ASSET TRANSFER AGREEMENT among UNION ELECTRIC COMPANY d/b/a AMEREN UE, CENTRAL ILLINOIS PUBLIC SERVICE COMPANY d/b/a AMEREN CIPS and AMEREN CORPORATION Dated as of May 2, 2005
Exhibit 10.1
Execution Copy
|
among
UNION
ELECTRIC COMPANY d/b/a AMEREN UE,
CENTRAL
ILLINOIS PUBLIC SERVICE COMPANY d/b/a AMEREN CIPS
and
AMEREN
CORPORATION
Dated
as of May 2, 2005
|
CHI-1464202v2
TABLE OF CONTENTS
Page
|
ARTICLE
1 |
TRANSFER
OF ASSETS |
1 |
|
1.1 |
Identification
of Assets |
1 |
|
(a)
Inventory |
2 | |
|
(b)
Fixed Assets |
2 | |
|
(c)
Real Property |
2 | |
|
(d)
Leased Property |
2 | |
|
(e)
Intellectual Property Rights |
2 | |
|
(f)
Business Records |
2 | |
|
(g)
Contracts |
3 | |
|
(h)
Permits |
3 | |
|
(i)
Insurance |
3 | |
|
(j)
Rolling Stock and Vehicles |
3 | |
|
(k)
Xxxxx Cash |
3 | |
|
(l)
Accounts Receivable |
3 | |
|
(m)
Uncollectible Accounts |
3 | |
|
(n)
Accrued Revenues |
3 | |
|
(o)
Environmental Cleanup |
3 | |
|
(p)
Customer Deposits |
3 | |
|
(q)
Miscellaneous |
3 | |
|
1.2 |
Dividend
and Transfer of Assets |
4 |
|
1.3 |
Contribution
of Assets |
4 |
|
1.4 |
Retained
Assets |
4 |
|
(a)
Designated Assets |
4 | |
|
(b)
Non-Assigned Contracts |
4 | |
|
(c)
Employee Plan Assets |
5 | |
|
(d)
Corporate Records |
5 | |
|
(e)
This Agreement |
5 | |
|
(f)
Third Party Actions |
5 | |
|
(g)
Subsidiaries |
5 | |
|
(h)
Cash and Cash Equivalents |
5 | |
|
(i)
Discontinued Operations |
5 | |
|
(j)
Miscellaneous |
5 | |
|
1.5 |
Assignability
and Consents |
5 |
|
(a)
Required Consents |
5 | |
|
(b)
Nonassignable Items |
6 | |
|
ARTICLE
2 |
LIABILITIES |
6 |
|
2.1 |
Assumption
of Liabilities |
6 |
|
(a)
Balance Sheet |
6 | |
|
(b)
Trade Payables |
6 | |
|
(c)
Contracts |
6 |
i
TABLE OF CONTENTS
(continued)
Page
|
(d)
Liabilities and Obligations |
7 | |
|
(e)
Litigation |
7 | |
|
(f)
Environmental Liabilities |
7 | |
|
(g)
Accounts Payable |
7 | |
|
(h)
Accrued Payroll |
7 | |
|
(i)
Vacation Liability |
7 | |
|
(j)
Customer Liabilities |
7 | |
|
(k)
Taxes |
8 | |
|
2.2 |
Retained
Liabilities |
8 |
|
(a)
Pre-Closing |
8 | |
|
(b)
Liabilities Relating to the Transfer of Acquired Assets |
8 | |
|
(c)
Employee-Related Liabilities |
8 | |
|
(d)
Litigation |
9 | |
|
(e)
Product, Environmental and Safety Liability |
9 | |
|
(f)
Taxes |
9 | |
|
(g)
Liabilities |
9 | |
|
ARTICLE
3 |
TRANSFER
AND EXCHANGE |
9 |
|
3.1 |
Payment |
9 |
|
3.2 |
Prorations |
10 |
|
ARTICLE
4 |
CLOSING |
10 |
|
4.1 |
General |
10 |
|
4.2 |
Documents
to be Delivered by Transferor |
10 |
|
4.3 |
Documents
to be Delivered by Transferee |
11 |
|
4.4 |
Documents
to be Delivered by Parent |
12 |
|
4.5 |
Documents
to be Delivered by Transferee to Transferor |
12 |
|
4.6 |
Post
Closing |
13 |
|
ARTICLE
5 |
REPRESENTATIONS
AND WARRANTIES |
13 |
|
5.1 |
Representations
and Warranties of Transferor |
13 |
|
(a)
Organization and Standing; Power and Authority |
13 | |
|
(b)
Conflicts; Defaults |
13 | |
|
(c)
Acquired Assets; Title to the Acquired Assets |
14 | |
|
(d)
Contracts |
15 | |
|
(e)
Environmental and Safety Compliance |
15 | |
|
(f)
Approvals |
17 | |
|
(g)
Real Property |
17 | |
|
(h)
Lease Agreements |
18 | |
|
5.2 |
Representations
and Warranties of Transferee |
18 |
|
(a)
Organization and Standing; Corporate Power and Authority |
18 | |
|
(b)
Conflicts; Defaults |
18 |
ii
TABLE OF CONTENTS
(continued)
Page
|
5.3 |
Representations
and Warranties of Parent |
19 |
|
(a)
Organization and Standing; Power and Authority |
19 | |
|
(b)
Conflicts; Defaults |
19 | |
|
(c)
Dividend Assets; Title to the Dividend Assets |
19 | |
|
(d)
Approvals |
20 | |
|
ARTICLE
6 |
CONDITIONS
TO CLOSING |
20 |
| 6.1 | Conditions to Transferee's Obligations |
20 |
|
|
(a)
Representations and Warranties |
20 |
|
(b)
Covenants |
20 | |
|
(c)
Consents |
20 | |
|
(d)
No Proceeding or Litigation |
20 | |
|
(e)
Certificate of Transferor and Parent |
20 | |
|
(f) Certificate;
Documents |
20 | |
|
6.2 |
Conditions
to Transferor’s Obligations |
21 |
|
(a)
Representations and Warranties |
21 | |
|
(b)
Covenants |
21 | |
|
(c)
Consents |
21 | |
|
(d)
No Proceeding or Litigation |
21 | |
|
(e)
Certificate of Transferor and Parent |
21 | |
|
(f)
Certificates; Documents |
21 | |
|
6.3 |
Conditions
to Parent’s Obligations |
21 |
|
(a)
Representations and Warranties |
21 | |
|
(b)
Covenants |
21 | |
|
(c)
Consents |
22 | |
|
(d)
No Proceeding or Litigation |
22 | |
|
(e)
Certificate of Transferee and Transferor |
22 | |
|
(f)
Certificates; Documents |
22 | |
|
ARTICLE
7 |
COVENANTS
OF TRANSFEROR |
22 |
|
7.1 |
Conduct
of Business |
22 |
|
ARTICLE
8 |
COVENANTS
OF TRANSFEREE |
22 |
|
8.1 |
Maintenance
of, and Access to, Records |
22 |
|
8.2 |
Closing |
22 |
|
ARTICLE
9 |
CERTAIN
ADDITIONAL COVENANTS |
23 |
|
9.1 |
Expenses;
Transfer Taxes |
23 |
|
9.2 |
Bulk
Transfer Laws |
23 |
|
9.3 |
Regulatory
Approvals |
23 |
|
9.4 |
Employee
Matters |
23 |
iii
TABLE OF CONTENTS
(continued)
Page
|
ARTICLE
10 |
TERMINATION |
23 |
|
10.1 |
Termination |
23 |
|
(a)
Mutual Consent |
23 | |
|
(b)
Court Order |
23 | |
|
(c)
Transferee’s Conditions |
23 | |
|
(d)
Transferor’s Conditions |
24 | |
|
(e)
Parent’s Conditions |
24 | |
|
10.2 |
Effect
of Termination |
24 |
|
ARTICLE
11 |
INDEMNIFICATION |
24 |
|
11.1 |
Indemnification
by Transferee |
24 |
|
(a)
General |
24 | |
|
(b)
Environmental Indemnification |
24 | |
|
11.2 |
Indemnification
by Transferor |
25 |
|
(a)
General |
25 | |
|
(b)
Environmental Indemnification |
25 | |
|
11.3 |
Notice
of Claim; Right to Participate in and Defend Third Party
Claim |
25 |
|
11.4 |
Time
Limitations on Claims for Indemnification |
26 |
|
ARTICLE
12 |
MISCELLANEOUS |
26 |
|
12.1 |
Amendments |
26 |
|
12.2 |
Entire
Agreement |
26 |
|
12.3 |
Governing
Law |
27 |
|
12.4 |
Notices |
27 |
|
12.5 |
Counterparts |
27 |
|
12.6 |
Assignment |
27 |
|
12.7 |
Waivers |
27 |
|
12.8 |
Third
Parties |
28 |
|
12.9 |
Schedules,
Addenda and Exhibits |
28 |
|
12.10 |
Headings |
28 |
|
12.11 |
Certain
Definitions |
28 |
|
12.12 |
Remedies
Not Exclusive |
28 |
|
12.13 |
Gender
and Number |
28 |
iv
THIS
ASSET TRANSFER AGREEMENT (this “Agreement”) dated as of May 2, 2005, by and
among Union Electric Company d/b/a AmerenUE, a Missouri corporation
(“Transferor”), Central Illinois Public Service Company d/b/a AmerenCIPS, an
Illinois corporation (“Transferee”), and Ameren Corporation, a Missouri
corporation (“Parent”).
