EXHIBIT 10.5d
PURCHASE AND SALE AGREEMENT
for the
SEABROOK NUCLEAR POWER STATION
by and among
NORTH ATLANTIC ENERGY CORPORATION,
THE UNITED ILLUMINATING COMPANY,
GREAT BAY POWER CORPORATION,
NEW ENGLAND POWER COMPANY,
THE CONNECTICUT LIGHT AND POWER COMPANY,
CANAL ELECTRIC COMPANY,
LITTLE BAY POWER CORPORATION,
and
NEW HAMPSHIRE ELECTRIC COOPERATIVE, INC.
as Sellers
and
NORTH ATLANTIC ENERGY SERVICE CORPORATION
and
FPL ENERGY SEABROOK, LLC
as Buyer
dated
April 13, 2002
TABLE OF CONTENTS
PAGE
1. Preamble.........................................................1
2. Acquisition of Assets by Buyer...................................2
2.1. Purchase and Sale of Assets.............................2
2.2. Excluded Assets.........................................6
2.3. Assumption of Liabilities...............................7
2.4. Liabilities Not Assumed.................................9
2.5. Consideration for Acquired Assets......................11
2.6. Adjustment to Facility Purchase Price and Fuel
Purchase Price......................................12
2.7. Payment of Purchase Price Adjustments..................16
2.8. Allocation of Consideration............................16
2.9. Proration..............................................17
2.10. The Closings...........................................18
2.11. Deliveries by the Sellers at the Closings..............18
2.12. Deliveries by the Buyer at the Closing Date............22
3. Representations, Warranties and Disclaimers of Each Seller......25
3.1. Organization...........................................25
3.2. Authorization, Execution and Enforceability of
Transactions........................................25
3.3. Noncontravention.......................................26
3.4. Consents and Approvals.................................26
3.5. Regulation as a Utility................................26
3.6. Brokers' Fees..........................................27
3.7. Title to Acquired Assets...............................27
3.8. Qualified Decommissioning Funds........................27
3.9. Nonqualified Decommissioning Funds.....................30
3.10. Absence of Certain Changes or Events...................31
3.11. Legal and Other Compliance.............................31
3.12. Taxes..................................................31
3.13. Contracts and Leases...................................31
3.14. Insurance..............................................33
3.15. Litigation.............................................33
3.16. Employees..............................................33
3.17. Environmental Matters..................................34
3.18. Condemnation...........................................34
3.19. Intellectual Property..................................34
3.20. Accounting Methods.....................................35
3.21. Complete Copies........................................35
3.22. Operability............................................35
3.23. Employee Benefit Programs..............................35
3.24. Zoning.................................................36
3.25. Real Property; Plant and Equipment.....................36
3.26. Disclaimers Regarding Acquired Assets..................36
4. Representations and Warranties of the Buyer.....................37
4.1. Organization of the Buyer..............................37
4.2. Authority, Execution and Enforceability of
Transactions.........................................37
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TABLE OF CONTENTS
(CONTINUED)
PAGE
4.3. Noncontravention.......................................38
4.4. Consents and Approvals.................................38
4.5. Brokers' Fees..........................................38
4.6. Litigation.............................................38
4.7. No Knowledge of Seller's Breach........................39
4.8. Qualified Buyer........................................39
4.9. WARN Act...............................................39
4.10. No Implied Warranties..................................39
4.11. Absence of Certain Events..............................39
4.12. Availability of Funds..................................39
5. Covenants.......................................................40
5.1. General................................................40
5.2. Notices, Consents and Approvals........................40
5.3. Operation of Business During Interim Period............43
5.4. Access and Investigations During Interim Period........46
5.5. Certain Notices........................................48
5.6. Further Assurances.....................................49
5.7. Employee Matters.......................................51
5.8. Cooperation after Initial Closing Date.................54
5.9. NEPOOL.................................................58
5.10. Funding of the Decommissioning Trusts..................58
5.11. Risk of Loss...........................................61
5.12. Discharge of Environmental Liabilities.................63
5.13. Nuclear Insurance......................................63
5.14. Nonwaiver of Third Party Environmental Liabilities.....63
5.15. Control of Litigation..................................64
5.16. Availability of Funds..................................64
