.3(b), Section 5.5, Section 5.6 and Article XI shall survive any termination of this Agreement.

ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLER

          The Seller represents and warrants to the Buyer as of the date hereof and as of the Closing Date, the date of the Montgomery Closing or the date of the Dade Closing, as applicable (unless otherwise expressly specified), as follows:

          Section 3.1 Title to Shares .

          The Seller owns the Shares beneficially and of record, free and clear of any Encumbrance and, upon delivery of and payment for such Shares at the Closing as herein provided, the Seller will convey to the Buyer good and valid title thereto, free and clear of any Encumbrance.

          Section 3.2 Due Authority .

          The Seller is a corporation duly organized and validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being and as heretofore conducted.

          Section 3.3 Authority to Execute and Perform .

          The Seller has the full legal right, power and authority to enter into, execute and deliver this Agreement and to consummate the transactions contemplated hereby and to perform fully its obligations hereunder, has taken all necessary corporate action to authorize the execution and delivery of the Agreement and the performance of its obligations hereunder, and no other proceedings on the part of the Seller are necessary to authorize the execution, delivery and performance of this Agreement. This Agreement has been duly executed and delivered by the Seller, and, assuming due execution and delivery hereof by the Buyer, this Agreement is a valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally.

          Section 3.4 No Contravention — Seller .

          Subject to the obtaining of all of the consents and approvals of Governmental Bodies, and any approvals and consents required by HSR and FERC, and third Persons set forth on Schedule 3.4(b)(i) , 3.4(b)(ii) , and 3.4(b)(iii) , the execution and delivery by the Seller of this Agreement, the consummation of the transactions contemplated hereby and the performance by the Seller of this Agreement in accordance with its terms and conditions will not: (a) violate any provision of the Organizational Documents of the Seller; (b) require the Seller to obtain any material consent, approval, authorization or action of, or make any filing with or give any notice to, any Governmental Body or any other Person; (c) violate, conflict with or result in the breach of any of the terms and conditions of, result in a material modification of, otherwise cause the termination of or give any other contracting party the right to accelerate, modify or terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any material Contract of the Seller or by or to which the Shares are or may be bound or subject; (d) violate any Law or Order of any Governmental Body applicable to the Seller; or (e) result in the creation of any Encumbrance on the Shares.

          Section 3.5 Capitalization .

          (a) The Shares are duly authorized, validly issued, fully paid and non-assessable and were not issued in violation of preemptive rights. The Company has no other shares of capital stock or other equity securities issued or outstanding.

          (b) The Seller has valid title to the Shares, with the full legal right, authority and power to sell, transfer and convey the Shares to the Buyer in accordance with the terms of this Agreement.

          (c) (i) The Seller is not a party to any agreement with a third party with respect to the voting, sale, transfer or purchase of the Shares and (ii) no Person has any outstanding or authorized option, warrant, right, call, commitment, subscription right, conversion right, exchange right, preemptive right or other securities or agreements (written or oral, firm and conditional) or any right or privilege capable of becoming an option, warrant, right, call, commitment, subscription right, conversion right, exchange right, preemptive right or other security or agreement pursuant to which (A) the Seller or the Company is or may become obligated to issue, sell, transfer or otherwise dispose of, redeem or acquire any of the Shares, or any interest in the share capital of the Company or (B) the Company has granted, or may be obligated to grant, to any Person other than a registered holder of Shares, and in respect of such Shares only, a right to participate in the profits of the Company.

          Section 3.6 Due Incorporation and Authority .

          Each of the Companies is duly organized and validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite corporate power and authority to own its properties and assets and to carry on its business as now being and as heretofore conducted.

          Section 3.7 Qualification .

          Each of the Companies is duly qualified or otherwise authorized to transact business in every jurisdiction in which such qualification or authorization is required by Law, except where any failure to so qualify or be authorized would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

          Section 3.8 Subsidiaries; Equity Interests .

          (a) Set forth in Schedule 3.8(a) are (i) the percentage of shares or other equity interests and voting rights owned, directly or indirectly, by the Company, of each Subsidiary (such shares or equity interests, the “ Subsidiary Shares ”); (ii) the percentage of shares or other equity interests owned or controlled by any Person other than the Company in each Subsidiary and (iii) all equity interests held by the Companies in any Person other than a Subsidiary.

          (b) All of the Subsidiary Shares are duly authorized, validly issued, fully paid, non-assessable and were not issued in violation of preemptive rights. The Company, directly or indirectly, is the lawful owner of the Subsidiary Shares, free and clear of any Encumbrances.

None of the Subsidiaries has issued any securities other than the shares comprising its share capital as set forth on Schedule 3.8(a) .