W
I T N E S S E T H:
WHEREAS,
Parent owns 100% of the common stock of each of Transferor and Transferee;
and
WHEREAS,
Transferor is a public utility company as defined in Section 3-105 of the
Illinois Public Utilities Act (220 ILCS 5/3-105) and is a public utility as
defined in Section 386.020 of the Missouri Public Service Commission Law
(§386.020 RSMo 2000) and presently operates as a vertically integrated electric
generation, transmission and distribution company and as a natural gas
distribution company in the States of Illinois and Missouri; and
WHEREAS,
Transferor owns and operates electric transmission and distribution facilities
and natural gas distribution facilities located in the State of Illinois, which
Facilities (as hereinafter defined) are more fully described in
Sections 1.1(c) and 1.1(d) hereof, for use in its business of transmitting
and distributing electricity and gas (the “Business”); and
WHEREAS,
Transferor desires to transfer to (1) Parent, by way of an in kind dividend, a
portion of, and (2) to Transferee, the remaining portion of, substantially all
of its assets, properties, rights and interests that are used in or related to
the Business that is conducted at the Facilities and located in the State of
Illinois; and
WHEREAS,
Parent desires to contribute that portion of the Business and Facilities
received by it to Transferee and Transferee desires to accept from Parent and
acquire from Transferor, upon the terms and subject to the conditions
hereinafter set forth, in the aggregate substantially all of such assets,
properties, rights and interests of Transferor that are used in or related to
the Business that is conducted at the Facilities; and
WHEREAS,
Transferee desires to execute and deliver to Transferor a subordinated
promissory note in exchange for that portion of the Facilities and Business
transferred directly to Transferee from Transferor.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained and other good and valuable consideration had and received, Parent,
Transferee and Transferor, on the basis of, and in reliance upon, the
representations, warranties, covenants, obligations and agreements set forth in
this Agreement, and upon the terms and subject to the conditions contained
herein, hereby agree as follows:
ARTICLE 1 TRANSFER OF
ASSETS
1.1 Identification
of Assets.
Immediately prior to the Closing (as defined in Section 4.1), Transferor
shall identify in reasonable detail all of the assets, properties, rights
and interests
owned, used, occupied or held by or for the benefit of Transferor that are used
in or related to the operation of the Business at the Facilities, as the same
are expected to exist as of the Closing Date (as defined in Section 4.1)
and as shall be more fully described in a schedule to be delivered by Transferor
to Parent and Transferee or its authorized representatives at the Closing (the
“Schedule”), which Schedule shall specifically enumerate such assets, properties
and rights, including, without limitation, the following:
(a) Inventory. All
inventory, including inventories of products, work-in-process, finished goods,
raw materials, natural gas storage, fuel stock, fuel supplies and parts, which
is located at the Facilities and used in the Business (collectively,
“Inventory”);
(b) Fixed
Assets. All
tangible personal property, plant and equipment including, without limitation,
buildings, structures, substations, transmission lines, distribution facilities,
pipelines, fixtures, machinery and equipment, maintenance machinery and
equipment, vehicles and rolling stock, office furniture and office equipment,
other furnishings, leasehold improvements and construction-in-process, which is
located at the Facilities and used in the Business, including without limitation
plant materials and operating supplies located at the Xxxxx storeroom and truck
stock recorded in Account (as defined in Section 12.11) 154 (collectively,
the “Fixed Assets”);
(c) Real
Property. (i) The
real property rights and interests owned by Transferor and used in or relating
to the operation of the Business in the State of Illinois, (ii) any
easements, rights of way or other interests in real property necessary for the
operation of the Business in Illinois, (iii) all buildings, structures, and
leasehold improvements located at the Facilities and all appurtenances relating
thereto, and (iv) all fixtures, machinery, apparatus or equipment affixed
to said Facilities, including, without limitation, all of the electrical,
heating, plumbing, air conditioning, air compression and all other systems
located on said premises, and all other structures, fences and improvements
(collectively, the “Real Property”);
(d) Leased
Property. All
rights and interests under the lease or license agreements (the “Lease
Agreements”) that relate to the Business that is conducted in the State of
Illinois (the premises subject to the Lease Agreements being hereinafter
collectively referred to as the “Leased Property” and the premises that comprise
the Leased Property and the Real Property being hereinafter collectively
referred to as the “Facilities” or the “Property”; provided, however, that in no
event shall “Facilities” or “Property” be deemed to include any rights or
interests outside the State of Illinois);
(e) Intellectual
Property Rights. Any and
all intellectual property owned or possessed by Transferor and relating to the
Business that is conducted at the Facilities including without limitation,
copyrights, trade secrets, trademarks and patents;
(f) Business
Records. All
books and records that relate to the Business that is conducted at the
Facilities, including, without limitation, all files, invoices, forms, accounts,
2
correspondence,
production records, technical, accounting, manufacturing and procedural manuals,
employment records, studies, reports or summaries relating to any Environmental
Requirements (as defined in Section 5.1(e)), and other books and records
relating to the operation of any of the Acquired Assets (as defined in this
Section 1.1) or other assets or properties
associated with the Business that is conducted at the Facilities, and any
confidential information which has been reduced to writing or other tangible
medium relating to or arising out of the Business that is conducted at the
Facilities (collectively, the “Business Records”);
(g) Contracts. Subject
to Sections 1.4(b) and 1.5, all rights, benefits and interests of
Transferor in and to all licenses, leases, contracts, agreements, commitments
and undertakings relating to the Business that is conducted at the Facilities
(collectively, the “Contracts”);
(h) Permits. All
licenses, permits, approvals, variances, waivers or consents (collectively, the
“Permits”), to the extent transferable, issued by any foreign, United States,
state or local governmental entity or municipality or subdivision thereof or any
authority, department, commission, board, bureau, agency, court or
instrumentality (collectively, “Governmental Authorities”) and used in or
necessary to the operation of the Business that is conducted at the
Facilities;
(i) Insurance. All
rights, claims and benefits of Transferor in, to or under all insurance policies
maintained by Transferor for the Business that is conducted at the Facilities or
for the Acquired Assets;
(j) Rolling
Stock and Vehicles. All
vehicles and rolling stock used in the Business that is conduced at the
Facilities and that is included as part of Fixed Assets;
(k) Xxxxx
Cash. All
xxxxx cash maintained at the East St. Louis, Illinois office of Transferor (the
“Xxxxx Cash”);
(l) Accounts
Receivable. All
accounts receivable of Illinois electric and gas customers recorded in
Account 142 (the “Accounts Receivable”);
(m) Uncollectible
Accounts. The
provision for uncollectible accounts associated with the Accounts
Receivable;
(n) Accrued
Revenues. Accrued
Illinois electric and gas revenues for services not billed at the time of the
transfer contemplated hereby, which are recorded in
Account 173;
(o) Environmental
Cleanup. Amounts
collected for environmental cleanup that are recorded in Account 186;
and
(p) Customer
Deposits.
Customer deposits related to Illinois electric customers that are recorded in
Account 235.
(q) Miscellaneous. Except
for the Retained Assets (as defined in Section 1.4), all other assets,
properties, rights and interests of Transferor otherwise employed in or related
to the operation of the Business at the Facilities, of every kind, nature and
description, whether
3
tangible
or intangible, real, personal or mixed, located in the State of Illinois, all of
which are to be transferred, conveyed, assigned, contributed and delivered to
Transferee at the Closing pursuant to this Agreement.
All of
the assets, properties, rights and interests owned, used, occupied or held by or
for the benefit of the Transferor in the operation of the Business at the
Facilities, which are to be dividended, sold, transferred, conveyed, assigned
and delivered by Transferor at the Closing as contemplated herein, including
without limitation, those described in clauses (a) through (q) above, but
excluding the Retained Assets, are referred to herein collectively as the
“Acquired Assets.”
1.2 Dividend
and Transfer of Assets. At the
Closing, Transferor shall:
(a) transfer,
convey, assign and deliver and pay to Parent by way of an in kind dividend on
its common stock, declared pursuant to a duly adopted resolution of its Board of
Directors, of that portion of the Acquired Assets designated on the Schedule as
subject to such dividend (the “Dividend Assets”); and
(b) transfer,
convey, assign, contribute and deliver to Transferee that portion of the
Acquired Assets designated on the Schedule as subject to such transfer (the
“Transferred Assets”).
The
Dividend Assets and the Transferred Assets shall, in the aggregate, consist of
all the Acquired Assets. The parties agree that the Dividend Assets will
constitute a percentage, based on book value, of all the Acquired Assets and the
Transferred Assets will constitute all of the remainder of the Acquired Assets.
The percentage of Dividend Assets will be determined by Parent immediately prior
to the Closing.
1.3 Contribution
of Assets. At the
Closing, immediately after receipt of the Dividend Assets pursuant to
Transferor’s dividend referred to in Section 1.2 hereof, Parent shall
transfer, convey, assign, and deliver to Transferee by way of a contribution to
capital all of the Dividend Assets.
1.4 Retained
Assets.
Anything in Sections 1.1 through 1.3 to the contrary notwithstanding, the
following assets (collectively, the “Retained Assets”) shall be retained by
Transferor, and neither Parent nor Transferee shall in any way be construed to
have acquired (or to be obligated to acquire) any interest whatsoever in
any of the following, any of which may be more particularly described on the
Schedule:
(a) Designated
Assets. Any of
the assets, properties, rights and/or interests, owned, used, occupied or held
by or for the benefit of Transferor in the operation of the Business (other than
the operation of the Business at the Facilities); provided, however, that
anything in this Agreement to the contrary notwithstanding, the Retained Assets
shall include the Venice and Keokuk electric generating plants and associated
electric transmission facilities, together with minor amounts of miscellaneous
property to ensure the smooth operation of Transferor’s electric
system;
4
(b) Non-Assigned
Contracts. All of
the rights and interests, and all of the liabilities and obligations, of
Transferor in, under or pursuant to any license, lease, contract, agreement,
commitment or undertaking entered into in connection with, or otherwise relating
to, the operation of the Business (other than the operation of the Business at
the Facilities) (collectively, the “Non-Assigned Contracts”);
(c) Employee
Plan Assets. The
rights of Transferor or Parent under, and any funds and property held in trust
or any other funding vehicle pursuant to, any “employee benefit plan” (within
the meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended) or any other bonus, stock option, stock appreciation,
stock purchase, severance, termination, lay-off, leave of absence, disability,
workers’ compensation, pension, profit sharing, retirement, vacation or holiday
pay, insurance, deferred compensation or other employee or welfare benefit plan,
agreement or arrangement of Transferor or Parent applicable to past, present or
future employees employed in connection with the Business (collectively,
“Employee Plans”);
(d) Corporate
Records.