5.17. Department of Energy Decontamination and
Decommissioning Fees................................64
5.18. Cooperation Relating to Insurance and Xxxxx-Xxxxxxxx
Act.................................................64
5.19. Acceptable Credit Support..............................65
5.20. Private Letter Ruling Requests.........................65
5.21. Credit Rating of Acceptable Guarantor and Issuing Bank.66
5.22. NRC Commitments........................................66
5.23. Decommissioning and Funding Assurance..................66
5.24. Joint Ownership Agreement, Managing Agent Operating
Agreement and Disbursing Agent Agreement............66
5.25. Memorandum of Understanding with the Town of Seabrook..66
6. Conditions Precedent to Obligation to Close.....................67
6.1. Conditions Precedent to Obligation of the Buyer to
Close...............................................67
6.2. Conditions Precedent to Obligation of the Sellers
to Close............................................70
6.3. Initial and Subsequent Closings........................71
7. Confidentiality.................................................73
8. Taxes...........................................................75
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TABLE OF CONTENTS
(CONTINUED)
PAGE
9. Non-Survival; Effect of Closing and Indemnification.............76
9.1. Survival of Representation and Warranties; Survival
of Covenants and Agreements..........................76
9.2. Effect of Closing......................................76
9.3. Indemnity by Sellers...................................77
9.4. Indemnity by Buyer.....................................78
9.5. Exclusive and Limited Remedies.........................79
9.6. Notice; Defense of Claims..............................79
9.7. Net of Taxes and Insurance.............................81
9.8. Release................................................81
9.9. No Recourse............................................82
10. Termination....................................................82
10.1. Termination of Agreement...............................82
10.2. Effect of Termination..................................86
11. Miscellaneous...................................................87
11.1. Press Releases and Public Announcements................87
11.2. No Third Party Beneficiaries...........................87
11.3. Appointment of Seller Representatives as Agent
for Sellers..........................................87
11.4. No Joint Venture.......................................88
11.5. Time of the Essence....................................88
11.6. Entire Agreement.......................................88
11.7. Succession and Assignment..............................88
11.8. Counterparts...........................................89
11.9. Headings...............................................89
11.10. Notices................................................89
11.11. Governing Law..........................................92
11.12. Change in Law..........................................92
11.13. Consent to Jurisdiction and Venue......................93
11.14. Amendments and Waivers.................................93
11.15. Severability...........................................93
11.16. Expenses 93
11.17. Construction...........................................93
11.18. Incorporation of Exhibits and Schedules................93
11.19. Specific Performance...................................94
11.20. Dispute Negotiation....................................94
11.21. Good Faith Covenant....................................94
11.22. Set-Off................................................94
11.23. Bulk Transfer Act......................................94
12. Dispute Resolution..............................................95
13. Definitions.....................................................95
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Exhibits
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A(i) - Form of Quitclaim Deed for NAEC Real Property
A(ii) - Form of Quitclaim Deed for Jointly Owned Real Property
B - Form of Xxxx of Sale
C - Form of Asset Demarcation Agreement
D - Form of Assignment and Assumption Agreement
E - Form of Interconnection Agreement
F - Form of Release of Mortgage Indenture
G - Form of FIRPTA Affidavit
H - Form of Acceptable Guaranty**
I - Reserved
J - Form of Interim Services Agreement
K - Form of Owner Trustee Deed and Xxxx of Sale
L - Reserved
M - Form of Easement Agreement
N - Form of Agreement to Amend Transmission Support Agreement
Schedules
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Schedule 1(a) - Sellers' Ownership Shares
Schedule 2.1(a)(i) - NAEC Real Property
Schedule 2.1(a)(ii) - Jointly Owned Real Property
Schedule 2.1(a)(iii)(A),
2.1(a)(iii)(B) - Permitted Encumbrances
Schedule 2.1(b) - Nuclear Materials, Spent Nuclear Fuel and
Other High Level and Low Level Waste
Schedule 2.1(c) - Personal Property
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Schedule 2.1(d) - Unit 2
Schedule 2.1(e) - Leases
Schedule 2.1(f) - Transferable Permits
Schedule 2.1(g) - Material Contracts
Schedule 2.1(l) - Nuclear Fuel
Schedule 2.1(m) - Decommissioning Funds