          (c) (i) Except as set forth in the Agreement of Limited Partnership of Montenay Montgomery Limited Partnership, as amended, neither the Seller nor any of the Companies is a party to any agreement with a third party with respect to the voting, sale, transfer or purchase of the Subsidiary Shares or with respect to the purchase of shares or other equity interests of any entity and (ii) there are no authorized or outstanding subscriptions, options, conversion or exchange rights, warrants, preemptive rights or other securities, agreements or commitments (whether oral or written, firm or conditional) pursuant to which (A) the Seller or any of the Companies is or may become obligated to issue, sell, transfer or otherwise dispose of, redeem or acquire any of the shares of any of the Subsidiaries or any other interest in the share capital of the Subsidiaries or (B) any of the Subsidiaries has granted, or may be obligated to grant, to any Person other than a registered holder of its shares of capital stock, and in respect of such shares only, a right to participate in the profits of such Subsidiary.

          Section 3.9 Organizational Documents and Corporate Records .

          The Seller has made available to the Buyer true and complete copies of the Organizational Documents of each of the Companies as in effect on the date hereof. The minute books, or comparable records, of the Companies have been made available to the Buyer for its inspection and are the true copies of the official minutes of all meetings and consents in lieu of meeting of the Board of Directors (and any committee thereof) or comparable bodies and shareholders (or other equityholders) of the Companies since January 1, 2004. The stock books, or comparable records, of the Companies have been made available to the Buyer for its inspection and are true and complete.

          Section 3.10 No Contravention — Companies .

          Subject to the obtaining of all of the consents and approvals of Governmental Bodies (with respect to the expiration of relevant waiting periods under HSR and the issuance of a relevant order by FERC) and third Persons as set forth on Schedule 3.4(b)(i) , (b)(ii) and (b)(iii) , the consummation of the transactions contemplated hereby and the performance by the Seller of this Agreement in accordance with its terms and conditions will not: (a) violate any provision of the Organizational Documents of any Company; (b) require any Company to obtain any material consent, approval, authorization or action of, or make any filing with or give any notice to, any Governmental Body or any other Person; (c) violate, conflict with or result in the breach of any of the material terms and conditions of, result in a material modification of, otherwise cause the termination of or give any other contracting party the right to accelerate, modify or terminate, or constitute (or with notice or lapse of time or both constitute) a default under, any Material Contract to which any Company is a party; (d) violate any Law or Order of any Governmental Body applicable to any Company; or (e) result in the creation of any Encumbrance upon any of the properties of any Company or the Subsidiary Shares.

          Section 3.11 Financial Statements .

          (a) The Company has delivered to the Buyer true and complete copies of (i) the audited consolidated financial statements of the Company and its consolidated Subsidiaries as at and for the years ended December 31, 2006, 2007 and 2008, together with the notes thereto (the “ Year-End Financial Statements ”, and the balance sheet for the year ending December 31, 2008 therein being the “ Audited Balance Sheet ”) and (ii) the unaudited consolidated financial statements (without footnotes) of the Company and its consolidated Subsidiaries as at May 31, 2009 and for the five months then ended (the “ Interim Financial Statements ”, and the balance sheet therein being the “ Most Recent Balance Sheet ”). Except with respect to the matter referenced in Section 5.15, the Year-End Financial Statements and the Interim Financial Statements have been prepared in accordance with US generally accepted accounting principles applied on a consistent basis, and, on that basis, fairly present, in all material respects, the financial position, results of operations, cash flows and change in stockholders’ equity of the Companies as at and for the periods ended referred to therein, subject in the case of the Interim Financial Statements to normal year-end audit adjustments that are not, in the aggregate, material in amount or type.

          (b) None of the Companies has (i) any off-balance sheet items or (ii) any other indebtedness or liability, absolute or contingent, known or unknown (including any liabilities related to factoring arrangements), except those that were (x) properly reflected on the Audited Balance Sheet or the Most Recent Balance Sheet or specifically disclosed in the footnotes to the Year-End Financial Statements, (y) incurred in the ordinary course of business since the date of the Most Recent Balance Sheet and which do not result, individually or in the aggregate, in a Material Adverse Effect, or (z) set forth in Schedule 3.11(b) .

          Section 3.12 No Material Adverse Effect .

          Since the date of the Audited Balance Sheet, there has not been, individually or in the aggregate, a Material Adverse Effect or other event, occurrence, change, effect, development or circumstance that would reasonably be expected to result in a Material Adverse Effect.

          Section 3.13 Taxes .

          Except as set forth in Schedule 3.13 :

          (a) The Companies have timely filed, or caused to be timely filed, with all appropriate Governmental Bodies, all Tax Returns required by applicable Law to have been filed by or with respect to any of the Companies prior to the Closing Date (taking into account permissible extensions), each of which Tax Returns is true, correct and complete in all material respects.

          (b) All material Taxes required to be paid by or on behalf of the Companies have been timely (taking into account permissible extensions) paid in full.