Transferor’s minute books, stock books, stock ledger and corporate seal and all
other books and records relating to the Business of the Transferor;
(e) This
Agreement. All of
Transferor’s rights, claims and interests under this Agreement and any agreement
executed in connection herewith;
(f) Third
Party Actions. All of
Transferor’s rights, claims or causes of action against third parties relating
to the assets, properties, business or operations of the Business that is
conducted at the Facilities to the extent such rights, claims or causes of
action arise in connection with the discharge by Transferor of the Retained
Liabilities (as defined in Section 2.2);
(g) Subsidiaries. The
capital stock of any of Transferor’s direct or indirect, wholly or partially
owned, subsidiaries and their respective assets, properties and
businesses;
(h) Cash
and Cash Equivalents. Except
for the Xxxxx Cash, any cash or cash equivalent of, owned, or held by,
Transferor;
(i) Discontinued
Operations. All
assets, properties, rights and interests in, under or to agreements, instruments
or contracts relating to businesses, operations or assets that immediately prior
to the Closing have been (i) closed, wound up or otherwise terminated or
(ii) ceased to be held or used in connection with Transferor’s businesses
or operations, including the Business that is conducted at the Facilities;
and
(j) Miscellaneous. Those
other certain assets, properties, rights and interests described on the
Schedule.
1.5 Assignability
and Consents.
(a) Required
Consents.
Transferor shall deliver to Parent and Transferee or their authorized
representatives, at or prior to the Closing, a list of (i) Acquired Assets,
including Contracts, Permits and Lease Agreements (but excluding leases of
office equipment involving
5
future
payments of less than $500,000 in the aggregate), that are non-assignable or
non-transferable or cannot be subleased to Transferee without the consent of
some other individual, partnership, corporation, association, joint stock
company, trust, joint venture, limited liability company or Governmental
Authority (collectively, “Person”) and (ii) approvals of Governmental
Authorities, including the Illinois Commerce Commission (the “ICC”),
the
Missouri Public Service Commission, the Federal Energy Regulatory Commission,
the Securities and Exchange Commission
and the Federal Communications Commission that are required for the consummation
of the transactions contemplated by this Agreement. Transferor has commenced and
shall continue to take, or cause to be taken by others, all necessary actions
required to obtain or satisfy, at the earliest practicable date, all consents,
novations, approvals, authorizations, requirements (including filing and
registration requirements), waivers and agreements (“Consents”) from any Persons
necessary to authorize, approve or permit the full and complete conveyance,
assignment, sublease or transfer of the Acquired Assets, and to consummate and
make effective the transactions contemplated by this Agreement and to continue
such efforts as may be required after the Closing Date to facilitate the full
and expeditious transfer of legal title, or the sublease, as the case may be, of
the Acquired Assets.
(b) Nonassignable
Items.
Anything in this Agreement to the contrary notwithstanding, this Agreement shall
not constitute an Agreement to sell, convey, assign, sublease or transfer any
Acquired Assets, including Contracts, Permits and Lease Agreements, if an
attempted conveyance, assignment, sublease or transfer thereof, without the
Consent of another party thereto or a Governmental Authority would constitute a
breach of, or in any way affect the rights of Transferor or Transferee with
respect to such Acquired Asset (“Nonassignable Items”). Transferor shall use its
best efforts and Transferee shall cooperate in all reasonable respects with
Transferor to obtain and satisfy all Consents and to resolve all
impracticalities of conveyance, assignment, sublease or transfer necessary to
convey to Transferee all Nonassignable Items.
ARTICLE
2 LIABILITIES
2.1 Assumption
of Liabilities. On the
terms and subject to the conditions set forth in this Agreement, Transferee
shall assume, at the Closing and effective as of the Closing Date, and shall
thereafter pay, perform and discharge as and when due the following, and only
the following, liabilities and obligations of Transferor (collectively, the
“Assumed Liabilities”):
(a) Balance
Sheet. All
liabilities and obligations of Transferor as set forth on the unaudited balance
sheet (the “Balance Sheet”) relating to the Business that is conducted at the
Facilities prepared by Transferor as of the Closing or other appropriate date
determined by the parties (the “Balance Sheet Date”), including without
limitation any indebtedness to be assumed by Transferee (the “Assumed
Indebtedness”), less payments thereon or discharges thereof prior to the Closing
Date;
(b) Trade
Payables. All
liabilities and obligations of Transferor relating to the Business that is
conducted at the Facilities that constitute trade payables due to suppliers as
payment for Inventory included in the Acquired Assets and incurred by Transferor
in the ordinary
6
and
normal course of business at the Balance Sheet Date (in transactions in the
ordinary and normal course) and consistent with past practice and the
representations, warranties, covenants, obligations and agreements set forth in
this Agreement;
(c) Contracts. All
liabilities and obligations of Transferor arising under the terms of the
Contracts other than contracts that constitute Non-Assigned Contracts but only
to the extent such liabilities and obligations arise or accrue after the Closing
Date in the ordinary and normal course and consistent with the representations,
warranties, covenants, obligations and agreements
set forth in this Agreement; provided, however, that Transferee shall not assume
or be responsible for any such liabilities or obligations which arise from
breaches thereof or defaults thereunder by Transferor, all of which liabilities
and obligations shall constitute Retained Liabilities;
(d) Liabilities
and Obligations. All
liabilities and obligations of Transferor relating to environmental permits,
variances or orders issued by local, state or federal governmental authorities
that relate to the Business that is conducted at the Facilities;
(e) Litigation. All
liabilities and obligations relating to any litigation, action, suit, claim,
notice of violation, investigation, inquiry or proceeding (collectively
“Claims”) instituted hereafter, based in whole or in part on events or
conditions occurring or existing in connection with, or arising out of, or
otherwise relating to, the Business that is conducted at the Facilities as
operated by Transferee or any of its Affiliates (as defined in
Section 12.11) (or any of their respective predecessors-in-interest) after
the date hereof, or the ownership, possession, use, operation, sale or other
disposition after the Closing Date of any of the Acquired Assets (or any
other assets, properties, rights or interests associated, at any time after the
Closing Date, with the Business that is conducted at the Facilities);
and
(f) Environmental
Liabilities. All
liabilities and obligations relating to the Business or the Acquired Assets (or
any other assets, properties, rights or interests associated, at any time after
the Closing Date, with the Business or the Acquired Assets), based in whole or
in part on events or conditions occurring or existing after the Closing Date and
connected with, arising out of or relating to Hazardous Materials, Environmental
Requirements or Environmental Damages (all as defined in Section 5.1(e)), (the
“Assumed Environmental Liabilities”); provided, however, that the Assumed
Environmental Liabilities shall also include (i) the environmental cleanup
liability at the Xxxxx Town Gas Site that is recorded in Account 253 and (ii)
any liabilities and obligations relating to the Business or the Acquired Assets
(or any other assets, properties, rights or interests associated, at any time
prior to the Closing Date, with the Business or the Acquired Assets), based in
whole or in part on events or conditions occurring or existing prior to the
Closing Date and connected with, arising out of or relating to Hazardous
Materials, Environmental Requirements or Environmental Damages, if and to the
extent that such liabilities and obligations are covered by Transferor’s
existing ICC-approved electric and gas environmental adjustment clause riders in
effect immediately prior to the Closing.
(g) Accounts
Payable.
Accounts payable for the amount of natural gas purchased for resale but not yet
paid that are recorded in Account 232.
(h) Accrued
Payroll. Accrued
payroll payables that are recorded in Account 232.
7
(i) Vacation
Liability. Accrued
vacation liabilities for electric and gas employees that are recorded in
Account 242.
(j) Customer
Liabilities. All
liabilities and obligations relating to the Business or the Acquired Assets (or
any other assets, properties, rights or interests associated, at any time prior
to or following the Closing Date, with the Business or the Acquired Assets),
based in whole
or in part on events or conditions occurring or existing prior to or following
the Closing Date and connected with, arising out of or relating to any disputes
for services rendered or goods manufactured that are instituted or maintained by
or in the right of any customer, including without limitation, product warranty
Claims and product liability Claims, and Claims for refunds, returns, personal
injury and property damages.
(k) Taxes. All
liabilities and obligations relating to the Business or the Acquired Assets (or
any other assets, properties, rights or interests associated, at any time prior
to or following the Closing Date, with the Business or the Acquired Assets),
whether due or becoming due and whether based on or arising out of events prior
or subsequent to the Closing Date, relating to the payment of franchise fees,
gross receipts or utility Taxes (as hereinafter defined) of any kind (the
“Assumed Tax Liabilities”).