Schedule 2.1(n)(i) - Emergency Preparedness Assets
Schedule 2.1(n)(ii) - Emergency Preparedness Agreements
Schedule 2.1(o) - Vehicles
Schedule 2.1(q) - Owned Intellectual Property
Schedule 2.1(r) - Nuclear Insurance Policies
Schedule 2.1(s) - Agreements for the Sale of Capacity or Energy
Schedule 2.1(v) - Other Related Assets
Schedule 2.1(w) - Emission Reduction Credits
Schedule 2.1(x) - Licensed Intellectual Property
Schedule 2.1(y) - 345 kV Substation
Schedule 2.2(c) - Rights to Sellers' Names
Schedule 2.4(m) - Pollution Control Bonds
Schedule 2.5(b)(i) - Facility Purchase Price Allocation
Schedule 2.5(b)(ii) - Fuel Purchase Price Allocation
Schedule 2.5(b)(iii) - Unit 2 Purchase Price Allocation
Schedule 2.6(a)(x) - Transmission Credit
Schedule 2.11(a)(viii) - Interim Services
Schedule 2.11(a)(xvi) - Matters for Opinion from Counsel to Required
Sellers on Initial Closing Date
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Schedule 2.11(b)(x) - Matters for Opinion from Counsel to Remaining
Seller(s) on Subsequent Closing Date(s)
Schedule 2.12 - Matters for Opinion from Counsel to Buyer
Schedule 3.1(i) - Proportionate Ownership
Schedule 3.1(ii) - Organization Under Order of Governmental
Authority
Schedule 3.2 - Authorization, Execution and Enforceability
of Transactions
Schedule 3.3 - Matters of Contravention
Schedule 3.5(i) - Regulation as a Utility
Schedule 3.5(ii) - Regulation Under PUHCA
Schedule 3.5(iii) - Regulation by FERC; NRC
Schedule 3.5(iv) - Qualification for First Refusal Rights
Exemption Under Joint Ownership Agreement
Schedule 3.7(i) - Title Commitments
Schedule 3.8 - Qualified Decommissioning Funds
Schedule 3.9 - Nonqualified Decommissioning Funds
Schedule 3.10 - Certain Changes or Events
Schedule 3.11(i) - Compliance with Laws
Schedule 3.11(ii) - Other Permits
Schedule 3.11(iii) - Reporting Compliance
Schedule 3.11(iv) - NRC Commitments
Schedule 3.13(d) - Capacity or Energy Non-Assigned Contracts
Schedule 3.13(e) - Restrictions on Transfer, Options and Other
Rights
Schedule 3.14 - Insurance
Schedule 3.15 - Litigation
Schedule 3.16 - Labor Matters
Schedule 3.17 - Environmental
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Schedule 3.18 - Condemnation
Schedule 3.19 - Intellectual Property
Schedule 3.21 - Complete Copies
Schedule 3.22 - Operability
Schedule 3.25 - Conformance with Technical Specifications
Schedule 4.3 - Matters of Contravention
Schedule 5.3 - Pre-Approved Capital Expenditures
Schedule 5.3(a)(iv) - Nuclear Fuel Expenditures
Schedule 5.7(a) - Represented Plant Employees
Schedule 5.7(b)(i) - Non-Represented Plant Employees
Schedule 5.7(b)(ii) - Severance Benefits
Schedule 5.7(b)(iii) - Certain Acquired Assets Employee Benefits and
Severance
Schedule 5.7(c)(iv) - Pension Benefits
Schedule 5.7(d) - Employee Benefits Packages
Schedule 5.8(d) - Pollution Control Facilities
Schedule 5.18 - Insurance and Xxxxx-Xxxxxxxx Act
Schedule 6.1(c) - Buyer Regulatory Approvals
Schedule 6.2(c) - Seller Regulatory Approvals
Schedule 6.2(n) - Seller Shareholder Approval
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PURCHASE AND SALE AGREEMENT
1. PREAMBLE.
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This Purchase and Sale Agreement (the "Agreement") is entered into on
April 13, 2002, by and among FPL Energy Seabrook, LLC, a Delaware limited
liability company (the "Buyer"), North Atlantic Energy Corporation, a New
Hampshire corporation ("NAEC"), The United Illuminating Company, a Connecticut
corporation ("UI"), Great Bay Power Corporation, a New Hampshire corporation
("GBP"), New England Power Company, a Massachusetts corporation ("NEP"), The
Connecticut Light and Power Company, a Connecticut corporation ("CL&P"), Canal
Electric Company, a Massachusetts corporation ("Canal"), Little Bay Power
Corporation, a New Hampshire corporation ("LBP") and New Hampshire Electric
Cooperative, Inc., a New Hampshire electric cooperative ("NHEC") (NAEC, UI, GBP,
NEP, CL&P, Canal, LBP and NHEC are each individually referred to herein as a
"Seller" and are referred to collectively herein as "Sellers") and North
Atlantic Energy Service Corporation ("NAESCO"). Each of the Sellers and the
Buyer are referred to herein as a "Party" or, collectively, as the "Parties."
Terms used herein in capitalized form shall have the meanings ascribed to them
in Section 13 hereof or as otherwise set forth in this Agreement.
WHEREAS, each Seller owns, as a tenant-in-common, and, in the case of
the Undivided Interest (as hereinafter defined), UI leases, in the percentage
set forth on Schedule 1(a) hereto, an undivided ownership interest in the
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Facility (as hereinafter defined) located at Seabrook Station ("Seabrook"), in
Seabrook, New Hampshire, and certain other facilities and assets associated
therewith and ancillary thereto, excepting the portion thereof consisting of the
real property that is owned solely by NAEC (as described in Section 2.1(a)(i)
below);
WHEREAS, the Sellers (other than the Seller Representatives) have
appointed the Seller Representatives (as hereinafter defined) to act as their
agents under this Agreement for purposes of certain of the covenants and
agreements contained herein;