          (c) With respect to the Companies, (i) the Seller does not have any Knowledge of any basis for the tolling of applicable statutes of limitations for the assessment of any Taxes, (ii) no waiver or agreement is in force for the extension of time for assessment or

payment of any Taxes and no such waiver or agreement has been requested in writing, and (iii) there is no Tax deficiency proposed or, to the Knowledge of the Seller, threatened against any of the Companies.

          (d) No audit or other proceeding is ongoing or pending or, to the Knowledge of the Seller, threatened in writing, with respect to any Taxes due from or with respect to the income, assets or operations of any of the Companies.

          (e) There are no Encumbrances with respect to Taxes upon any asset of the Companies other than Encumbrances for current Taxes not yet due and payable.

          (f) As of December 31, 2008, the unpaid Taxes of the Companies did not exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth or included in the Audited Balance Sheet.

          (g) No claim has been made in writing by any Governmental Body in a jurisdiction where any of the Companies does not file a Tax Return stating that such entity is or may be subject to taxation by that jurisdiction for Taxes that would be covered by or the subject of such Tax Return which claim has not been fully paid or settled.

          (h) None of the Companies has any liability for Taxes of any other Person (other than the Seller, any of the Companies or the affiliated group (within the meaning of Section 1504(a) of the Code) of which the Companies are currently members) pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of federal, state, local or foreign Law), as a transferee or successor, by Contract or otherwise.

          (i) None of the Companies nor any of their Affiliates or predecessors by merger or consolidation has within the past two (2) years been a party to a transaction intended to qualify under Section 355 of the Code or under so much of Section 356 of the Code as relates to Section 355 of the Code.

          (j) At all times since its formation Montenay Montgomery Limited Partnership has been treated as a partnership for federal and applicable state income Tax purposes.

          (k) No property owned by any of the Companies is (i) property required to be treated as being owned by another Person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, (ii) constitutes “tax-exempt use property” within the meaning of Section 168(h)(1) of the Code or (iii) is “tax-exempt bond financed property” within the meaning of Section 168(g) of the Code.

          (l) Neither Montenay Inc. nor WC Pinnacle Holdings, Ltd. (i) was created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to Treasury Regulations Section 301.7701-5(a), (ii) is or was a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is or was treated as a U.S. corporation under Section 7874(b) of the Code, (iii) or any predecessor in

interest of any such entity has or had any nexus with the United States, a trade or business or permanent establishment within the United States or any other connection with the United States that would subject it to United States Tax or (iv) has been the subject of any election pursuant to Treasury Regulations Section 301.7701-3 or any similar or analogous provision of U.S. state or local Tax Law.

          (m) With respect to any Subsidiary which is taxed as a partnership for United States federal income tax purposes, (i) the Buyer will have the ability to cause such Subsidiary to make an election under Section 754 of the Code with respect to the Taxable period in which the Buyer’s deemed purchase of such Subsidiary’s partnership interests occurs; (ii) such Subsidiary at the time of the Buyer’s deemed purchase of the Subsidiary’s partnership interests will have in effect an election under Section 754 of the Code, or (iii) the Seller will cause such Subsidiary to make a Section 754 election with respect to the Taxable period in which the Buyer’s deemed purchase of such Subsidiary’s partnership interests occurs.

          Section 3.14 Compliance with Laws .

          Except as set forth on Schedule 3.14 , (i) none of the Companies is in, or in the past three years has been in, material violation of any applicable order, judgment, injunction, award, decree or writ (collectively, “ Orders ”), or any applicable law, statute, code, ordinance, regulation, rule or other requirement (collectively, “ Laws ”) of any Governmental Body (but not including, however, Environmental Laws, which are addressed separately in Section 3.17), and (ii) none of the Companies has received notice that any such material violation is being or may be alleged.

          Section 3.15 Claims and Proceedings .

          Except with respect to environmental matters, which are treated separately in Section 3.17, (i) there are no material outstanding Orders of any Governmental Body against or involving any of the Companies and (ii) except as set forth on Schedule 3.15 , there are no pending material actions, claims, demands, litigations or legal, administrative or arbitral proceedings (collectively, “ Claims ”), or, to the Knowledge of the Seller, threatened Claims or pending or threatened material investigations, against or involving any of the Companies.

          Section 3.16 Permits .

          (i) The Companies have all licenses, permits, exemptions, consents, waivers, authorizations, rights, orders or approvals of, and have made all required registrations with, any Governmental Body that are material to the conduct of the business, or the use of any material properties, of the Companies as such business and properties are currently conducted and used (collectively, “ Permits ”) (other than Permits relating to compliance with Environmental Laws, which are addressed separately in Section 3.17(b)), (ii) all such Permits are in full force and effect (including by operation of law), (iii) no Claim to revoke, limit or modify any of such Permits has been served upon any of the Companies, or is pending or, to the Knowledge of the Seller, threatened, and (iv) the Companies are in material compliance with all terms and conditions thereof, including the filing of any renewal applications on a timely basis.

          Section 3.17 Environmental Matters .

