<PAGE>
EXHIBIT 10(c)
EXECUTIION COPY
================================================================================
MASTER AGREEMENT
BY AND BETWEEN
RAINY RIVER ENERGY CORPORATION
AND
CONSTELLATION ENERGY COMMODITIES GROUP, INC.
DATED AS OF DECEMBER 28, 2004
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS......................................................3
Section 1.01
Defined Terms............................................3
Section 1.02
Interpretation...........................................8
ARTICLE II
CLOSING..........................................................8
Section 2.01
Closing..................................................8
Section 2.02
Assignment...............................................8
Section 2.03
Assumption...............................................9
Section 2.04
Consideration............................................9
Section 2.05
Conditions Precedent to Closing Obligation of Parties....9
Section 2.06
Deliveries at Closing...................................11
Section 2.07
Further Assurances......................................13
ARTICLE III REPRESENTATIONS AND
WARRANTIES OF EACH OF THE PARTIES...........13
Section 3.01
Authority...............................................13
Section 3.02
No
Impediments..........................................13
Section 3.03
Litigation..............................................14
Section 3.04
Brokerage Arrangements..................................14
ARTICLE IV REPRESENTATIONS AND
WARRANTIES OF RAINY RIVER...................14
Section 4.01
Existing Agreements.....................................14
Section 4.02
Good
and Valid Title....................................14
Section 4.03
No
Defaults; No Litigation..............................15
Section 4.04
Solvency................................................15
Section 4.05
Provision of Information................................15
Section 4.06
Validity and Enforceability of Existing Agreements......16
ARTICLE V COVENANTS AND
OTHER AGREEMENTS OF THE PARTIES...................16
Section 5.01
Amendments to Existing Agreements.......................16
Section 5.02
FERC
Approval...........................................16
Section 5.03
Confidentiality.........................................16
Section 5.04
Notifications...........................................16
Section 5.05
Representations and Warranties..........................17
Section 5.06
Public Announcements....................................17
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Section 5.07
Cooperation.............................................17
ARTICLE VI
INDEMNIFICATION.................................................17
Section 6.01
Indemnification by Rainy River..........................17
Section 6.02
Indemnification by Assignee.............................17
Section 6.03
Limitations on Indemnification..........................18
Section 6.04
Notice of Indemnified Claims............................18
Section 6.05
Assumption of Defense...................................18
Section 6.06
Settlement..............................................19
Section 6.07
Direct Claims...........................................19
ARTICLE VII
MISCELLANEOUS...................................................20
Section 7.01
Termination.............................................20
Section 7.02
Effect of Termination...................................20
Section 7.03
Survival................................................21
Section 7.04
Headings................................................21
Section 7.05
Notices.................................................21
Section 7.06
Assignment..............................................22
Section 7.07
Governing Law; Jurisdiction.............................22
Section 7.08
Waiver of Jury Trial....................................22
Section 7.09
Expenses................................................23
Section 7.10
Severability............................................23
Section 7.11
Entire Agreement; Amendment.............................23
Section 7.12
Limitation of Liability.................................23
Section 7.13
Counterparts............................................23
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APPENDICES (EXISTING AGREEMENTS)
APPENDIX A
Kendall Purchase Agreement
APPENDIX B
Kendall Guaranty Agreement
APPENDIX C MGE
Purchase Agreement
APPENDIX D MGE
Guaranty Agreement
APPENDIX E WPPI
Purchase Agreement
APPENDIX F WPPI
Guaranty Agreement
APPENDIX G Fuel
Supply Agreement
EXHIBITS (TRANSACTION DOCUMENTS)
EXHIBIT A
Kendall Consent
EXHIBIT B Bank
Consent
EXHIBIT C
Kendall Assignment and Novation Agreement
EXHIBIT D
Kendall Guaranty Termination and Release
EXHIBIT E Bank
Termination and Release
EXHIBIT F New
Kendall Guaranty Agreement
EXHIBIT G First
Kendall Consent to Pledge
EXHIBIT H Second
Kendall Consent to Pledge
EXHIBIT I MGE
Assignment and Novation Agreement
EXHIBIT J WPPI
Assignment and Novation Agreement
EXHIBIT K MGE
Amendment to Guaranty
EXHIBIT L WPPI
Amendment to Guaranty
EXHIBIT M New
MGE Guaranty Agreement
EXHIBIT N New
WPPI Guaranty Agreement
EXHIBIT O
Indemnification Agreement
EXHIBIT P TMV
Assignment and Novation Agreement
EXHIBIT Q
[intentionally omitted]
EXHIBIT R MGE
Consent
EXHIBIT S WPPI
Consent
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MASTER AGREEMENT
----------------
MASTER
AGREEMENT, dated as of this 28th day of December, 2004 (this
"AGREEMENT"), by and among RAINY RIVER
ENERGY CORPORATION, a Minnesota
corporation and a wholly owned subsidiary
of ALLETE, Inc. ("RAINY RIVER"), and
CONSTELLATION ENERGY COMMODITIES GROUP,
INC., a Delaware corporation
("ASSIGNEE") and a wholly owned subsidiary
of Constellation Energy Group, Inc.