WHEREAS, NAESCO manages the Facility for the Participants in accordance
with the Managing Agent Operating Agreement, and, for that reason, the Sellers
have requested and NAESCO has agreed to join in this Agreement solely for the
purpose of providing certain representations and warranties to the Buyer as
described in Sections 3 and 11.24 hereof, subject in all respects to the terms
and conditions herein, and NAESCO shall not be deemed a Party to this Agreement
for any other purpose; and
WHEREAS, the Buyer desires to purchase and assume, and the Sellers
desire to sell and assign, or cause to be sold or assigned, the Acquired Assets
(as defined in Section 2.1 below) and certain associated liabilities upon the
Initial Closing and each Subsequent Closing as more fully described herein, upon
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
2. ACQUISITION OF ASSETS BY BUYER.
-------------------------------
2.1. Purchase and Sale of Assets. Upon the terms and subject to the
-----------------------------
satisfaction of the conditions contained in this Agreement at the Initial
Closing and each Subsequent Closing, each of the Required Sellers or the
Remaining Sellers, as the case may be, shall sell, assign, convey, transfer and
deliver or cause to be sold, assigned, conveyed, transferred and delivered to
the Buyer, and the Buyer shall purchase, assume and acquire, free and clear of
any Lien (except for Permitted Encumbrances), Sellers' Ownership Shares in the
properties and assets to the extent constituting, or to the extent used in the
operation of, the Facility, including but not limited to the following (the
"Acquired Assets"):
(a) (i) the real property which is owned solely by NAEC, easements
and other rights in real property as described in Schedule 2.1(a)(i) and all
------------------
rights arising out of the ownership thereof or appurtenant thereto, including,
without limitation, all related rights of ingress and egress (the "NAEC Real
Property"), subject to the Permitted Encumbrances, including the matters set
forth in Schedule 2.1(a)(iii)(A), and (ii) the real property (other than the
-----------------------
NAEC Real Property), Improvements thereon and Improvements on the NAEC Real
Property, easements and other rights in real property described in
Schedule 2.1(a)(ii), and all rights arising out of the ownership thereof or
------------------
appurtenant thereto, including, without limitation, all related rights of
ingress and egress (the "Jointly Owned Real Property"), subject to the
Permitted Encumbrances, including the matters set forth in
Schedule 2.1(a)(iii)(B) (the NAEC Real Property and the Jointly Owned Real
-----------------------
Property are referred to together as the "Real Property");
(b) all Nuclear Materials, Spent Nuclear Fuel and other High Level
Waste to which the Sellers have title on the Initial Closing Date, all of which
are identified on Schedule 2.1(b) (which shall be updated as of the Initial
---------------
Closing Date and each Subsequent Closing Date) and all Low Level Waste,
including without limitation, those items which are identified by type and
amount on Schedule 2.1(b) (which shall be updated as of the Initial Closing Date
---------------
and each Subsequent Closing Date);
(c) all machinery, mobile or otherwise, equipment, computer hardware
and software, communications equipment, tools, spare parts, fixtures, furniture,
furnishings, and other personal property owned by the Sellers and which is
principally used in or principally relates to the operation or maintenance of
the Facility, and the Inventories owned by the Sellers which are held at or are
in transit from or to the Site, including, without limitation, the items of
personal property set forth in Schedule 2.1(c), as well as all applicable
----------------
warranties and guaranties existing as of such Closing Date from Third Parties
relating thereto to the extent such warranties and guaranties are transferable
to the Buyer, or to the extent any such items are leased, an assignment of the
applicable leases for such items (as well as all applicable warranties and
guaranties existing as of such Closing Date from Third Parties relating thereto
to the extent transferable to the Buyer);
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(d) all assets associated with Seabrook Unit 2, including without
limitation, the structures, equipment, components and parts, wherever located,
that were purchased for Unit 2 and not sold, transferred or disposed of prior
to the Initial Closing, to the extent owned by the Sellers as set forth in
Schedule 2.1(d) ("Unit 2");
--------------
(e) all of the Sellers' rights with respect to leasehold interests
and subleases and rights thereunder to the extent relating to the Real Property,
including, without limitation, with respect to the leases or Leased Property,
those items which are set forth in Schedule 2.1(e) (the "Leases");
---------------
(f) all Permits, which, as of such Closing Date, are transferable by
the Sellers to the Buyer by assignment or otherwise (including, without
limitation, upon request or application to a Governmental Authority, or which
will pass to the Buyer as successor in title to the Acquired Assets by operation
of Law), including, without limitation, those Permits set forth in
Schedule 2.1(f) (the "Transferable Permits");
---------------
(g) except as specifically provided in Section 2.2(h), all rights of
the Sellers under the contracts, agreements, purchase orders, the Joint
Ownership Agreement, the Disbursing Agent Agreement, the DOE Standard Contract
(including all rights to any claims of Sellers related to DOE defaults
thereunder), the Nuclear Fuel Contracts, the Transmission Support Agreement, the
Memorandum of Understanding with the Town of Seabrook, and personal property
leases to the extent relating to the operation of the Facility set forth in
Schedule 2.1(g) and, to the extent transferable to the Buyer, all warranties and
--------------
guaranties existing as of such Closing Date from Third Parties relating to the
Acquired Assets (the "Material Contracts");
(h) to the extent permitted by applicable Law, and as promptly as
practicable after such Closing and at such locations and in such form (hard
copy, magnetic or electronic) as shall be agreed upon, all documents,
correspondence, books, records, medical records, operating, safety and
maintenance manuals, inspection reports, drawings, models, engineering designs,
blueprints, as-built plans, specifications, procedures, studies, reports,
quality assurance records, purchasing records and equipment repair data, safety,
maintenance or service records relating to the design, construction, licensing,