          Except as disclosed on Schedule 3.17 :

          (a) None of the Companies are, nor have any of the Companies been within the past three (3) years, in violation in any material respect of any Environmental Law in effect as of the date hereof or at any given time during such three-year period, as the case may be.

          (b) The Companies have all material Permits required pursuant to Environmental Laws, in effect as of the date hereof (“ Environmental Permits ”), and all such Permits are in full force and effect (including by operation of law). The Companies have each taken all commercially reasonable actions to maintain the effectiveness of their respective Environmental Permits, including the submission of timely and complete applications for renewal or reissuance of such Permits. No Claim to revoke, limit or modify any of such Permits has been served upon any of the Companies, or is pending, and the Companies are in compliance with all material terms and conditions thereof.

          (c) To the Knowledge of the Seller, (i) all Environmental Permits required to be held by the applicable governmental or public authorities, agencies, municipalities, or political subdivisions thereof, under the relevant service agreements or similar or related agreements have been obtained by the appropriate entity and are in full force and effect and such entity has taken all commercially reasonable actions to maintain the effectiveness of their respective Environmental Permits, including the submission of timely and complete applications for renewal or reissuance of such Permits; and (ii) no Claim to revoke, limit or modify any of such Permits has been served upon any such entity, or is pending, and such entity is in compliance with all material terms and conditions thereof.

          (d) No Hazardous Substances have been Released by or as a result of any action or omission of the Companies or their Affiliates, or, to the Knowledge of the Seller, any other Person, at or under any real property currently or formerly owned, leased or operated by any of the Companies, in a quantity or manner that has resulted in contamination of the soil, groundwater, surface water or structures that requires any of the Companies to undertake any Remedial Action or could reasonably be expected to result in the assertion of an Environmental Claim against any of the Companies that, in either case, would reasonably be expected to result, individually or in the aggregate, in costs, expenses, or damages in excess of $250,000 .

          (e) None of the Companies has generated, treated, stored, Released, transported or arranged for transportation or disposal of any Hazardous Substance at any location except in material compliance with Environmental Laws, in a manner and quantity reasonably necessary for the conduct of their business, and in a manner that would not reasonably be expected to result in the assertion of a material Environmental Claim against any of the Companies.

          (f) No Environmental Claim is currently pending or, to the Knowledge of the Seller, threatened against any of the Companies nor, to the Knowledge of Seller, is there any pending or threatened investigation by any Governmental Body or other Person that could

reasonably be expected to result in the assertion of a material Environmental Claim against any of the Companies.

          (g) None of the Companies has entered into any written agreement now in effect with any Governmental Body or any other Person by which any Company has assumed responsibility, either directly or as a guarantor or surety, for the remediation of any condition arising from or relating to a Release or threatened Release of Hazardous Substances.

          (h) None of the Companies has received notice from a Governmental Body or notice that may reasonably be interpreted to be credible from any other Person, relating to (i) the material violation of any Environmental Laws or Environmental Permits that would have a material impact on the conduct of the business of any of the Companies; (ii) a Release of Hazardous Substances for which any Company may be directly or indirectly liable under Environmental Laws; or (iii) injury or damage to any Person, property, or natural resource as a result of exposure to or the presence, Release, threatened Release, or discharge of any Hazardous Substances for which any Company may be directly or indirectly liable under Environmental Laws.

          (i) The Seller and the Companies have provided or otherwise made available to the Buyer all environmental audits, reports, and assessments concerning the Companies, their business or their real property (whether owned, leased or operated), that are in the possession, custody or control of the Seller or the Companies.

          Section 3.18 Contracts .

          (a) “ Material Contracts ” shall include any of the following Contracts to which any of the Companies is a party:

               (i) any Contract with any customer of the Companies representing 5% or more of the Company’s consolidated revenues for 2008, and any service agreement, power purchase agreement, steam purchase agreement or similar agreement with customers of the Companies;

               (ii) any Contract with any officer, director or employee, or Affiliate thereof, on the one hand, and the Company or any Affiliate thereof, on the other hand, involving payment by any Company of a minimum amount in excess of $50,000 per year, excluding employment contracts that can be terminated without continuing payments in excess of $50,000;

               (iii) any Contract with any labor union or association representing any employee of the Companies;

               (iv) any partnership agreement, limited liability company agreement or joint venture agreement of the Companies;

               (v) any outstanding loan agreements, guarantee agreements, letters of credit, mortgages, promissory notes or other documents relating to the borrowing of money or for lines of credit (other than intercompany loans and indebtedness between the Companies, and

any arrangements between the Companies and the Seller and its Affiliates that are repaid or terminated at or prior to the Closing);

               (vi) any Contract or commitment limiting or restricting any of the Companies (including any Affiliates following the Closing) in any respect from engaging in or competing in any line of business or in any territory;

               (vii) any Contract pursuant to which any third party manages any business belonging to any of the Companies or is given the right to operate or manage a business on the premises owned, operated or leased by any of the Companies;