("PARENT"). Each of Rainy River and
Assignee is sometimes referred to herein as
a "PARTY" or collectively as the
"PARTIES."
RECITALS
WHEREAS, Rainy
River and LSP-Kendall Energy, LLC, a Delaware limited
liability company ("KENDALL"), have entered
into a Third Amended and Restated
Power Purchase Agreement dated as of August
8, 2003, a confidential copy of
which is attached hereto as APPENDIX A (the
"KENDALL PURCHASE AGREEMENT"),
pursuant to which Rainy River has agreed to
purchase from Kendall and Kendall
has agreed to sell to Rainy River
electrical capacity and energy from facilities
owned and operated by Kendall upon the
terms and conditions set forth in the
Kendall Purchase Agreement; and
WHEREAS, the
obligations of Rainy River under the Kendall Purchase
Agreement have been guaranteed by Minnesota
Power, Inc., a Minnesota corporation
("ALLETE"), pursuant to a Guaranty
Agreement, dated as of February 24, 1999, by
ALLETE in favor and for the benefit of
Kendall, a copy of which is attached
hereto as APPENDIX B (the "KENDALL GUARANTY
AGREEMENT"); and
WHEREAS, Rainy
River and Madison Gas and Electric Company, a Wisconsin
corporation ("MGE"), have entered into a
Long-Term Capacity and Energy Purchase
Contract dated as of November 30, 2001 (as
amended by Amendment No. 1 thereto
dated December 28, 2004), a copy of which
is attached hereto as APPENDIX C (the
"MGE PURCHASE AGREEMENT"), pursuant to
which MGE has agreed to purchase from
Rainy River a certain percentage of the
electrical capacity and energy provided
to Rainy River under the Kendall Purchase
Agreement upon the terms and
conditions set forth in the MGE Purchase
Agreement; and
WHEREAS,
the obligations of Rainy River under
the MGE Purchase
Agreement
have been
guaranteed by Minnesota Power Enterprises, Inc., a Minnesota
corporation ("MP ENTERPRISES"), pursuant to
a Guaranty Agreement, dated as of
November 30, 2001, by MP Enterprises in
favor and for the benefit of MGE, a copy
of which is attached hereto as APPENDIX D
(the "MGE GUARANTY AGREEMENT"); and
WHEREAS, Rainy
River and Wisconsin Public Power Inc., a Wisconsin
corporation ("WPPI"), have entered into a
Long-Term Capacity and Energy Purchase
Contract dated as of December 13, 2000 (as
amended by Amendment No. 1 thereto
dated February 2003 and by Amendment No. 2
thereto dated December 28, 2004), a
copy of which is attached hereto as
APPENDIX E (the "WPPI PURCHASE AGREEMENT"),
pursuant to which WPPI has contracted to
purchase from Rainy River a certain
percentage of the electrical capacity and
energy provided to
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Rainy River
under the Kendall Purchase Agreement upon the terms and
conditions set forth in the WPPI Purchase
Agreement; and
WHEREAS, the
obligations of Rainy River under the WPPI Purchase Agreement
have been guaranteed by ALLETE pursuant to
a Guaranty Agreement, dated as of
January 19, 2001, by ALLETE in favor and
for the benefit of WPPI, a copy of
which is attached hereto as APPENDIX F (the
"WPPI GUARANTY AGREEMENT"); and
WHEREAS, Rainy
River, Tenaska Marketing Ventures, ("TMV") and the other
parties listed therein, as applicable, have
entered into the Fuel Supply
Agreement, a copy of which is attached as
APPENDIX G; and
WHEREAS, Rainy
River desires to assign and transfer to Assignee, and
Assignee desires to assume and accept from
Rainy River, all of Rainy River's
rights and obligations from and after the
Closing under each of the Kendall
Purchase Agreement, the MGE Purchase
Agreement, the WPPI Purchase Agreement and
the Fuel Supply Agreement upon the terms