regulation, operation or Decommissioning of the Facility and the other Acquired
Assets, wherever located, including, without limitation, all drawings, designs,
specifications and other documents owned by a Third Party and licensed to
Sellers which are used in or necessary to the licensing, operation or
Decommissioning of the Facility;
(i) to the extent permitted by applicable Law, all Acquired Assets
Employee Records;
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(j) all rights of the Sellers in and to the words "Seabrook Station"
and any related or similar trade name, trademark, service xxxx, copyright,
corporate name, logo or any part, derivative or combination;
(k) all assignable right, title and interest of the Sellers to the
NRC Licenses;
(l) all right, title and interest of the Sellers on the Initial
Closing Date and each Subsequent Closing Date in Nuclear Fuel wherever located,
as described on Schedule 2.1(l) (which shall be updated as of the Initial
Closing Date and each Subsequent Closing Date);
(m) all of the Sellers' right, title and interest in the assets
comprising the Decommissioning Funds as of such Closing Date, including,
without limitation, those items identified on Schedule 2.1(m), including all
income, interest and earnings accrued thereon, together with all related tax
accounting and other records;
(n) without limiting the generality of Sections 2.1(a) and 2.1(c),
all rights of the Sellers in the property and assets used or usable in providing
emergency warning or associated with emergency preparedness as set forth in
Schedule 2.1(n)(i) (the "Emergency Preparedness Assets") and all rights of the
------------------
Sellers under the contracts and agreements associated with such emergency
preparedness as set forth in Schedule 2.1(n)(ii) (the "Emergency Preparedness
-------------------
Agreements");
(o) all right, title and interest of the Sellers in the vehicles set
forth in Schedule 2.1(o) (the "Vehicles");
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(p) all assignable rights, benefits and interest of the Sellers as of
such Closing Date under purchase orders, licenses or contracts that are not
Emergency Preparedness Agreements, Material Contracts, Intellectual Property
Licenses or Leases but that (i) relate to the operation of the Facility, (ii)
are identified in writing by the Parties between the Effective Date and such
Closing Date, and (iii) are set forth in a schedule to be attached to the
Assignment and Assumption Agreement at such Closing (the "Other Assigned
Contracts");
(q) all Owned Intellectual Property; provided that the Buyer shall
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grant to the Sellers an irrevocable, perpetual and fully paid-up license for
the Sellers and their agents to use, copy, modify and create derivative works
based upon and grant sublicenses to their Affiliates to such Owned Intellectual
Property in connection with the operation of Sellers' and their Affiliates'
business and the electric power generation stations or plants operated by the
Sellers and their Affiliates; provided, further, that each Party shall have no
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obligation after the relevant Closing Date to provide the other Parties with
any updates, maintenance or technical support with respect to such Intellectual
Property;
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(r) to the extent transferable, all Nuclear Insurance Policies set
forth in Schedule 2.1(r) and the rights to proceeds from insurance policies for
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coverage of Acquired Assets and Assumed Liabilities, including all rights to
collect premium refunds made on or after the relevant Closing Date pursuant to
the ANI nuclear industry credit rating plan (other than refunds that relate to
premiums paid prior to such Closing Date);
(s) all contracts, instruments or other agreements set forth in
Schedule 2.1(s) relating to the sale by the Sellers of electric capacity,
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energy or ancillary products or services from the Facility under wholesale
rates or otherwise subject to regulation by the FERC;
(t) the Sellers' claims, rights or causes of action against any Third
Parties to the extent arising out of or relating to Sellers' right, title and
interest in and to any of the Acquired Assets or the Assumed Liabilities or any
portion thereof, whether received as a payment or credit against future
liabilities, including, without limitation, insurance proceeds, condemnation
awards and cash payments under warranties covering the Acquired Assets to the
extent such payments relate to Assumed Liabilities or the Acquired Assets;
(u) the Sellers' interests in the escrow account established in
accordance with the Memorandum of Understanding with the Town of Seabrook;
(v) all other assets of the Sellers to the extent constituting, or
used or held for use in the operation of, the Facility, as set forth on
Schedule 2.1(v), as amended by the Parties pursuant to Section 5.6 (the "Other
---------------
Related Assets");
(w) all emission reduction credits owned by the Sellers that relate
to the operation of the Facility, as set forth in Schedule 2.1(w);
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(x) an assignment of all Intellectual Property Licenses, as set forth
in Schedule 2.1(x), including any related maintenance agreements for Licensed
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Intellectual Property, to the extent assignable to the Buyer on commercially
reasonable terms, as described in Section 5.2(b)(iv);
(y) the property comprising or constituting the 345 kV Substation
located at the Site (notwithstanding how such properties are treated for
regulatory or accounting purposes and whether such assets are real or personal
property) as set forth in Schedule 2.1(y) and as shown in the drawing referenced
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therein, as well as all Permits and contracts that relate to the 345 kV
Substation;
(z) with respect to the portion of UI's Ownership Share which
consists of a leasehold interest in the Undivided Interest, UI agrees to
exercise its rights under Section 14(a) and (b) of the Facility Lease and the
Termination Agreement to cause the Facility Lease to be
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terminated and to cause the Owner Trustee to sell, assign, convey, transfer and
deliver the Undivided Interest to the Buyer; and
(aa) any other properties or assets constituting or used in the
operation of the Facility that are not specifically identified in Section 2.2
hereof.