2.2 Retained
Liabilities. Except
to the extent transferred to Transferee as an Assumed Liability pursuant to
Section 2.1, including without limitation with respect to Assumed Environmental
Liabilities, Transferor shall retain, and Transferee shall not assume, or be
responsible for or liable with respect to, any liabilities or obligations of,
Transferor, or otherwise relating to the Business, whether or not of, associated
with, or arising from, any of the Acquired Assets, and whether fixed, contingent
or otherwise, known or unknown (collectively referred to hereinafter as the
“Retained Liabilities”), including, without limitation, the
following:
(a) Pre-Closing. All
liabilities and obligations relating to, based in whole or in part on events or
conditions occurring or existing in connection with, or arising out of, the
Business as operated prior to the Closing Date, or the ownership, possession,
use, operation or other disposition prior to the Closing Date of any of the
Acquired Assets (or any other assets, properties, rights or interests
associated, at any time prior to the Closing Date, with the
Business);
(b) Liabilities
Relating to the Transfer of Acquired Assets. All
liabilities and obligations of Transferor or any of its Affiliates except
Transferee, or their respective directors, officers, shareholders or agents,
arising out of, or relating to, this Agreement or the transactions contemplated
hereby, whether incurred prior to, at, or subsequent to the Closing
Date;
(c) Employee-Related
Liabilities. All
liabilities and obligations to any persons at any time employed by Transferor or
its Affiliates except Transferee or their respective predecessors-in-interest in
the Business or otherwise, at any time or to any such person’s spouses,
children, other dependents or beneficiaries, with respect to incidents, events,
exposures or circumstances occurring at any time during the period or periods of
any such persons’ employment with Transferor or its Affiliates except Transferee
or their respective predecessors-in-interest, whenever such claims mature or are
asserted, including, without limitation, all liabilities and obligations arising
(i) under any Employee Plans, (ii) under any
8
employment,
wage and hour restriction, equal opportunity, discrimination, plant closing or
immigration and naturalization Laws (as hereinafter defined), (iii) under
any collective bargaining Laws, agreements or arrangements, or (iv) in
connection with any workers’ compensation or any other employee health,
accident, disability or safety claims. For purposes of this Agreement, the term
“Laws” shall mean any statutes, laws, rules, regulations, orders, ordinances,
codes and decrees of Governmental Authorities;
(d) Litigation. All
liabilities and obligations relating to any Claims pending on the date hereof,
or instituted hereafter, based in whole or in part on events or conditions
occurring or existing in connection with, or arising out of, or otherwise
relating to, the Business as operated by Transferor or any of its Affiliates (or
any of their respective predecessors-in-interest) except Transferee, or the
ownership, possession, use, operation, sale or other disposition prior to the
Closing Date of any of the Acquired Assets (or any other assets, properties,
rights or interests associated, at any time prior to the Closing Date, with the
Business);
(e) Product,
Environmental and Safety Liability. All
liabilities and obligations relating to the Business or the Acquired Assets (or
any other assets, properties, rights or interests associated, at any time prior
to the Closing Date, with the Business or the Acquired Assets), based in whole
or in part on events or conditions occurring or existing prior to the Closing
Date and connected with, arising out of or relating to (i) any dispute for
services rendered or goods manufactured, including, without limitation, product
warranty Claims and product liability Claims, and Claims for refunds, returns,
personal injury and property damage, (ii) Hazardous Materials, Environmental
Requirements or Environmental Damages other than liabilities or obligations that
constitute Assumed Environmental Liabilities (the “Non-Assumed Environmental
Liabilities”), (iii) Claims relating to employee health and safety, including
Claims for injury, sickness, disease or death of any Person, or (iv) compliance
with any Laws relating to any of the foregoing;
(f) Taxes. Except
for the Assumed Tax Liabilities, all liabilities and obligations of Transferor
or any of its Affiliates (or any of their respective predecessors-in-interest)
for any Taxes due or becoming due by reason of (i) the conduct of the Business,
or (ii) the ownership, possession, use, operation, purchase, acquisition,
sale or disposition, of any of the Acquired Assets, including, without
limitation, (i) Taxes attributable to the sale of electricity and employee
withholding tax obligations; (ii) Taxes imposed on, or accruing as a result of
the transfer of the Acquired Assets; and (iii) Taxes attributable to, or
resulting from, recapture of depreciation, other tax benefit items, or otherwise
arising from the transactions contemplated by this Agreement. For purposes of
this Agreement, the term “Tax” or “Taxes” means all net income, gross income,
gross receipts, sales, use, ad valorem, personal property, real property,
transfer, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property or windfall profits, taxes,
customs duties or other taxes, fees, assessments or charges of any kind
whatsoever, including without limitation, any assessment which Transferor may
have had the option to pay in installment payments over a period of time which
extends beyond the Closing Date, together with any interest and any penalties,
additions to tax or additional amounts imposed by any taxing authority (domestic
or foreign); and
9
(g) Liabilities
Relating to Retained Assets. All
liabilities and obligations relating to, based in whole or in part on events or
conditions occurring or existing in connection with, or arising out of, any and
all assets, properties, rights and interests which are not being acquired by
Transferee hereunder, including, without limitation, the Retained
Assets.
ARTICLE 3 TRANSFER AND
EXCHANGE
3.1 Payment.
(i) In full
consideration for the transfer of the Transferred Assets, but subject to the
adjustment, if any, required by Section 3.2, at the Closing, Transferee
shall deliver to
Transferor a subordinated promissory note in the form of Exhibit 3.1 hereto (the
“Transferee Note”) in an amount equal to the book value of the Transferred
Assets determined as provided herein.
(b) No amount
shall be paid to Parent in connection with the contribution by Parent of the
Dividend Assets.
3.2 Prorations.
(i)
Transferor and Transferee shall prorate, as of the Closing Date, all real estate
taxes payable with respect to the Real Property (but not including any current
assessments against the Real Property which Transferor is required to have paid
in full prior to the Closing Date as provided under Section 2.2(f)
herein).
(b) Transferee
and Transferor shall use their reasonable best efforts to calculate all
prorations. The credit that Transferee is entitled to receive from Transferor
for the unpaid portion (as of the Closing Date) of the 2004 real estate taxes
shall be referred to herein as the “2004 Real Estate Tax Credit,” and the credit
that Transferee is entitled to receive from Transferor for the 2000 real estate
taxes owed for the period during which Transferor owned the Real Property during
the year 2005 shall be referred to herein as the “2005 Real Estate Tax
Credit.”
ARTICLE 4 CLOSING
4.1 General. As used
in this Agreement, the “Closing” shall mean the time at which Transferor
consummates the assignment, transfer and delivery of the Acquired Assets to
Transferee and Parent and Parent consummates the assignment, transfer and
delivery of the Dividend Assets to Transferee as provided herein by the
execution and delivery by Transferor and Parent of the documents and instruments
referred to in Sections 4.2 and 4.4 against delivery by Transferee of the
documents and payments provided in Sections 3.1 and 4.3, and delivery by
Transferor, Transferee and the other Persons referred to herein of the
additional documents referred to in Section 4.5. In the absence of a prior
termination of this Agreement by one of the parties in accordance with Article
X, the Closing shall take place at the offices of the Parent, One Ameren
Plaza, 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx at 8:00 a.m. on May
2, 2005, or at such other time and place and on such other day as shall be
mutually agreed upon in writing by the parties hereto (the “Closing Date”).
Legal title, equitable title and risk of loss with respect to the Acquired
Assets shall not pass to Transferee until the Acquired Assets are transferred at
the Closing, which transfer, once it has occurred, shall be deemed effective for
tax, accounting and other computational purposes as of the Closing
Date.
10
4.2 Documents
to be Delivered by Transferor. At the
Closing, Transferor shall deliver to Transferee and Parent (unless otherwise
agreed to by the parties):
(a) Copies of
(i) the resolutions of the Boards of Directors of Transferor authorizing
and approving this Agreement and all other transactions and agreements
contemplated hereby, (ii) Transferor’s Articles of Incorporation, and
(iii) Transferor’s Bylaws, all certified by the respective corporate
Secretaries or Assistant Secretaries of Transferor to be true, correct, complete
and in full force and effect and unmodified as of the Closing Date;
(b) Instruments
transferring the Transferred Assets to Transferee and the Dividend Assets to
Parent, in each case, free and clear of any and all liens, equities, Claims,
prior assignments, mortgages, charges, security interests, pledges, conditional
sales contracts, collateral security arrangements and other title retention
arrangements, restrictions (including, in the case of real property, rights of
way, use restrictions, and other variances, reservations or limitations of any
nature) or encumbrances whatsoever (collectively, “Liens”);
(c) Copies of
all Consents to the transfer, assignment or sublease to Transferee or Parent of
each Acquired Asset that requires such Consent, including, without limitation,
orders or approvals of the regulatory bodies referred to in Sections 1.5,
5.1(f) and 9.3 hereof;
(d) The
Officer’s Certificate (as defined in Section 6.1(e)) required by
Sections 6.1(e) and 6.3(e);
(e) Special
Warranty Deeds (the “Deeds”) in recordable form and in form and substance
satisfactory to Parent and Transferee conveying the Real Property to Transferee
or Parent as the case may be, free and clear of all Liens whatsoever except for
Permitted Liens (as defined in Section 5.1(c));
(f) Releases,
including, without limitation, termination statements under the Uniform
Commercial Code (the “UCC”) of any financing statements filed against any
Acquired Assets, evidencing discharge, removal and termination of all Liens to
which the Acquired Assets are subject (other than Liens relating to Assumed
Indebtedness) in connection with any indebtedness described to be discharged by
Closing, which releases shall be effective at or prior to the Closing;
(g) A
Non-Foreign Person Affidavit as required by Section 1445 of the Internal
Revenue Code of 1986, as amended (a “FIRPTA Affidavit”); and
(h) Such
other deeds, endorsements, assignments, affidavits and other good and sufficient
instruments of assignment, conveyance and transfer in form and substance
satisfactory to Transferee, as are required to effectively vest in Transferee or
Parent, as the case may be, good and marketable title in and to all of the
Acquired Assets, free and clear of any and all Liens other than Permitted
Liens.
11
4.3 Documents
to be Delivered by Transferee. At the
Closing, Transferee shall deliver to Transferor and Parent, as applicable
(unless otherwise agreed to by the parties):
(a) A copy of
(i) the resolutions of the Board of Directors of Transferee authorizing and
approving this Agreement and all other transactions and agreements contemplated
hereby, (ii) Transferee’s Articles of Incorporation, and (iii) Transferee’s
Bylaws, all certified by the Secretary or an Assistant Secretary of Transferee
to be true, correct, complete and in full force and effect and unmodified as of
the Closing Date;
(b) The
Officer’s Certificate required by Sections 6.2(e) and 6.3(e);
(c) The
Transferee Note to Transferor, duly executed on behalf of Transferee, and in
substantially the form attached hereto as Exhibit 3.1; and
(d) An
instrument of assumption of the Assumed Liabilities.
4.4 Documents
to be Delivered by Parent. At the
Closing, Parent shall deliver to Transferee and Transferor, as applicable
(unless otherwise agreed to by the parties):
(a) Copies of
(i) the resolutions of the Board of Directors of Parent authorizing and
approving this Agreement and all other transactions and agreements contemplated
hereby, (ii) Parent’s Articles of Incorporation, and (iii) Parent’s Bylaws,
all certified by the respective corporate Secretaries or Assistant Secretaries
of Parent to be true, correct, complete and in full force and effect and
unmodified as of the Closing Date;
(b) Instruments
transferring the Dividend Assets to Transferee free and clear of any and all
Liens;
(c) Copies of
all Consents to the transfer, assignment or sublease to Transferee of each
Dividend Asset that requires such Consent, including, without limitation, orders
or approvals of the regulatory bodies referred to in Sections 1.5, 5.1(f)
and 9.3 hereof;
(d) The
Officer’s Certificate required by Sections 6.1(e) and 6.2(e);
(e) Deeds in
recordable form and in form and substance satisfactory to Transferee conveying
the Real Property to Transferee, free and clear of all Liens whatsoever except
for Permitted Liens;
(f) Releases,
including, without limitation, termination statements under the UCC of any
financing statements filed against any Dividend Assets, evidencing discharge,
removal and termination of all Liens to which the Dividend Assets are subject
(other than Liens relating to Assumed Indebtedness) in connection with any
indebtedness described to be discharged by Closing, which releases shall be
effective at or prior to the Closing;
(g) FIRPTA
Affidavit; and
(h) Such
other deeds, endorsements, assignments, affidavits, and other good and
sufficient instruments of assignment, conveyance and transfer in form and
substance
12
satisfactory
to Transferee, as are required to effectively vest in Transferee good and
marketable title in and to all of the Dividend Assets, free and clear of any and
all Liens other than Permitted Liens.