and conditions set forth herein; and
WHEREAS, ALLETE
desires to terminate the Kendall Guaranty from and after
the Closing; and
WHEREAS, ALLETE
and MP Enterprises desire to amend each of the MGE Guaranty
Agreement and WPPI Guaranty Agreement from
and after Closing; and
WHEREAS, upon
termination of the Kendall Guaranty Agreement and amendment
of each of the MGE Guaranty Agreement and
WPPI Guaranty Agreement from and after
the Closing, Assignee desires to cause
Parent to enter into new guaranty
agreements with each of Kendall, MGE and
WPPI; and
WHEREAS, upon
execution of this Agreement, Rainy River delivered to
Assignee a duly executed written consent of
MGE to (i) the MGE Assignment and
Novation Agreement as required by Section
21.2.1 of the MGE Purchase Agreement,
(ii) the MGE Amendment to Guaranty as
required by Section 7.2 of the MGE
Guaranty Agreement, (iii) the New MGE
Guaranty Agreement as required by Section
7.2 of the MGE Guaranty Agreement and (iv)
the TMV Assignment and Novation
Agreement as required by the Fuel Supply
Agreement substantially in the form
attached as EXHIBIT R (the "MGE CONSENT");
and
WHEREAS, upon
execution of this Agreement, Rainy River delivered to
Assignee a duly executed written consent of
WPPI to (i) the WPPI Assignment and
Novation Agreement as required by Section
21.2.1 of the WPPI Purchase Agreement,
(ii) the WPPI Amendment to Guaranty as
required by Section 7.2 of the WPPI
Guaranty Agreement, (iii) the New WPPI
Guaranty Agreement as required by Section
7.2 of the WPPI Guaranty Agreement and (iv)
the TMV Assignment and Novation
Agreement as required by the Fuel Supply
Agreement substantially in the form
attached as EXHIBIT S (the "WPPI
CONSENT").
NOW, THEREFORE,
in consideration of the premises and the representations,
warranties, covenants and agreements herein
contained, and intending to be
legally bound hereby, the parties hereby
covenant and agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01
DEFINED TERMS. As used
in this Agreement, and unless the
context requires a different meaning, the
following terms have the meanings
indicated:
"ACTION OR PROCEEDING" means any action, suit, proceeding,
arbitration or Governmental Entity
investigation or audit.
"AFFILIATE" means, with respect to any Person, a Person that
controls, is controlled by, or is under
common control with such Person (it
being understood that a Person shall be
deemed to "control" another Person, for
purposes of this definition, if such Person
directly or indirectly has the power
to direct or cause the direction of the
management and policies of such other
Person, whether through holding beneficial
ownership interests in such other
Person, by contract or otherwise).
"ALLETE" has the meaning ascribed to it in the recitals of this
Agreement.
"ASSIGNEE" has the meaning ascribed to it in the preamble of
this
Agreement.
"ASSIGNEE INDEMNIFIED PERSONS" means Assignee and its
Affiliates
and each of their respective directors,
partners, officers, agents and
employees.
"ASSIGNMENT TRANSACTIONS" has the meaning ascribed to it in
Section 2.05(g) hereof.
"ASSUMPTION" has the meaning ascribed to it in Section 4.04.
"BANK CONSENT" has the meaning ascribed to it in Section
2.05(b)
hereof.
"BANK TERMINATION AND RELEASE" has the meaning ascribed to it
in Section 2.06(b).
"BANKRUPTCY CODE" has the meaning ascribed to it in Section
4.04.
"BUSINESS DAY" means any day which is not a Saturday, a Sunday
or any other day on which banks in the
State of New York are authorized or
required by Law to close.
"CLOSING" has the meaning ascribed to it in Section 2.01.