               (viii) any Contract to buy or sell a material portion of the assets of any Company;

               (ix) any guarantee or similar agreement pursuant to which any of the Companies guarantees the obligations of any third party, including the Seller or an Affiliate of the Seller (other than the Companies);

               (x) any Contract pursuant to which any of the Companies has any continuing indemnity or similar obligations or undertakings to any third Persons in respect of the sale of any company or other entity or business, or pursuant to which any of the Companies is the beneficiary of any continuing indemnity or similar obligations or undertakings from any third Persons in respect of the acquisition of any Companies or other entity or business; and

               (xi) any Contract not covered pursuant to clauses (i) through (x) which involves the payment or receipt by any Company of a minimum amount in excess of $1,000,000 in any single year.

          (b) There have been made available to the Buyer true and complete copies of all of the Material Contracts. Except as set forth on Schedule 3.18(b) , (i) all of the Material Contracts are valid and binding upon and enforceable against the Company (or Subsidiary of the Company, as the case may be) and, to the Knowledge of the Seller, the other parties thereto, in accordance with their terms, (ii) none of the Companies is in default in any material respect under any Material Contract, nor does any condition exist that with notice or lapse of time or both would constitute such a material default thereunder, and (iii) to the Knowledge of the Seller, no other party to any Material Contract is in default thereunder in any material respect, nor does any condition exist that with notice or lapse of time or both would constitute such a material default thereunder by any such party.

          Section 3.19 Real Estate .

          (a) Set forth on Schedule 3.19(a) is a full and complete list and description of all real property owned by any of the Companies. Except as set forth on Schedule 3.19(a) , each of the Companies has good title to all real properties owned by it, free and clear of any material Encumbrances, except for Permitted Encumbrances.

          (b) Set forth on Schedule 3.19(b) is a full and complete list and description of all leases and other Material Contracts entered into by the Companies or relating to real property

used by any Company, but not owned by any Company. (i) Each of the Companies has the right to occupy all real property leased or used by it and to use the same for the conduct of its business as currently conducted, in each case of leased real property under valid and enforceable leases, (ii) none of such leases entitles the counterparty to terminate the relevant lease according to its express terms as a result of a change in control of the Company or indirect change of control of any Subsidiary, (iii) none of the Companies is in material breach of or default and no event has occurred which, with due notice or the lapse of time or both, may constitute such a material breach or default, under any lease, and no party to any lease has given any of the Companies written notice of or made a claim with respect to any material breach or default, the consequences of which, individually or in the aggregate, would result in any party to such lease having the right to terminate such lease and (iv) to the Knowledge of the Seller, without inquiry, none of the properties subject to a lease is subject to any sublease, license or other agreement involving any of the Companies pursuant to which any Person grants to any other Person any right to the use, occupancy or enjoyment of such property or any portion thereof.

          (c) Condemnation . None of the Companies has received notice of and there is no pending, and, to the Knowledge of the Seller, no threatened or contemplated, condemnation proceeding affecting any real property owned, leased or used by any Company, nor any sale or other disposition of the real property or any part thereof in lieu of condemnation.

          Section 3.20 Tangible Property .

          The material facilities, machinery, equipment, Improvements and other tangible property (the “ Tangible Property ”) of, used by or operated by the Companies are in all material respects, taking into account in each case the design, age, prior use and locale of, and prevailing weather and soil conditions applicable to, such Tangible Property, in operating condition and repair adequate for the purposes for which the Companies currently use such Tangible Property, subject to continued repair and replacement generally in accordance with past practice and as can reasonably be expected to be required taking into account in each case the design, prior use, age and locale of, and prevailing weather and soil conditions applicable to, such Tangible Property, and normal wear and tear.

          Section 3.21 Receivables .

          To the Knowledge of the Seller, all accounts and notes receivable reflected on the Most Recent Balance Sheet, and all accounts and notes receivable arising subsequent to the date of the Most Recent Balance Sheet, in each case net of reserves, (i) represent valid obligations arising from sales made, services rendered, or amounts loaned by the Companies, in the ordinary course of business and (ii) are the bona fide obligations of the account debtor in accordance with their terms.

          Section 3.22 Intellectual Property .

          Except as set forth on Schedule 3.22 , and except with respect to standard off-the-shelf software (and special software such as PeopleSoft, Enviance, Ceridian, etc.), to the Knowledge of the Seller (i) the Companies own or are licensed or otherwise have the right to use all copyrights, patents, trade secrets, trademarks and other proprietary rights (collectively, the

“ Intellectual Property ”) that are used in connection with the businesses of the Companies, free and clear of any Encumbrances, (ii) none of the Intellectual Property infringes or violates any Intellectual Property right of another Person, and (iii) none of the Companies otherwise in the conduct of its business infringes upon the Intellectual Property rights of any other Person.