2.2. EXCLUDED ASSETS. Notwithstanding anything to the contrary in this
---------------
Agreement, there shall be excluded from the Acquired Assets to be sold,
assigned, transferred, conveyed or delivered to the Buyer hereunder, and there
shall be retained by the Sellers, any and all right, title and interest to the
following assets, properties and rights (collectively, the "Excluded Assets"):
(a) all Cash, accounts and notes receivable, checkbooks and canceled
checks, bank deposits and property or income tax receivables or any other Tax
refunds to the extent allocable to a period ending prior to the relevant Closing
Date (including, without limitation, the Sellers' account balances with XXXX
and any future annual distributions from XXXX that relate to premiums paid by
the Sellers prior to such Closing Date), except the assets comprising the
Decommissioning Funds;
(b) all rights of the Sellers in and to any causes of action, claims
and defenses against Third Parties to the extent arising out of or relating to
any of the Excluded Assets or Excluded Liabilities, whether payable in Cash or
as a credit against future liabilities, including, without limitation, insurance
proceeds and condemnation awards, claims for contribution or indemnity, tort
claims, causes of action, contract rights and refunds accrued and owing as of
the relevant Closing Date;
(c) all rights of the Sellers to the words set forth in
Schedule 2.2(c) and any related or similar trade name, trademark, service xxxx,
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copyright, corporate name, logo or any part, derivative or combination;
(d) all rights of the Sellers under any Material Contract, Lease,
Intellectual Property License or Other Assigned Contract to the extent expressly
providing the Sellers with indemnity, defense or exculpation rights for any
claims for which the Sellers remain liable under Section 9;
(e) any and all of the Sellers' rights in any contract representing
an intercompany transaction between a Seller and an Affiliate of such Seller,
whether or not such transaction relates to the provision of goods and services,
payment arrangements, intercompany charges or balances, or the like;
(f) any Seller Easements to the extent granted to PSNH prior to the
Initial Closing Date pursuant to an Easement Agreement; (g) all rights, benefits
and interest in all purchase orders, licenses or contracts not included in
Acquired Assets and not assigned to the Buyer (the "Non-Assigned Contracts");
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(g) all rights, benefits and interest in all purchase orders,
licenses or contracts not included in Acquired Assets and not assigned to the
Buyer (the "Non-Assigned Contracts");
(h) all rights of NEP and PSNH to receive payments under the
Transmission Support Agreement.