"COLLATERAL AGENT" means Societe Generale, as collateral agent
(together with its successors in such
capacity) for the secured parties pursuant
to that certain Collateral Agency
Agreement, dated as of November 12, 1999 (as
amended, restated, modified or otherwise
supplemented from time to time), among
Kendall, Societe Generale and the
administrative agent named therein.
"CONSENT" means any approval, consent, ratification, waiver or
other authorization.
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"CONTRACT" means any agreement, contract, lease, consensual
obligation, promise or undertaking (whether
written or oral and whether express
or implied), whether or not legally
binding.
"DEBT" means any obligations in respect of (i) borrowed money,
(ii) capitalized lease obligations, (iii)
interest rate agreements and currency
agreements, (iv) guarantees of any
obligation of any third Person, (v) letters
of credit and (vi) indemnities or
performance bonds.
"ENCUMBRANCE" means any charge, claim, community or other
marital property interest, condition,
equitable interest, lien, option, pledge,
security interest, mortgage, right of way,
easement, encroachment, servitude,
right of first option, right of first
refusal or similar restriction, including
any restriction on use, voting (in the case
of any security or equity interest),
transfer, receipt of income or exercise of
any other attribute of ownership.
"EXISTING AGREEMENT(S)" means each of (i) the Kendall Purchase
Agreement, (ii) the Kendall Guaranty
Agreement, (iii) the MGE Purchase
Agreement, (iv) the MGE Guaranty Agreement,
(v) the WPPI Purchase Agreement,
(vi) the WPPI Guaranty Agreement, and (vii)
the Fuel Supply Agreement, each as
attached as an appendix hereto.
"FERC" means the Federal Energy Regulatory Commission.
"FIRST BANK AGREEMENT" means that certain Consent and
Agreement,
dated as of November 12, 1999, by and among
ALLETE, Kendall and the Collateral
Agent.
"FIRST KENDALL CONSENT TO PLEDGE" has the meaning ascribed to
it
in Section 2.06(c).
"FUEL SUPPLY AGREEMENT" means the First Amended and Restated
Agreement for Fuel Supply & Fuel
Management Services, dated as of December 23,
2004, by and among TMV, WPPI, MGE and Rainy
River.
"GOVERNMENTAL ENTITY" means any foreign, federal, state or
local
government or subdivision thereof, or
governmental, judicial, legislative,
executive, administrative or regulatory
authority, agency, commission, court,
tribunal or body.
"GROSSED-UP BASIS" means, when used to describe the basis on
which
the payment of a specified sum is to be
made, a basis such that the amount of
such payment, after being reduced by the
amount of all Taxes imposed on the
recipient of such payment as a result of
the receipt or accrual of such payment,
will equal the specified sum. For this
purpose, Taxes are to be calculated at
the maximum statutory rate applicable to
the recipient of such payment for the
relevant year after taking into account,
for example, the effect of deductions
available for interest paid or accrued and
Taxes such as state and local income
taxes, which effect similarly would be
calculated on the basis of the maximum
statutory rate of the Tax for which such
deduction was available.
"INDEMNIFICATION AGREEMENT" has the meaning ascribed to it in
Section 2.06(i) hereof.
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"INDEMNIFIED CLAIM" has the meaning ascribed to it in Section
6.04
hereof.
"INDEMNIFYING PERSON" means the Person or Persons obligated to
provide indemnification under Article
VI.
"INDEMNIFIED PERSONS" means the Person or Persons entitled to
indemnification under Article VI.
"KENDALL" has the meaning ascribed to it in the recitals of
this
Agreement.
"KENDALL ASSIGNMENT AND NOVATION AGREEMENT" has the meaning
ascribed to it in Section 2.06(a)
hereof.
"KENDALL CONSENT" has the meaning ascribed to it in Section
2.05(a) hereof.
"KENDALL GUARANTY AGREEMENT" has the meaning ascribed to it in
the
recitals of this Agreement.
"KENDALL GUARANTY TERMINATION AND RELEASE" has the meaning
ascribed to it in Section 2.06(b)
hereof.
"KENDALL PURCHASE AGREEMENT" has the meaning ascribed to it in
the
recitals of this Agreement.