          Section 3.23 Title to Properties .

          The Companies (or to the Knowledge of the Seller, without inquiry, the applicable owner or lessees thereof) own and have good title or a valid leasehold interest in or other enforceable right to use all of the properties and assets (other than real property, which is addressed in Section 3.19) used in connection with their businesses, including without limitation all of the properties and assets (other than real property, which is addressed in Section 3.19) reflected on the Most Recent Balance Sheet, in each case free and clear of any Encumbrance (except for Permitted Encumbrances), except for properties disposed of, or subject to purchase or sales orders, in the ordinary course of business since the date of the Most Recent Balance Sheet and except where the failure to have such title does not, individually or in the aggregate, constitute a Material Adverse Effect.

          Section 3.24 Customers .

          To the Knowledge of the Seller, since the date of the Audited Balance Sheet, there has not been any actual, or any threatened, termination, cancellation or limitation of, or any materially adverse modification or change in, the business relationship of the Companies, or the business of the Companies, with any customer whose purchase or usage of the services of the Companies represents more than 5% of the consolidated revenues of the Companies for 2008.

          Section 3.25 Employees and Benefit Plans .

          (a) Set forth on Schedule 3.25(a) are all (i) material Benefit Plans sponsored, maintained or contributed to by the Seller and its subsidiaries (other than the Companies) and (ii) all Company Benefit Plans. “ Benefit Plans ” shall mean (i) “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), including, without limitation, multiemployer plans within the meaning of Section 3(37) of ERISA), and (ii) all 401(k) and retirement, deferred compensation, profit sharing, stock purchase, stock option and other equity-based, health and disability insurance, employment, severance, change in control, “golden parachute,” retention, consulting, bonus, incentive, collective bargaining, fringe benefit and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), covering or otherwise applicable to any of the current or former employees, directors or consultants of any of the Companies (the “ Company Employees ”) (or any dependents or beneficiaries thereof) or under which any of the Companies has any present or future liability (other than for purposes of clauses (i) and (ii) above, (i) Contracts which are covered under Section 3.18(a)(iii) or (ii) plans, agreements, programs, policies or other arrangements that would be Benefit Plans, but for the fact that they are maintained outside of the United States primarily for the benefit of Company Employees working outside of the United States (such plans referred to hereafter as “ Foreign Benefit

Plans ”). Benefit Plans sponsored or maintained by the Companies are referred to herein as, the “ Company Benefit Plans ”. With respect to each Benefit Plan, the Seller has provided, or made available, to the Buyer a current, accurate and complete copy (or, an accurate description) thereof and any summary plan description, and with respect to each Company Benefit Plan, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter, and (iii) for the two most recent years, the Form 5500 and attached schedules, audited financial statements and actuarial valuation reports.

          (b)

               (i) All amounts which are required to be paid or contributed by any of the Companies in respect of any Benefit Plan (A) for any period ending prior to December 31, 2008, shall have been fully and timely paid or contributed; and (B) for any period thereafter, shall have been either fully and timely paid or contributed or properly accrued as a reserve.

               (ii) All payments due to Company Employees have been fully and timely made or properly recorded as a liability on the books of the relevant Company, except as would not, individually or in the aggregate, reasonably be expected to result in a material liability or obligation of the Companies.

               (iii) Since the date of the Most Recent Balance Sheet, none of the Companies has (A) paid or agreed to pay any bonuses or made or agreed to make any increase in the rate of wages, salaries or other remuneration of any individual Company Employees or any specific group or category of Company Employees, other than increases in the rate of wages or salaries in the ordinary course of business and in a manner consistent with past practice, or otherwise as dictated by the mandatory requirements of applicable Law or the terms of any applicable Benefit Plan existing as of the date of this Agreement or (B) changed its hiring or termination policies or practices in any respect, it being understood that the Seller may make or agree to make certain retention, severance or similar payments at any time at its own cost.

               (iv) The Companies have complied, and the Company Benefit Plans have been maintained in compliance, in all material respects with all applicable Laws relating to Benefit Plans, employment, employment practices and terms and conditions of employment and the terms of all applicable Benefit Plans. The Benefit Plans sponsored, maintained or contributed to by the Seller and its subsidiaries (other than the Companies) have been maintained in compliance with all applicable Laws relating to Benefit Plans, employment, employment practices and terms and conditions of employment and the terms of all applicable Benefit Plans, except as would not, individually or in the aggregate, reasonably be expected to result in material liability or obligation of the Companies.