2.3. ASSUMPTION OF LIABILITIES. On the terms and subject to the
-------------------------
conditions set forth herein, on and after the Initial Closing Date and each
Subsequent Closing Date, the Buyer shall assume, satisfy or perform the
Liabilities attributable to the respective Ownership Shares of the Required
Sellers or the Remaining Sellers participating in such Closing, in each case, in
respect of, or otherwise arising from the operation or use of the Acquired
Assets, other than the Excluded Liabilities (as set forth in Section 2.4 below)
(the "Assumed Liabilities"):
(a) all Environmental Liabilities, other than those included in the
Excluded Liabilities (as set forth in Section 2.4);
(b) except as specifically provided in Sections 2.4(p) and 2.4(q),
all Liabilities under (i) the Material Contracts, Leases, Other Assigned
Contracts, Emergency Preparedness Agreements, Intellectual Property Licenses,
the Transferable Permits and any employment contracts with NAESCO employees,
all in accordance with the terms thereof, except in each case, to the extent
such Liabilities, but for a breach or default by any Seller, would have been
paid, performed or otherwise discharged prior to such Closing Date, or to the
extent the same arise out of any such breach or default and (ii) the contracts,
leases, commitments and other agreements entered into by the Sellers with
respect to the Acquired Assets prior to the final Subsequent Closing pursuant
to the terms of this Agreement;
(c) all Liabilities in respect of or otherwise arising from the
Permitted Encumbrances which do not result from a default or failure to act
under the Permitted Encumbrances by the Sellers prior to the Initial Closing
Date; provided, however, Permitted Encumbrances as to which a Seller's liability
-------- -------
terminates as a matter of law upon such Seller's sale of its interest in the
Real Property shall not be Assumed Liabilities;
(d) with respect to the Acquired Assets, any Tax that may be imposed
by any federal, state or local government on the ownership, sale, operation or
use of the Acquired Assets on or after such Closing Date, and any Liability to
make payments in addition to or in lieu of property taxes, but not any Income
Taxes attributable to income received by the Sellers or any New Hampshire
Business Enterprise Taxes to which any of the Sellers may be subject prior to
such Closing Date;
(e) all Liabilities in respect of (i) the Decommissioning of the
Facility, (ii) the management, storage, transportation and disposal of Spent
Nuclear Fuel (including, without
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limitation, all fees payable to DOE under the DOE Standard Contracts accrued
after the relevant Closing Date) and Low Level Waste, and (iii) any other
decommissioning or post-operative disposition of the Facility or any other
Acquired Assets;
(f) any Liability for any Xxxxx-Xxxxxxxx secondary financial
protection retrospective premium obligations for (i) the Sellers' nuclear worker
Liability attributable to employment prior to such Closing Date or (ii) any
third-party Nuclear Liability arising out of any nuclear incident prior to such
Closing Date (it being agreed that if the Sellers are unable to cause the
assignment of all or any part of such retrospective premium obligations, the
Sellers shall remain primarily liable for such indemnification obligations and
the Buyer shall indemnify the Sellers therefor pursuant to Section 9.4);
(g) all Liabilities of the Sellers for retrospective premium
obligations under the Sellers' XXXX accounts arising out of any occurrence
prior to such Closing Date;
(h) all Liabilities arising under or relating to Nuclear Laws or
relating to any claim in respect of Nuclear Material arising out of the
ownership or operation of the Acquired Assets whether occurring prior to, on or
after such Closing Date, including liabilities or obligations arising out of or
resulting from exposure to radiation, an "extraordinary nuclear occurrence,"
"nuclear incident" or "precautionary evacuation" (as such terms are defined in
the Atomic Energy Act) at the Site, or any other licensed nuclear reactor site
in the United States, including, without limitation, liability for any deferred
premiums assessed in connection with such an extraordinary nuclear occurrence,
a nuclear incident or precautionary evacuation under any applicable NRC or
industry retrospective rating plan or insurance policy, including any mutual
insurance pools established in compliance with the requirements imposed under
Section 170 of the Atomic Energy Act, 10 C.F.R. Part 140, and
10 C.F.R. Paragraph 50.54(w);
(i) except as otherwise specifically addressed in this Section 2.3,
-----------
all Liabilities accruing after such Closing Date arising under NRC Regulations
or the NRC Licenses including fees or charges;
(j) all other Liabilities expressly allocated to or assumed by the
Buyer in this Agreement or in any of the Related Agreements;
(k) all Liabilities under incentive compensation programs to the
extent applicable to employees of NAESCO or any Affiliate who are employed at
Seabrook; and
(l) all other Liabilities of any nature whatsoever to the extent
arising from the ownership or operation of the Facility, Acquired Assets and
Assumed Liabilities, unless expressly excluded pursuant to Section 2.4.