"LAW" means any statute, law, constitutional provision, code,
regulation, ordinance, rule, ruling,
judgment, decision, order, writ,
injunction, decree, permit, concession,
grant, franchise, license, agreement,
directive, binding guideline or policy or
rule of common law, requirement of, or
other governmental restriction of or
determination by any Governmental Entity or
any interpretation of any of the foregoing
by any Governmental Entity.
"LIABILITIES" means all Debt, obligations and other liabilities
of
a Person of any kind, character or
description, whether absolute or contingent,
known or unknown, accrued or unaccrued,
disputed or undisputed, liquidated or
unliquidated, secured or unsecured, joint
or several, vested or unvested,
executory, determined, determinable or
otherwise, and whether or not the same is
required to be accrued on the financial
statements of such Person.
"LOSS" or "LOSSES" means any and all losses, costs, claims,
damages, penalties, interest and expenses
(including reasonable attorneys' fees
and expenses and reasonable costs of
investigation and litigation). In the event
any of the foregoing are indemnifiable
hereunder, the terms "Loss" and "Losses"
shall include any and all reasonable
attorneys' fees and expenses and reasonable
costs of investigation and litigation
incurred by the Indemnified Person in
enforcing such indemnity.
"MGE" has the meaning ascribed to it in the recitals of this
Agreement.
"MGE AMENDMENT TO GUARANTY" has the meaning ascribed to it in
Section 2.06(e) hereof.
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"MGE ASSIGNMENT AND NOVATION AGREEMENT" has the meaning
ascribed
to it in Section 2.06(d) hereof.
"MGE GUARANTY AGREEMENT" has the meaning ascribed to it in the
recitals of this Agreement.
"MGE CONSENT" has the meaning ascribed to it in the recitals of
this Agreement.
"MGE PURCHASE AGREEMENT" has the meaning ascribed to it in the
recitals of this Agreement.
"MP ENTERPRISES" has the meaning ascribed to it in the recitals
of
this Agreement.
"NEW KENDALL GUARANTY AGREEMENT" has the meaning ascribed to it
in
Section 2.06(c) hereof.
"NEW MGE GUARANTY AGREEMENT" has the meaning ascribed to it in
Section 2.06(g) hereof.
"NEW WPPI
GUARANTY AGREEMENT" has the meaning ascribed to it in
Section 2.06(h) hereof.
"NON-DISCLOSURE AGREEMENT" has the meaning ascribed to it in
Section 5.03 hereof.
"ORDER" means any writ, judgment, decree, injunction or similar
order of any Governmental Entity (in each
such case whether preliminary or
final).
"PARENT" has the meaning ascribed to it in the preamble of this
Agreement.
"PARTY" or "PARTIES" has the meaning ascribed to it in the
preamble of this Agreement.
"PAYMENT" has the meaning ascribed to it in Section 4.04.
"PERSON" means an individual, corporation, partnership, trust,
limited liability company, a branch of any
legal entity, unincorporated
organization, joint stock company, joint
venture, association, other entity or
Governmental Entity.
"PROVIDED MATERIAL" has the meaning ascribed to it in Section
4.05.
"RAINY RIVER" has the meaning ascribed to it in the preamble of
this Agreement.
"RAINY RIVER INDEMNIFIED PERSONS" means Rainy River and its
Affiliates, and each of their respective
directors, partners, officers, agents
and employees.
"RETAINED LIABILITIES" means any Liabilities of Rainy River
(whether known or unknown, accrued,
absolute, contingent or otherwise), except
obligations of Rainy River under the
Kendall Purchase Agreement, the MGE
Purchase Agreement, the WPPI Purchase
Agreement
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and the Fuel Supply Agreement arising out
of facts, events or circumstances that
occur from and after the Closing.
"SECOND BANK AGREEMENT" means that certain Consent and
Agreement,
dated as of November 12, 1999, by and among
Rainy River, Kendall and the
Collateral Agent.
"SECOND KENDALL CONSENT TO PLEDGE" has the meaning ascribed to
it
in Section 2.06(c).