          (c) Except as set forth on Schedule 3.25(c) , (i) each Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and has received a favorable determination letter as to its qualification, and the Company is not aware of any facts or circumstances that could reasonably be expected to cause the loss of such qualification, (ii) no event has occurred that has subjected, and, to the Knowledge of the Seller no condition exists that would subject, any of the Companies, either directly or by reason of their affiliation with any member of their “Controlled Group” (defined as

any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the Code), to any tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable Laws, (iii) no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code) has occurred with respect to any Company Benefit Plan, except as would not, individually or in the aggregate, reasonably be expected to result in material liability or obligation of the Companies, (iv) none of the Companies or any member of the Controlled Group has at any time within the past six years maintained, sponsored or contributed to, or has or had any liability or obligation in respect of, any employee benefit plan that is subject to Title IV of ERISA, including any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA), (v) none of the Companies has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits for Company Employees, except as required to avoid an excise tax under Section 4980B of the Code and (vi) each Benefit Plan that is subject to Section 409A of the Code (“ Section 409A ”) has been administered in all material respects in compliance with Section 409A and all applicable Internal Revenue Service guidance promulgated thereunder.

          (d) Except as would not, individually or in the aggregate, reasonably be expected to result in material liability or obligation of the Companies, with respect to each Benefit Plan, (i) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Seller, threatened, (ii) to the Knowledge of the Seller, no facts or circumstances exist that could give rise to any such actions, suits or claims and (iii) no administrative investigation, audit or other administrative proceeding by the Department of Labor, the Pension Benefit Guaranty Corporation (the “ PBGC ”), the Internal Revenue Service or other governmental agencies are in progress, pending or, to the Knowledge of the Seller, threatened (including, without limitation, any routine requests for information from the PBGC).

          (e) Neither the execution of this Agreement nor the transactions contemplated hereby (whether alone or in connection with any other event(s)) could (i) except as set forth on Schedule 3.25(e)(i) , result in severance pay or any increase in severance pay upon any termination of employment, (ii) except as set forth on Schedule 3.25(e)(ii) , accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or result in any other material obligation pursuant to, any of the Benefit Plans, (iii) limit or restrict the right of the Company to merge, amend or terminate any of the Benefit Plans, or (iv) result in payments under any of the Benefit Plans which would not be deductible under Section 280G of the Code.

          (f) Except as set forth on Schedule 3.25(f) , there are no Foreign Benefit Plans. With respect to any Foreign Benefit Plans, (i) all Foreign Benefit Plans have been established, maintained and administered in compliance with their terms and all applicable Laws except as would not, individually or in the aggregate, reasonably be expected to result in material liability or obligation of the Companies, (ii) all Foreign Benefit Plans that are required to be funded are fully funded, and with respect to all other Foreign Benefit Plans, adequate reserves therefore have been established on the accounting statements of the applicable Company entity except as would not, individually or in the aggregate, reasonably be expected to result in material liability or obligation of the Companies, and (iii) no material liability or obligation of the

Companies exists with respect to such Foreign Benefit Plans that has not been disclosed on Schedule 3.25(f) .

          Section 3.26 Employee Relations .

          Except as set forth in Schedule 3.26, each Company that is a signatory to a collective bargaining agreement is in all material respects in compliance with the terms thereof and is not and during the past three years has not been engaged in any material unfair labor or material unfair employment practices. No union certification or decertification petition has been filed and, to the Knowledge of the Seller, no union authorization card campaign has been conducted relating to employees of any Company within the past twelve months. No Claims exist or are, to the Knowledge of the Seller, threatened, between any of the Companies and its employee representative institutions or unions. No labor strike, material slowdown or material work stoppage or lockout is currently pending or has been, to the Knowledge of the Seller, threatened.

          Section 3.27 Powers of Attorney .

          Except as set forth in Schedule 3.27 and powers of attorney granted in financing documents and other operative documents in the ordinary course, none of the Companies has given any power of attorney or similar authority which remains in force and no Person, as agent or otherwise, is entitled or authorized to bind or commit any of the Companies in any way (other than its directors and officers in the ordinary and usual course of that Company’s business).

          Section 3.28 Insurance .

          (a) All insurance policies maintained by the Companies or under which any is an insured party are in full force and effect, and sufficient for all requirements of applicable Law and insurance requirements specified under assumed contracts, (b) all premiums due and payable in respect of such insurance policies have been duly paid, and (c) as of the date hereof none of the Companies has received any written notice from or on behalf of any insurance carrier issuing such policies that there will hereafter be a cancellation, or a material increase in a deductible or non-renewal of existing policies, or that material alteration of any equipment or any improvements to real estate owned or operated by or leased to or by any of the Companies or material modification of any of the methods of doing business of any of the Companies, will be required or suggested; provided , that , no representation is made regarding policies maintained by property owners.