4.5 Documents
to be Delivered by Transferee and Transferor. At the
Closing, Transferee and Transferor shall execute and deliver:
(a) Easement
Agreements from Transferee to Transferor for each Real Property conveyed by
Transferor to Transferee in a form and substance satisfactory to Transferor;
and
(b) An
assignment of all of Transferor’s right, title and interest to the Leased
Property and assumption of all obligations relating to the same free and clear
of all Liens whatsoever except for the Permitted Liens and otherwise in form and
substance satisfactory to Transferor and Transferee.
4.6 Post
Closing.
(a) Within
60 days after the Closing Date, Transferor shall deliver to Transferee the
Balance Sheet as of the Balance Sheet Date referred to in Section 2.1(a);
(b) Transferee
shall calculate the 2004 Real Estate Tax Credit and the 2005 Real Estate
Credit promptly after the relevant tax bills have been received and shall
deliver such calculation to Transferor. Transferee shall be entitled to deduct
an amount equal to the 2004 Real Estate Tax Credit and 2005 Real Estate Tax
Credit from amounts owed to Transferor under the Transferee Note. Transferor
will, at the request of Transferee, give Transferee a receipt evidencing payment
on the Transferee Note equal to such credits; and
(c) Promptly
upon delivery of the Balance Sheet referred to in Section 4.6(a) the
principal amount of and amortization schedule of the Transferee Note shall be
adjusted, to the extent necessary, to reflect the actual net depreciated book
value of the Transferred Assets as of the Balance Sheet Date. The Transferee
shall execute and deliver a revised Transferee Note as may be necessary to
reflect any such change.
ARTICLE 5 REPRESENTATIONS AND
WARRANTIES
5.1 Representations
and Warranties of Transferor. Subject
only to those exceptions and qualifications listed and described (including an
identification by section reference to the representations and warranties to
which such exceptions and qualifications relate) on the Schedule, Transferor
hereby represents and warrants to Transferee (it being understood that for
purposes of this Article V, the portion of the Acquired Assets comprising the
Dividend Assets will first be dividended to Parent and then contributed to
Transferee) that:
(a) Organization
and Standing; Power and Authority.
Transferor is a corporation duly organized, validly existing and in good
standing under the laws of the State of Missouri, and has full corporate power
and authority to operate the Business, to own or lease the Acquired Assets, to
carry on its Business as now being conducted, and to enter into and perform this
Agreement and the transactions and other agreements and instruments contemplated
by this Agreement. This Agreement and all other agreements and instruments
executed and delivered or to be executed and delivered by Transferor in
connection herewith (collectively, the “Transaction
13
Documents”)
have been, or upon execution thereof will be, duly executed and delivered by
Transferor, as the case may be. This Agreement and the transactions and other
agreements and instruments contemplated hereby have been duly approved by the
Board of Directors of Transferor, and constitute the valid and binding
obligations of Transferor, enforceable in accordance with their respective
terms.
(b) Conflicts;
Defaults. Neither
the execution and delivery of this Agreement and the other agreements and
instruments executed or to be executed in connection herewith by Transferor, nor
the performance by Transferor of the transactions contemplated hereby or
thereby, will (i) violate, conflict with, or constitute a default under, any of
the terms of Transferor’s
Articles of Incorporation or By-Laws, or any provisions of, or result in the
acceleration of any obligation under, any contract, sales commitment, license,
purchase order, security agreement, mortgage, note, deed, lien, lease, agreement
or instrument, including, without limitation, the Contracts, or any order,
judgment or decree, relating to the Business or the Acquired Assets, or by which
Transferor or the Acquired Assets are bound, (ii) result in the creation or
imposition of any Liens or Claims in favor of any third Person or entity upon
any of the Acquired Assets, (iii) violate any Law, statute, judgment, decree,
order, rule or regulation of any Governmental Authority, (iv) constitute an
event which, after notice or lapse of time or both, would result in such
violation, conflict, default, acceleration, or creation or imposition of Liens
or Claims, (v) constitute an event which, after notice or lapse of time or
otherwise would create, or cause to be exercisable or enforceable, any option,
agreement or right of any kind to purchase any of the Acquired Assets. Except as
otherwise provided herein or in the Schedule, no consent, novation, approval,
filing or authorization will be required to be obtained or satisfied for the
continued performance by Transferee following the Closing of any contract,
agreement, commitment or undertaking included in the Acquired Assets. Transferor
is not in violation of or in default under its Articles of Incorporation or
Bylaws, or any provision of any contract, sales commitment, license, purchase
order, security agreement, mortgage, note, deed, lien, lease, agreement or
instrument, including without limitation, the Contracts, or any order, judgment
or decree, relating to the Business or the Acquired Assets, or by which
Transferor or the Acquired Assets is bound, or in the payment of any of
Transferor’s monetary obligations or debts relating to the Business, and there
exists no condition or event which, after notice or lapse of time or both, would
result in any such violation or default.
(c) Acquired
Assets; Title to the Acquired Assets. Except
for the Retained Assets, the Acquired Assets are the only assets, properties,
rights and interests used by Transferor in connection with the Business that is
conducted at the Facilities. The Acquired Assets to be conveyed to Transferee
under this Agreement constitute all of the assets, properties, rights and
interests necessary to conduct the Business at the Facilities in substantially
the same manner as conducted by Transferor prior to the date of this Agreement.
Transferor has good, marketable and exclusive title to, and the valid and
enforceable power and unqualified right to use and transfer to Transferee, each
of the Acquired Assets, and the Acquired Assets are free and clear of all Liens
and Claims of any kind or nature whatsoever, except for Permitted Liens. The
consummation of the transactions contemplated by this Agreement (including,
without limitation, the transfer or assignment of the Acquired Assets, and all
rights and interests therein, to Transferee as contemplated herein) will not
adversely affect such title or rights, or any terms of the applicable agreements
(whether written or oral) evidencing, creating or granting such title or rights.
None of the Acquired Assets are subject to, or held under, any lease, mortgage,
14
security
agreement, conditional sales contract or other title retention agreement, or are
other than in the sole possession and under the sole control of Transferor
except as otherwise provided herein. Transferor has the right under valid and
existing leases to occupy, use or control all properties and assets leased by it
and included in the Acquired Assets. The delivery to Transferee of the
instruments of transfer of ownership contemplated by this Agreement will vest
good, marketable and exclusive title (as to all Acquired Assets owned by
Transferor) or full right to possess and use (as to all Acquired Assets not
owned by Transferor) to the Acquired Assets in Transferee, free and clear of all
Liens and Claims of any kind or nature whatsoever, except for (i) current
real estate Taxes or governmental charges or levies which are a Lien but not yet
due and payable, (ii) Liens disclosed as securing specified liabilities on the
Balance Sheet with respect to which no
default exists, (iii) Liens otherwise disclosed herein or in the Schedule and
(iv) minor imperfections of title, if any, none of which are substantial in
amount, or materially detract from the value or impair the use of the property
subject thereto or the operation of the Business at the Facilities and which
have arisen only in the ordinary and normal course of business consistent with
past practice (the Liens described in clauses (i), (ii), (iii) and (iv) being
collectively referred to herein as “Permitted Liens”).
(d) Contracts.
Transferor has delivered to Transferee or its authorized representatives a
complete list or description of each material Contract.
(e) Environmental
and Safety Compliance.
(i) General.
Transferee agrees that, except as expressly contained in this Agreement, no
representations by or on behalf of Transferor have been made as to the condition
of the Property and Fixed Assets, any restrictions related to the development of
the Property and Fixed Assets, the applicability of any governmental
requirements pertaining to the Property and Fixed Assets, or the suitability of
the Property and Fixed Assets for any purpose whatsoever. Transferor agrees to
assign, transfer or otherwise convey all environmental permits and licenses to
Transferee and to take all necessary steps with the appropriate governmental
authorities to effectuate such transfers. Transferor has delivered to Transferee
list of all applicable permits that are used in the operation of the Business at
the Facilities.
(ii) Definitions.
| (A) |
For
purposes of this Agreement, the term “Hazardous Material” means any
substance: |
| (1) |
the
presence of which requires investigation or remediation under any federal,
state or local statute, regulation, ordinance, order, action, policy or
common law; or |
| (2) |
which
is or has been identified as a potential “hazardous waste,” “hazardous
substance,” pollutant or contaminant under any federal,
|
15
| applicable state or local statute, regulation, rule or ordinance or amendments thereto including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §§ 9601 et seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.); or |
| (3) |
which
is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, reactive, or otherwise hazardous and has been
identified as regulated by any Governmental
Authority. |
| (B) |
For
purposes of this Agreement, the term “Environmental Requirements” means
all applicable Laws, Permits and similar items of all Governmental
Authorities and all applicable judicial, administrative, and regulatory
judgments, decrees, orders, writs or injunctions relating to the
protection of human health or the environment, including, without
limitation: |
| (1) |
All
requirements pertaining to reporting, licensing, permitting,
investigation, and remediation of emissions, discharges, releases, or
threatened releases of Hazardous Materials; |
| (2) |
All
requirements pertaining to the protection of the health and safety of
employees or the public; and |
| (3) |
All
other limitations, restrictions, conditions, standards, prohibitions,
obligations, schedules and timetables contained therein or in any notice
or demand letter issued, entered, promulgated or approved
thereunder. |
| (C) |
For
purposes of this Agreement, the term “Environmental Damages” means any and
all Liabilities (as defined in Section 11.1) which are incurred at
any time as a result of the existence prior to Closing of Hazardous
Material upon, about, beneath the Property or migrating or threatening to
migrate to or from the Property, or the existence of a violation of
Environmental Requirements pertaining to the Property, regardless of
whether the existence of such Hazardous Material or the violation of
Environmental Requirements arose prior to the present ownership or
operation of the Property, and including without
limitation: |
16
| (1) |
Damages
for personal injury, or injury to property or natural resources occurring
upon or off of the Property, foreseeable or unforeseeable, including,
without limitation, lost profits, consequential damages, the cost of
demolition and rebuilding of any improvements on real property, interest
and penalties; |
| (2) |
Fees
incurred for the services of attorneys, consultants, contractors, experts,
laboratories and all other costs incurred in connection with the
investigation or remediation of such Hazardous Materials or violation of
Environmental Requirements including, but not limited to, the preparation
of any feasibility studies or reports or the performance of any cleanup,
remediation, removal, response, abatement, containment, closure,
restoration or monitoring work required by any Governmental Authority, or
reasonably necessary to make full economic use of the Property or any
other property in a manner consistent with its intended use or otherwise
expended in connection with such conditions, and including without
limitation any attorneys’ fees, costs and expenses incurred in enforcing
this Agreement or collecting any sums due
hereunder; |
| (3) |
Liability
to any third Person or Governmental Authority to indemnify such Person or
Governmental Authority for costs expended in connection with the items
referenced in of Section 11.2(b); and |
| (4) |
Diminution
of the value of the Property, and damages for the loss of business and
restriction on the use of or adverse impact on the marketing of rentable
or usable space or of any amenity of the
Property. |
(f) Approvals.