"TAX" or "TAXES" means (i) all taxes, however denominated,
including any interest, penalties or
additions to tax that may become payable in
respect thereof, imposed by any federal,
state, local or foreign government or
any agency or political subdivision of any
such government, which taxes shall
include, without limiting the generality of
the foregoing, all net or gross
income taxes (including, but not limited
to, United States federal income taxes
and state income taxes), payroll and
employee withholding taxes, unemployment
insurance, social security, sales and use
taxes, excise taxes, environmental
taxes, franchise taxes, net proceeds taxes,
AD VALOREM taxes, value added taxes,
bank shares taxes, alternative or add-on
minimum taxes, deed taxes, profits
taxes, windfall profits taxes, transaction
taxes, license taxes, lease taxes,
service taxes, service use taxes, severance
taxes, energy taxes, capital taxes,
premium taxes, gross receipts taxes,
occupation taxes, real and personal
property taxes, stamp taxes, transfer
taxes, withholding taxes, workers'
compensation taxes, and other obligations,
assessments, duties, customs, fees,
levies or charges of the same or of a
similar nature, and (ii) any obligations
under any agreement or arrangement with
respect to any tax described in clause
(i) above.
"THIRD BANK AGREEMENT" means that certain Reaffirmation and
Amendment of Consent and Agreement, dated
as of August 8, 2003, by and among
Rainy River, Kendall and the Collateral
Agent.
"THIRD PARTY CLAIM" has the meaning ascribed to it in Section
6.05
hereof.
"TRANSACTION DOCUMENT(S)" means each of (i) the Kendall
Assignment
and Novation Agreement, (ii) the Kendall
Guaranty Termination and Release, (iii)
the New Kendall Guaranty Agreement, (iv)
the First Kendall Consent to Pledge,
(v) the Second Kendall Consent to Pledge,
(vi) the MGE Assignment and Novation
Agreement, (vii) the MGE Amendment to
Guaranty, (viii) the New MGE Guaranty
Agreement, (ix) the WPPI Assignment and
Novation Agreement, (x) the WPPI
Amendment to Guaranty, (xi) the New WPPI
Guaranty Agreement, (xii) the TMV
Assignment and Novation Agreement, (xiii)
the MGE Consent and (xiv) the WPPI
Consent.
"WPPI" has the meaning ascribed to it in the recitals of this
Agreement.
"WPPI AMENDMENT TO GUARANTY" has the meaning ascribed to it in
Section 2.06(f) hereof.
"WPPI ASSIGNMENT AND NOVATION AGREEMENT" has the meaning
ascribed
to it in Section 2.06(d) hereof.
"WPPI CONSENT" has the meaning ascribed to it in the recitals
of
this Agreement.
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"WPPI GUARANTY AGREEMENT" has the meaning ascribed to it in the
recitals of this Agreement.
"WPPI PURCHASE AGREEMENT" has the meaning ascribed to it in the
recitals of this Agreement.
Section 1.02
INTERPRETATION. Whenever
used in this Agreement, except as
otherwise expressly provided or unless the
context otherwise requires, any noun
or pronoun shall be deemed to include the
plural as well as the singular and to
cover all genders. Whenever used in this
Agreement, unless otherwise specified,
the terms "hereof," "herein," "hereunder"
and similar terms refer to this
Agreement as a whole, and references herein
to Sections refer to sections of
this Agreement. Whenever used in this
Agreement, the term "including" shall be
deemed to mean "including, without
limitation."
ARTICLE II
CLOSING
Section 2.01
CLOSING. The closing (the "CLOSING") of the transactions
contemplated hereby will take place at the
offices of Morgan, Lewis & Bockius
LLP, New York, New York, or at such other
place as the Parties mutually agree,
at 10:00 a.m. local time, on the date
which: (i) occurs on the first day of a
month, (ii) is at least seven (7) days
after the satisfaction of all the
conditions to the obligations of the
Parties to consummate the transactions
contemplated hereby as set forth in Section
2.05, and (iii) in no event is
earlier than April 1, 2005, or such other
date as the Parties may mutually
determine.