          Section 3.29 Operations of the Companies

          Since the date of the Most Recent Balance Sheet, except as contemplated by this Agreement, the business of the Companies has been conducted in the ordinary course, consistent with past practice, and none of the Companies has:

          (a) except for bank borrowings in the ordinary course of business under existing facilities, incurred or guaranteed any indebtedness;

          (b) made any change in its accounting or financing methods or practices or made any change in depreciation or amortization policies or rates adopted by it except as required by United States generally accepted accounting principles as in effect on the date hereof;

          (c) made any loan or advance to any of its officers, directors, employees, consultants, agents or other representatives (other than travel or similar advances made in the ordinary course of business consistent with past practice), or made any other loan or advance otherwise than in the ordinary course of business;

          (d) increased in any manner the compensation, remuneration or fringe benefits (other than increases in the rate of wages or salaries in the ordinary course of business consistent with past practice) of any Company Employees, or paid or agreed to pay any pension or retirement allowance not required by any existing Benefit Plan to any such Company Employees (other than as contemplated by Schedule 3.25(a) ), or established, adopted, entered into, terminated, granted any waiver or consent under, altered or amended (other than by amendments relating to technical or administrative matters or amendments required by applicable Law) any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement (other than in the ordinary course of renewing or switching providers of such Benefit Plans);

          (e) except in the ordinary course of its business consistent with past practice, sold, abandoned or made any other disposition of, or suffered any impairment with respect to, any of its material properties or assets, determined to close any sites or significant facilities (other than with respect to the Excluded Subsidiaries as to which there shall be no such restrictions), or made any acquisition of all or any part of the properties, capital stock or business of any other Person;

          (f) except in the ordinary course of its business consistent with past practice, terminated, modified, amended, entered into or failed to renew any Material Contract (other than any service agreement, power purchase agreement or similar agreement) or entered into any Contract that would be a Material Contract if in existence on the date hereof;

          (g) terminated, modified, amended, entered into or failed to renew any service agreement, power purchase agreement or similar agreement;

          (h) failed to make capital expenditures or maintenance expenditures substantially in accordance with the capital expenditure and maintenance expenditure forecasts to be delivered to the Buyer within ten Business Days of the date hereof (which shall be reasonably consistent with previous information provided to the Buyer), or failed to make operations or similar expenditures necessary to maintain the Tangible Property of the Companies in the ordinary course of business consistent with past practice;

          (i) paid, discharged, satisfied, settled or compromised any material (a) liabilities or obligations, except in the ordinary course of business, or (b) Claims;

          (j) made or changed any election with respect to Taxes; adopted or changed any material accounting method with respect to Taxes; amended any Tax Return; entered into

any private letter ruling, closing agreement or similar ruling or agreement with the Internal Revenue Service or any other Tax authority; settled any audit or proceeding with respect to a material amount of Taxes owed by any of the Companies or foregone any material Tax refund;

          (k) amended its Organizational Documents; or

          (l) entered into any agreement, or otherwise became obligated, to take any of the foregoing actions.

          Section 3.30 Contracts with Affiliates .

          Subject to Section 5.7 and those items listed in Schedule 3.30 , none of the Companies will be after the Closing bound by any contractual obligation or commitment in favor of the Seller or any of its Affiliates (other than the Companies). None of the Seller or any of its Affiliates (other than the Companies) owns any assets, rights or properties presently used by the Companies in the conduct of their respective businesses, except as disclosed in Schedule 3.22 , Schedule 3.30 and the Shared Overhead Services memo dated May 20, 2009.

          Section 3.31 Broker’s, Finder’s or Similar Fees .

          There are no brokerage commissions, finder’s fees or similar fees or commissions payable by the Companies in connection with the transactions contemplated hereby. Except for a commission payable to Credit Suisse, there are no brokerage commissions, finder’s fees or similar fees or commissions payable by the Seller in connection with the transactions contemplated hereby.

          Section 3.32 Regulatory Matters .

          (a) Each of the Company or its Subsidiaries either (i) is not a “holding company” or a “public-utility company” within the meaning of PUHCA, as amended and the implementing regulations of FERC or (ii) is exempt from regulation by FERC under PUHCA.

          (b) The facility owned and operated by Montenay Montgomery Limited Partnership is a “qualifying facility” (“ QF ”), within the meaning of PURPA and the rules and regulations promulgated thereunder and is not currently subject to any pending inquiry, investigation, or challenge relating to its status as a QF.

          (c) With the exception of Montenay Montgomery Limited Partnership, none of the Subsidiaries is subject to the FPA.

          (d) With the exception of the sale and transfer of Montenay Montgomery Limited Partnership, the sale and transfer of the Shares under this Agreement is not subject to prior approval by FERC under Section 203 of the FPA.

          (e) Neither the Company nor any of its Subsidiaries, is subject to state laws or regulations respecting (i) the rates of electric utilities or (ii) the financial and organizational regulation of electric utilities.

          (f) Montenay Montgomery Limited Partnership only sells electric energy and capacity from its facility at wholesale pursuant to a power sales agreement (including any amendments thereto) which has been accepted for filing by FERC, and the order by which FERC accepted the power sales agreement for filing is final and non-appealable.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER

          The Buyer represents and warrants to the Seller as of the date hereof and as of the Closing Date as follows:

          Section 4.1 Due Incorporation and Authority .

          The Buyer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being and as heretofore conducted.

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