Transferor has delivered to Transferee or its authorized representatives a list
of all Consents that must be obtained or satisfied by Transferor for the
consummation of the transactions contemplated by this Agreement, including,
without limitation, all Consents that must be obtained pursuant to
Section 1.5(a). All Consents prescribed by any Law, or any contract,
agreement, commitment or undertaking, and which must be obtained or satisfied by
Transferor for the consummation of the transactions contemplated by this
Agreement, or for the continued performance by them of their rights and
obligations thereunder, have been, or shall by the Closing have been, made,
obtained and satisfied.
17
(g) Real
Property.
Transferor has delivered to Transferee or its authorized representatives a true,
correct and complete list of all instruments and agreements creating any
interest or right in real property relating to the Business that is conducted at
the Facilities (including all easements, buildings, structures, fixtures and
improvements). True, correct and complete copies of the instruments and
agreements identified in such list have been delivered to Transferee or its
authorized representatives. Each such instrument and agreement is in full force
and effect and is a legal, binding and enforceable obligation of the parties
thereto and no event has occurred which constitutes or, with the giving of
notice or passage of time, or both, would constitute a default or breach
thereunder. Transferor has the right to quiet enjoyment of all real property
subject to Lease Agreements under any such instruments, for the full term of
each such Lease Agreement and any renewal option related thereto. There has been
no disturbance of or challenge to the Transferor’s quiet possession under each
such Lease Agreement, and no leasehold or other interest of Transferor in such
real property is subject to or subordinate to any Liens except Permitted Liens.
Neither the whole nor any portion of any real property leased or occupied by
Transferor has been condemned, requisitioned or otherwise taken by any
Governmental Authority, and, to the best of Transferor’s knowledge, no such
condemnation, requisition or taking is threatened or contemplated. All
buildings, structures, fixtures and appurtenances comprising part of the Real
Properties of Transferor are in good condition and have been well maintained,
normal wear and tear excepted, and there are no material physical or mechanical
defects of the Real Property which would interfere with the ongoing operations
of the Business as currently conducted at the Facilities. All water, sewer, gas
and drainage facilities required by the present use and operation of the Real
Property by Transferor are installed to the property lines of the Real Property,
are all connected and operating pursuant to valid permits, and are adequate to
service the Real Property in accordance with the present use and operation of
the Real Property by Transferor. The Real Property complies with all applicable
Laws and insurance requirements and all zoning, building and other requirements
relating to the use or occupancy of all or any portion of the Real Property.
There are no pending, or to the best of Transferor’s knowledge, contemplated
zoning changes, variances or special zoning agreements affecting or which might
affect the Real Property.
(h) Lease
Agreements. Each of
the Lease Agreements described in Section 1.1(d) has not been modified,
altered, terminated or revoked, and is in full force and effect. Transferor, as
the present tenant under each Lease Agreement, is not in default under, or in
breach of, any of the terms of each Lease Agreement, and there are no existing
facts or conditions which could give rise to any such breach or default, or any
claim against Transferor, under each Lease Agreement. Each of the present
lessors under each respective Lease Agreement is not in default thereunder, or
in breach thereof, and there are no existing facts or conditions which could
give rise to any such breach or default, or any claim against each lessor under
each respective Lease Agreement.
5.2 Representations
and Warranties of Transferee.
Transferee represents and warrants to Transferor and Parent that:
(a) Organization
and Standing; Corporate Power and Authority.
Transferee is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois, and has full corporate power
and authority to make and perform this Agreement, and to perform the
transactions contemplated by this Agreement. This Agreement and all other
18
agreements
and instruments executed and delivered by Transferee in connection herewith have
been duly executed and delivered by Transferee. This Agreement and the
transactions and the Transaction Documents have been duly approved by the Board
of Directors of Transferee (approval of Transferee’s shareholders not being
required), and constitute the valid and binding obligations of Transferee,
enforceable in accordance with their respective terms.
(b) Conflicts;
Defaults. Neither
the execution and delivery of this Agreement by Transferee, nor the performance
of its obligations hereunder, will conflict with or constitute a default under
any of the terms of Transferee’s Articles of Incorporation, as amended, or
Bylaws.
5.3 Representations
and Warranties of Parent. Subject
only to those exceptions and qualifications listed and described (including an
identification by section reference to the representations and warranties to
which such exceptions and qualifications relate) on the Schedule, Parent hereby
represents and warrants to Transferee (it being understood that for purposes of
this Article V, the portion of the Acquired Assets comprising the Dividend
Assets will first be dividended to Parent and then contributed to Transferee)
that:
(a) Organization
and Standing; Power and Authority. Parent
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Missouri, and has full corporate power and authority to
carry on its business as now being conducted, and to enter into and perform this
Agreement and the transactions and other agreements and instruments contemplated
by this Agreement. This Agreement and all other agreements and instruments
executed and delivered or to be executed and delivered by Parent in connection
herewith have been, or upon execution thereof will be, duly executed and
delivered by Parent, as the case may be. This Agreement and the transactions and
other agreements and instruments contemplated hereby have been duly approved by
the Board of Directors of Parent, and constitute the valid and binding
obligations of Parent, enforceable in accordance with their respective
terms.
(b) Conflicts;
Defaults. Neither
the execution and delivery of this Agreement and the other agreements and
instruments executed or to be executed in connection herewith by Parent, nor the
performance by Parent of the transactions contemplated hereby or thereby, will
(i) violate, conflict with, or constitute a default under, any of the terms
of Parent’s Articles of Incorporation or By-Laws, or any provisions of, or
result in the acceleration of any obligation under, any contract, sales
commitment, license, purchase order, security agreement, mortgage, note, deed,
lien, lease, agreement or instrument, including, without limitation, the
Contracts, or any order, judgment or decree, relating to the Business or the
Acquired Assets, or by which Parent or the Dividend Assets are bound, (ii)
result in the creation or imposition of any Liens or Claims in favor of any
third Person or entity upon any of the Dividend Assets, (iii) violate any Law,
statute, judgment, decree, order, rule or regulation of any Governmental
Authority, (iv) constitute an event which, after notice or lapse of time or
both, would result in such violation, conflict, default, acceleration, or
creation or imposition of Liens or Claims, (v) constitute an event which,
after notice or lapse of time or otherwise would create, or cause to be
exercisable or enforceable, any option, agreement or right of any kind to
purchase any of the Dividend Assets. Except as otherwise provided herein or in
the Schedule, no consent, novation, approval, filing or authorization will be
required to be obtained or satisfied for the continued performance by Transferee
following the Closing of any contract, agreement, commitment or undertaking
included in the Dividend Assets.
19
(c) Dividend
Assets; Title to the Dividend Assets. Parent
will immediately transfer to Transferee all Dividend Assets received by Parent
from Transferor. The consummation of the transactions contemplated by this
Agreement (including, without limitation, the transfer or assignment of the
Dividend Assets, and all rights and interests therein, to Transferee as
contemplated herein) will not adversely affect such title or rights, or any
terms of the applicable agreements (whether written or oral) evidencing,
creating or granting such title or rights. The delivery to Transferee of the
instruments of transfer of ownership contemplated by this Agreement will vest
good, marketable and exclusive title (as to all Dividend Assets owned by Parent)
or full right to possess and use (as to all Dividend Assets not owned by Parent)
to the Dividend
Assets in Transferee, free and clear of all Liens and Claims of any kind or
nature whatsoever, except for Permitted Liens.
(d) Approvals. Parent
has delivered to Transferee or its authorized representatives a list of all
Consents that must be obtained or satisfied by Parent for the consummation of
the transactions contemplated by this Agreement, including, without limitation,
all Consents that must be obtained pursuant to Section 1.5(a). All Consents
prescribed by any Law, or any contract, agreement, commitment or undertaking,
and which must be obtained or satisfied by Parent for the consummation of the
transactions contemplated by this Agreement, or for the continued performance by
them of their rights and obligations thereunder, have been, or shall by the
Closing have been, made, obtained and satisfied.
ARTICLE 6 CONDITIONS TO
CLOSING
6.1 Conditions
to Transferee’s Obligations. The
obligation of Transferee to consummate the transactions provided for by this
Agreement is subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, any of which may be waived by Transferee
except for the conditions set forth in subsection (c) (as to Consents of
Governmental Authorities) of this Section 6.1:
(a) Representations
and Warranties. Each of
the representations and warranties of Transferor and Parent made in
Section 5.1 and Section 5.3, respectively, of this Agreement shall be
true and correct in all material respects both on the date hereof and as of the
Closing Date as though made at such time.
(b) Covenants. Each of
Transferor and Parent shall have performed and complied with all covenants and
agreements required to be performed or complied with by it at or prior to the
Closing Date.
(c) Consents. All
Consents of Governmental Authorities and third parties described in
Sections 1.5, 5.1(f) and 9.3 and necessary to consummate the transactions
contemplated hereunder shall have been obtained and satisfied.
(d) No
Proceeding or Litigation. No
litigation, action, suit, investigation, Claim or proceeding challenging the
legality of, or seeking to restrain, prohibit or materially modify, the
transactions provided for in this Agreement shall have been instituted and not
settled or otherwise terminated.