Section 2.02
ASSIGNMENT. At the Closing,
(a)
on the terms and conditions set forth in the Kendall
Assignment and Novation Agreement, Rainy
River shall convey, assign and transfer
to Assignee, its successors and assigns for
its use, benefit and behalf, free
and clear of all Encumbrances of any kind,
all of Rainy River's right, title and
interest in and to the Kendall Purchase
Agreement;
(b)
on the terms and conditions set forth in the MGE
Assignment and Novation Agreement, Rainy
River shall convey, assign and transfer
to Assignee, its successors and assigns for
its use, benefit and behalf, free
and clear of all Encumbrances of any kind,
all of Rainy River's right, title and
interest in and to the MGE Purchase
Agreement; and
(c)
on the terms and conditions set forth in the WPPI
Assignment and Novation Agreement, Rainy
River shall convey, assign and transfer
to Assignee, its successors and assigns for
its use, benefit and behalf, free
and clear of all Encumbrances of any kind,
all of Rainy River's right, title and
interest in and to the WPPI Purchase
Agreement; and
(d)
on the terms and conditions set forth in the TMV
Assignment and Novation Agreement, Rainy
River shall convey, assign and transfer
to Assignee, its successors and assigns for
its use, benefit and behalf, free
and clear of all Encumbrances of any kind,
all of Rainy River's right, title and
interest in and to the Fuel Supply
Agreement.
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Section 2.03
ASSUMPTION. At the Closing,
(a)
on the terms and conditions set forth in the Kendall
Assignment and Novation Agreement, Assignee
shall assume and agree to perform
all of Rainy River's obligations under the
Kendall Purchase Agreement to be
performed from and after the Closing, but
Assignee shall not assume any Retained
Liabilities;
(b)
on the terms and conditions set forth in the MGE
Assignment and Novation Agreement, Assignee
shall assume and agree to perform
all of Rainy River's obligations under the
MGE Purchase Agreement to be
performed from and after the Closing, but
Assignee shall not assume any Retained
Liabilities;
(c)
on the terms and conditions set forth in the WPPI
Assignment and Novation Agreement, Assignee
shall assume and agree to perform
all of Rainy River's obligations under the
WPPI Purchase Agreement to be
performed from and after the Closing, but
Assignee shall not assume any Retained
Liabilities; and
(d)
on the terms and conditions set forth in the TMV
Assignment and Novation Agreement, Assignee
shall assume and agree to perform
all of Rainy River's obligations under the
Fuel Supply Agreement to be performed
from and after the Closing, but Assignee
shall not assume any Retained
Liabilities.
Section 2.04
CONSIDERATION. As consideration for the assumption by
Assignee of the obligations under the
Kendall Purchase Agreement, the MGE
Purchase Agreement and the WPPI Purchase
Agreement, Rainy River shall pay to
Assignee at Closing, by wire transfer of
immediately available funds to such
account as Assignee may direct, the sum of
Seventy-Three Million Dollars
($73,000,000), free and clear of all
withholdings.
Section 2.05
CONDITIONS PRECEDENT TO CLOSING OBLIGATION OF PARTIES. The
obligation of the Parties to consummate
transactions contemplated hereby, is
subject to the satisfaction prior to the
Closing of each of the following
conditions:
(a)
A
duly executed written consent of Kendall, substantially
in the form attached hereto as EXHIBIT A
(the "KENDALL CONSENT"), to (x) the
Kendall Assignment and Novation Agreement
as required by Section 21.2 of the
Kendall Purchase Agreement, (y) the Kendall
Guaranty Termination and Release as
required by Section 7.2 of the Kendall
Guaranty Agreement and (z) the New
Kendall Guaranty Agreement as required by
Section 7.2 of the Kendall Guaranty
Agreement;
(b)
A duly executed written consent of the Collateral Agent,
substantially in the form attached hereto
as EXHIBIT B (the "BANK CONSENT"), to
(x) the Kendall Guaranty Termination and
Release, (y) the New Kendall Guaranty
Agreement and (z) the Kendall Assignment
and Novation Agreement, as required by
Section 1.3 of the First Bank Agreement,
Section 1.4 of the Second Bank
Agreement and the Third Bank Agreement;
(c)
No Action or Proceeding by any Governmental Entity shall
have been instituted or threatened which
enjoins or prohibits, or would be
reasonably expected to enjoin or prohibit,
the consummation of the transactions
contemplated hereby, and no Action or
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Proceeding by any other Person shall have
been instituted that has resulted in
any order or injunction that prohibits or
enjoins the consummation of the
transactions contemplated hereby;
(d)
(i) Each of the representations and warranties of Rainy
River contained in this Agreement that is
qualified by materiality shall have
been true and correct in all