20
(e) Certificate
of Transferor and Parent. At the
Closing, each of Transferor and Parent shall have delivered to Transferee a
certificate (the “Officer’s Certificate”) signed by that party’s President or a
Vice President, and dated the Closing Date, to the effect that to the best of
the knowledge of such officer the conditions specified in Sections 6.1(a),
(b), (c) and (d) have been fulfilled.
(f) Certificate;
Documents.
Transferor, Parent and the other Persons shall have delivered the certificates
and other documents required by Sections 4.2, 4.4 and 4.5.
6.2 Conditions
to Transferor’s Obligations. The
obligations of Transferor to consummate the transactions provided for by this
Agreement are subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, any of which may be waived by Transferor
except for the conditions set forth in subsection (c) of this
Section 6.2:
(a) Representations
and Warranties. Each of
the representations and warranties of Transferee and Parent made in
Section 5.2 and Section 5.3, respectively, of this Agreement shall be
true and correct in all material respects both on the date hereof and as of the
Closing Date as though made at such time.
(b) Covenants.
Transferee and Parent shall have performed and complied with all covenants and
agreements required to be performed or complied with by it at or prior to the
Closing Date.
(c) Consents. All
Consents of Governmental Authorities, including those described in
Sections 1.5, 5.1(f) and 9.3, necessary to consummate the transactions
contemplated hereunder shall have been obtained.
(d) No
Proceeding or Litigation. No
litigation, action, suit, investigation, Claim or proceeding challenging the
legality of, or seeking to restrain, prohibit or materially modify, the
transactions provided for in this Agreement shall have been instituted and not
settled or otherwise terminated.
(e) Certificate
of Transferee and Parent. At the
Closing, each of Parent and Transferee shall have delivered to Transferor an
Officer’s Certificate signed by the President or a Vice President of such party,
and dated the Closing Date, to the effect that to the best of the knowledge of
such officer the conditions specified in Sections 6.2(a), (b), (c) and (d)
have been fulfilled.
(f) Certificates;
Documents.
Transferee, Parent and the other Persons shall have delivered the certificates
and other documents required by Sections 4.3, 4.4 and 4.5.
6.3 Conditions
to Parent’s Obligations. The
obligations of Parent to consummate the transactions provided for by this
Agreement are subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, any of which may be waived by Parent except
for the conditions set forth in subsection (c) of this
Section 6.3:
(a) Representations
and Warranties. Each of
the representations and warranties of Transferor and Transferee made in
Section 5.1 and Section 5.2, respectively, of this
21
Agreement
shall be true and correct in all material respects both on the date hereof and
as of the Closing Date as though made at such time.
(b) Covenants.
Transferee and Transferor shall have performed and complied with all covenants
and agreements required to be performed or complied with by it at or prior to
the Closing Date.
(c) Consents. All
Consents of Governmental Authorities, including those described in
Sections 1.5, 5.1(f) and 9.3, necessary to consummate the transactions
contemplated hereunder shall have been obtained.
(d) No
Proceeding or Litigation. No
litigation, action, suit, investigation, Claim or proceeding challenging the
legality of, or seeking to restrain, prohibit or materially modify, the
transactions provided for in this Agreement shall have been instituted and not
settled or otherwise terminated.
(e) Certificate
of Transferee and Transferor. At the
Closing, each of Transferor and Transferee shall have delivered to Parent an
Officer’s Certificate signed by the President or a Vice President of such party,
and dated the Closing Date, to the effect that to the best of the knowledge of
such officer the conditions specified in Sections 6.3(a), (b), (c) and (d)
have been fulfilled.
(f) Certificates;
Documents.
Transferee, Transferor and the other Persons shall have delivered the
certificates and other documents required by Sections 4.2, 4.3 and
4.5.
ARTICLE
7
COVENANTS OF TRANSFEROR
7.1 Conduct
of Business. During
the period from the date hereof through the Closing Date, Transferor shall
conduct the Business at the Facilities and operate the Acquired Assets
diligently and in the ordinary and normal course and consistent with past
practice (including, without limitation, using its best efforts to preserve
beneficial relationships between Transferor and its distributors, agents,
lessors, suppliers and customers) and continue normal maintenance, marketing,
advertising, distributional and promotional expenditures in connection with the
Business that is conducted at the Facilities. Transferor shall engage in no
transactions in connection with the Business that is conducted at the Facilities
or the Acquired Assets, including transactions relating to the purchase or sale
of goods, raw materials, inventories or other operating or production items,
intracorporate or otherwise, with any of its Affiliates from the date hereof
until the Closing other than (a) transactions approved by Transferee; or
(b) transactions on terms no more favorable to Transferor or its Affiliates
than would have been obtainable in arm’s-length dealing.
ARTICLE
8
COVENANTS OF TRANSFEREE
8.1 Maintenance
of, and Access to, Records. From
and after the Closing, Transferee shall, whenever reasonably requested by
Transferor, permit Transferor to have access to such Business Records turned
over to Transferee pursuant to this Agreement as may be required by Transferor
in connection with any audit or investigation by any Governmental Authority, or
any matter relating to insurance coverage or third party Claims, in each such
case to the extent
22
relating
to the operation of the Business at the Facilities by Transferor prior to the
Closing. Transferee shall preserve and maintain the records relating to the
Business that is conducted at the Facilities which are part of the Acquired
Assets for at least three years after the Closing Date.
8.2 Closing. Each of
Transferee and Transferor and Parent, as applicable, shall use its best efforts
to cause the conditions set forth in Sections 6.1, 6.2 and 6.3 to be
satisfied by the Closing Date.
ARTICLE
9
CERTAIN ADDITIONAL COVENANTS
9.1 Expenses;
Transfer Taxes. Each
party hereto will bear the legal, accounting and other expenses incurred by such
party in connection with the negotiation, preparation and execution of this
Agreement, the Transaction Documents, and the transactions contemplated hereby.
All sales, transfer, recordation and documentary Taxes and fees which may be
payable in connection with the transactions contemplated by this Agreement shall
be borne by Transferor.
9.2 Bulk
Transfer Laws.
Transferee hereby waives compliance by Transferor with the laws of any
jurisdiction relating to bulk transfers which may be applicable in connection
with the transfer of the Acquired Assets to Transferee.
9.3 Regulatory
Approvals.
Transferor will, and will cause its appropriate Affiliates to, and Transferee
will, use, in each case, its best efforts to obtain any authorizations,
consents, orders and approvals of any Governmental Authority necessary for the
performance of its respective obligations pursuant to this Agreement and any of
the other Transaction Documents, and the consummation of the transactions
contemplated hereby and thereby, and will cooperate fully with each other in all
reasonable respects in promptly seeking to obtain such authorizations, consents,
orders and approvals.
9.4 Employee
Matters.
Transferor shall retain all liabilities and obligations in respect of its past,
present and future employees. Provided, however, that Transferee shall hire a
sufficient number of non-supervisory employees to operate and maintain the Metro
East operations by initially making offers of employment to Transferor’s current
Metro East non-supervisory workforce at no less than the wage rates, and
substantially equivalent fringe benefits and terms and conditions of employment
that are in effect at the time that transfer of ownership occurs and that said
wage rates and substantially equivalent fringe benefits and terms and conditions
of employment shall continue for at least 30 months from the time of said
transfer of ownership. Transferor shall offer a transition plan to those
employees who are not offered jobs by Transferee in the event that Transferee
has a need for fewer workers.
ARTICLE
10 TERMINATION
10.1 Termination. This
Agreement and the transactions contemplated hereby may be terminated at any time
prior to the Closing (any such date upon which this Agreement is terminated
pursuant to this Article X shall be referred to herein as the “Termination
Date”):
(a) Mutual
Consent. By
mutual written consent of Parent, Transferor and Transferee;
23
(b) Court
Order. By
Transferor, Transferee or Parent if consummation of the transactions
contemplated hereby shall violate any non-appealable final order, decree or
judgment of any court or Governmental Authority having competent
jurisdiction;
(c) Transferee’s
Conditions. By
Transferee, if any condition precedent to Transferee’s obligation to effect the
Closing as set forth in Section 6.1 is not satisfied, or shall have
become incapable of fulfillment, and such condition is not waived, if waivable,
by Transferee on or prior to the Termination Date; and
(d) Transferor’s
Conditions. By
Transferor, if any condition precedent to Transferor’s obligation to effect the
Closing as set forth in Section 6.2 is not satisfied, or shall have become
incapable of fulfillment, and such condition is not waived, if waivable, by
Transferor on or prior to the Termination Date.
(e) Parent’s
Conditions. By
Parent, if any condition precedent to Parent’s obligation to effect the Closing
as set forth in Section 6.3 is not satisfied, or shall have become
incapable of fulfillment, and such condition is not waived, if waivable, by
Parent on or prior to the Termination Date.
10.2 Effect
of Termination. If this
Agreement is terminated pursuant to Section 10.1, written notice thereof
shall forthwith be given to the other party and this Agreement shall thereafter
become void and have no further force and effect and all further obligations of
Transferor and Transferee under this Agreement shall terminate without further
liability of Transferor or Transferee.
ARTICLE
11 INDEMNIFICATION
11.1 Indemnification
by Transferee.
(a) General. From and
after the Closing, Transferee shall indemnify, defend and hold each of
Transferor and Parent, their respective Affiliates, and their respective
directors, officers, representatives, employees and agents, as the case may be,
harmless from and against any and all claims, actions, suits, demands,
assessments, judgments, losses, liabilities, damages, costs and expenses
(including, without limitation, interest, penalties, attorneys’ fees to the
extent permitted by law, and accounting fees and investigation costs)
(collectively, “Liabilities”) that may be incurred by Transferor or Parent, as
the case may be, resulting or arising from or related to, or incurred in
connection with: (a) the failure of Transferee to assume, pay, perform and
discharge the Assumed Liabilities, and (b) any breach of any representation,
warranty, covenant, obligation or agreement of Transferee contained herein or in
any other Transaction Document.
(b) Environmental
Indemnification.
Transferee agrees to indemnify, defend, reimburse and hold harmless Transferor
and Parent, their respective Affiliates and their respective directors,
officers, representatives, employees and agents, as the case may be, from and
against any and all Assumed Environmental Liabilities. This obligation to
indemnify shall include, but not be limited to, the expense of defending all
Claims, suits and administrative proceedings (with counsel reasonably approved
by the indemnified parties), even if such Claims, suits or proceedings are
groundless, false or fraudulent, and paying and discharging, when and as the
same become due, any and all judgments, penalties or other sums due against such
24
indemnified
Persons; provided, however, that Transferee will be entitled to control any
clean-up or remediation, and any related proceeding, and, except as provided in
the following sentence, any other proceeding with respect to which indemnity may
be sought under this Section. The procedures described in Section 11.3
shall apply to any Claim solely for monetary damages relating to a matter
covered by this Section.
11.2 Indemnification
by Transferor.
(a) General. From
and after the Closing, Transferor shall indemnify, defend and hold Transferee
and Parent, their respective Affiliates, and their respective directors,
officers, representatives, employees and agents, as the case may be, harmless
from and against any and all Liabilities that may be incurred by Transferee or
Parent, as the case may be, resulting or arising from, related to or incurred in
connection with: (i) the failure of Transferor to assume, pay, perform and
discharge the Retained Liabilities and (ii) any breach of any representation,
warranty, covenant, obligation or agreement of Transferor contained herein or in
any other Transaction Document.
(b) Environmental
Indemnification.
Transferor agrees to indemnify, defend, reimburse and hold harmless Transferee
and Parent, their respective Affiliates and their respective directors,
officers, representatives, employees and agents, as the case may be, from and
against any and all Non-Assumed Environmental Liabilities. This obligation to
indemnify shall include, but not be limited to, the expense of defending all
Claims, suits and administrative proceedings (with counsel reasonably approved
by the indemnified parties), even if such Claims, suits or proceedings are
groundless, false or fraudulent, and paying and discharging, when and as the
same become due, any and all judgments, penalties or other sums due against such
indemnified Persons; provided, however, that Transferor will be entitled to
control any clean-up or remediation, and any related proceeding, and, except as
provided in the following sentence, any other proceeding with respect to which
indemnity may be sought under this Section. The procedures described in
Section 11.3 shall apply to any Claim solely for monetary damages relating
to a matter covered by this Section.
11.3 Notice
of Claim; Right to Participate in and Defend Third Party Claim.
(a) If any
indemnified party receives notice of the assertion of any Claim, the
commencement of any suit, action or proceeding, or the imposition of any penalty
or assessment by a third party in respect of which indemnity may be sought
hereunder (a “Third Party Claim”), and the indemnified party intends to seek
indemnity hereunder, then the indemnified party shall promptly provide the
indemnifying party with prompt written notice of the Third Party Claim, but in
any event not later than 30 calendar days after receipt of such notice of Third
Party Claim. The failure by an indemnified party to notify an indemnifying party
of a Third Party Claim shall not relieve the indemnifying party of any
indemnification responsibility under this Article XI, unless such failure
materially prejudices the ability of the indemnifying party to defend such Third
Party Claim.
(b) The
indemnifying party shall have the right to control the defense, compromise or
settlement of the Third Party Claim with its own counsel (reasonably
satisfactory to the indemnified party) if the indemnifying party delivers
written notice to the indemnified
25
party
within seven days following the indemnifying party’s receipt of notice of the
Third Party Claim from the indemnified party acknowledging its obligations to
indemnify the indemnified party with respect to such Third Party Claim in
accordance with this Article XI, and establishes security in form and substance
reasonably satisfactory to the indemnified party to secure the indemnifying
party’s obligations under this Article XI with respect to such Third Party
Claim; provided, however, that the indemnifying party shall not enter into any
settlement of any Third Party Claim which would impose or create any obligation
or any financial or other liability on the part of the indemnified party if such
liability or obligation (i) requires more than the payment of a liquidated sum,
or (ii) is not covered by the indemnification provided to the indemnified party
hereunder. In its defense, compromise or settlement of any Third Party Claim,
the indemnifying party shall timely provide the indemnified party with such
information with respect to such defense, compromise or settlement as the
indemnified party shall request, and shall not assume any position or take any
action that would impose an obligation of any kind on, or restrict the actions
of, the indemnified party. The indemnified party shall be entitled (at the
indemnified party’s expense) to participate in the defense by the indemnifying
party of any Third Party Claim with its own counsel.
(c) In the
event that the indemnifying party does not undertake the defense, compromise or
settlement of a Third Party Claim in accordance with subsection (b) of
this Section 11.3, the indemnified party shall have the right to control
the defense or settlement of such Third Party Claim with counsel of its
choosing; provided, however, that the indemnified party shall not settle or
compromise any Third Party Claim without the indemnifying party’s prior written
consent, unless (i) the terms of such settlement or compromise release the
indemnified party or the indemnifying party from any and all liability with
respect to the Third Party Claim, or (ii) the indemnifying party shall not have
acknowledged its obligations to indemnify the indemnified party with respect to
such Third Party Claim in accordance with this Article XI and established
security in form and substance reasonably satisfactory to the indemnified party
to secure the indemnifying party’s obligations under this Article XI with
respect to such Third Party Claim. The indemnifying party shall be entitled (at
the indemnifying party’s expense) to participate in the defense of any Third
Party Claim with its own counsel.
(d) Any
indemnifiable Claim hereunder that is not a Third Party Claim shall be asserted
by the indemnified party by promptly delivering notice thereof to the
indemnifying party. If the indemnifying party does not respond to such notice
within 60 days after its receipt, it shall have no further right to contest the
validity of such Claim.
11.4 Time
Limitations on Claims for Indemnification. The
right of Transferee, Transferor or Parent to indemnification for any breach of
any representation or warranty shall apply only to those claims for
indemnification which are given pursuant to this Agreement on or before the date
which is five years following the Closing Date.
ARTICLE
12 MISCELLANEOUS
12.1 Amendments. This
Agreement may be amended only by a writing executed by each of the parties
hereto.
26
12.2 Entire
Agreement. This
Agreement and the other agreements expressly provided for herein, set forth the
entire understanding of the parties hereto with respect to the subject matter
hereof, and supersede all prior contracts, agreements, arrangements,
communications, discussions, representations and warranties, whether oral or
written, between the parties.
12.3 Governing
Law. This
Agreement shall in all respects be governed by and construed in accordance with
the laws of the State of Illinois, without regard to its conflicts of law
doctrine.
12.4 Notices. Any
notice, request or other communication required or permitted hereunder shall be
in writing and shall be deemed to have been duly given (a) when received if
personally delivered, (b) within 5 days after being sent by registered or
certified mail, return receipt requested, postage prepaid, (c) within 12
hours after being sent by telecopy, with confirmed answerback, or
(d) within 1 business day of being sent by priority delivery by established
overnight courier, in each case to the address set forth below.
If to
Transferor, at:
Union
Electric Company
0000
Xxxxxxxx Xxxxxx
Xx.
Xxxxx, Xxxxxxxx 00000
Attention:
Vice President
If to
Transferee, at:
Central
Illinois Public Service Company
000 Xxxx Xxxxx
Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx
00000
Attention:
Vice President
If to
Parent, at:
Ameren
Corporation
0000 Xxxxxxxx
Xxxxxx
Xx. Xxxxx,
Xxxxxxxx 00000
Attention:
President
Any party
by written notice to the other given in accordance with this Section 12.4
may change the address or the contact to whom notices or copies thereof shall be
directed.
12.5 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which together will constitute one and the
same instrument.
12.6 Assignment. This
Agreement shall be binding upon and inure to the benefit of the successors and
assigns of each party hereto, but no rights, obligations or liabilities
hereunder shall be assignable by either party without the prior written consent
of the other party.
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12.7 Waivers. Except
as otherwise provided herein, Parent, Transferee or Transferor (acting on behalf
of itself and its appropriate Affiliates), may waive in writing compliance by
any of the other party hereto (to the extent such compliance is for the benefit
of the party giving such waiver) with any of the terms, covenants or conditions
contained in this Agreement or in any of the other Transaction Documents (except
such as may be imposed by law). Any waiver by either party of
any violation of, breach of, or default under, any provision of this Agreement
or any of the other Transaction Documents, by the other party shall not be
construed as, or constitute, a continuing waiver of such provision, or waiver of
any other violation of, breach of or default under any other provision of this
Agreement or any of the other Transaction Documents.
12.8 Third
Parties. Nothing
expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any Person or entity other than Parent, Transferee and
Transferor any rights or remedies under or by reason of this
Agreement.
12.9 Schedules,
Addenda and Exhibits. The
Schedule, Addenda and Exhibits attached to this Agreement are incorporated
herein and shall be part of this Agreement for all purposes.
12.10 Headings. The
headings in this Agreement are solely for convenience of reference and shall not
be given any effect in the construction or interpretation of this
Agreement.
12.11 Certain
Definitions. For
purposes of this Agreement, (a) the term “Affiliate” shall mean any Person
that directly, or indirectly through one or more Persons, controls, is
controlled by, or is under common control with, the Person specified or,
directly or indirectly, is related to or otherwise associated with any such
Person or entity and (b) references to an “Account” that are followed by a
three-digit number shall mean Transferor’s accounting entries identified by the
applicable number.
12.12 Remedies
Not Exclusive. No
remedy conferred by any of the specific provisions of this Agreement is intended
to be exclusive of any other remedy and each remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or hereafter existing
at law or in equity or by statute or otherwise. No remedy shall be deemed to be
a limitation on the amount or measure of damages resulting from any breach of
this Agreement. The election of any one or more remedies shall not constitute a
waiver of the right to pursue other available remedies.
12.13 Gender
and Number. The
masculine, feminine or neuter gender and the singular or plural number shall
each be deemed to include the others whenever the context so
indicates.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have caused their duly authorized representatives
to execute this Agreement as of the date first above written.
| UNION ELECTRIC
COMPANY d/b/a AMEREN UE, a Missouri corporation | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |
|
Xxxxxx X. Xxxxxxxxxx | ||
| Vice President | ||
| CENTRAL ILLINOIS
PUBLIC SERVICE COMPANY d/b/a AMEREN CIPS, an Illinois corporation | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxxx | |
|
Xxxxx X. Xxxxxxxx | ||
| Vice President and Treasurer | ||
| AMEREN
CORPORATION, a Missouri corporation | ||
| |
|
|
| By: | /s/ Warner X. Xxxxxx | |
|
Xxxxxx X. Xxxxxx | ||
| Executive Vice President and Chief
Financial Officer | ||
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