-8-
2.4. LIABILITIES NOT ASSUMED. Notwithstanding any provision hereof to
-----------------------
the contrary, the Buyer shall not assume, satisfy or perform any of the
following Liabilities (the "Excluded Liabilities"):
(a) any Liability to the extent such Liability is in respect of, in
connection with, or otherwise arising from the operation or use of the Excluded
Assets or any other assets of the Sellers that are not Acquired Assets;
(b) any Liability including, without limitation, any Environmental
Liability, to the extent such Liability is in respect of, in connection with,
or arising from the Seller Easements;
(c) any Liabilities, including, without limitation, any Environmental
Liabilities, to the extent relating to the off-Site disposal, storage,
transportation, discharge, Release, recycling, or the arrangement for such
activities of Hazardous Substances that were generated at the Site, at any
Offsite Hazardous Substance Facility or at a location other than the Site (other
than as a result of subsurface migration from the Site), where the initial
disposal, storage, transportation, discharge, Release or recycling of such
Hazardous Substances at such Offsite Hazardous Substance Facility occurred on or
prior to the Initial Closing Date;
(d) any Liability of the Sellers to the extent arising from the
execution, delivery or performance of this Agreement or a Related Agreement or
the transactions contemplated hereby or thereby;
(e) any Liability in respect of Taxes to the extent attributable to
the Acquired Assets accrued prior to the relevant Closing Date, except those
Taxes expressly allocated to the Buyer pursuant to Section 8;
(f) subject to the provisions of Section 5.7, any Liability, whether
funded or unfunded, to the extent arising out of any Employee Benefit Plan
established or maintained in whole or in part by any Seller (or its Affiliate)
or to which any Seller (or its Affiliate) contributes or contributed, or is or
was required to contribute, at any time prior to the Initial Closing Date and
any Liability for the termination or discontinuance of, or any Seller's or its
Affiliates' withdrawal from, any such Employee Benefit Plan;
(g) any Liabilities of any Seller or any of its Affiliates for any
compensation or any benefits whether in relation to any of the Plant Employees,
independent contractors or any other individuals who are later determined by a
court or governmental agency to have been employees of a Seller or its
Affiliates, including, without limitation, (i) wages, bonuses, incentive
compensation, shift or work schedule adders, on-call pay, call-out pay,
vacation pay, sick pay, paid time off, workers compensation, unemployment
compensation, withholding obligations,
-9-
unemployment taxes or similar obligations accruing or related to work performed
prior to the Initial Closing Date; (ii) severance pay, other termination pay,
post-retirement benefits and COBRA coverage, accruing or related to work
performed prior to the Initial Closing Date; or (iii) any other form of
compensation or benefits accruing or related to work performed prior to
the Initial Closing Date under the terms or provisions of any Employee Benefit
Plan of any Seller or such Affiliate, or any other agreement, plan, practice,
policy, instrument or document relating to any of the Acquired Assets Employees,
other than the Liabilities expressly assumed by the Buyer under Section 5.7;
(h) with respect to the Acquired Assets Employees or any independent
contractors, or other individuals subject to Section 5.7, except for liabilities
under any employment contracts with NAESCO employees relating to periods on and
after the Closing Date, which Liabilities are assumed only to the extent set
forth in Section 2.3(b), any Liabilities or obligations relating to the
employment or termination of employment, including personal injury, tort,
discrimination (including claims for whistleblowing under the Atomic Energy Act
and the Energy Reorganization Act of 1974 as amended, as well as claims under
Title VII of the Civil Rights Act of 1964, as amended, Executive Order 11246,
the Age Discrimination in Employment Act, as amended, the Americans with
Disabilities Act, and/or any other federal, state or local statute, ordinance,
regulation or order prohibiting discrimination or requiring affirmative action),
wrongful discharge, breach of implied or express contract, unfair labor
practices or any claim asserted in an individual employee grievance procedure,
or constructive termination by any Seller or its Affiliate of any individual, or
similar claim or cause of action attributable to any action or inaction by any
Seller or any of its Affiliates that arise out of wrongful acts or omissions,
occurring prior to the Initial Closing Date or such later date as the individual
may have commenced employment with Buyer pursuant to Section 5.7(a) or (b);
provided that the Sellers shall not have any liability for similar actions or
--------
inactions by any other Person on or after the Initial Closing Date or such later
date as the individual shall have commenced employment with the Buyer;
(i) any Liabilities of Sellers to the extent accrued or related to or
attributable to the period prior to the Initial Closing Date under any contract,
license, Permit or other instrument relating to the Acquired Assets (including,
without limitation, the Leases, Emergency Preparedness Agreements and Other
Assigned Contracts, the Material Contracts and the NRC Licenses);
(j) all Liabilities for assessments for decommissioning and
decontamination fund fees accrued and payable under 42 U.S.C. Section 2297g-1
prior to the Initial Closing Date;
(k) any Liabilities, including, without limitation, any Environmental
Liabilities, resulting from any illegal acts or willful misconduct of the
Sellers or NAESCO or their employees, agents or contractors, occurring prior to
the Initial Closing Date;
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(l) all Liabilities for fees payable to DOE under the DOE Standard
Contracts accrued or related to electricity generated and sold prior to the
Initial Closing Date, and interest accrued thereon as set forth in Article VIII
of the DOE Standard Contracts;
(m) any Liabilities to the extent relating to the Business Finance
Authority of the State of New Hampshire Pollution Control Revenue Bonds (as set
forth in Schedule 2.4(m), the "Pollution Control Bonds") and any agreements
---------------
relating thereto, other than those arising out of the breach by the Buyer of the
covenants contained in Section 5.8(d);
(n) any Liens on the Acquired Assets, except for Permitted
Encumbrances;
(o) except as otherwise expressly set forth in this Agreement, any
other Liability, obligation, claim, action, complaint, debt, suit, cause of
action, investigation, or proceeding of any kind whatsoever asserted by any
Third Party, against or relating to any of the Buyer, the Sellers or the
Acquired Assets, for damages suffered by such Third Party arising from or
relating to the use, ownership or lease of the Acquired Assets or operation of
the Facility prior to the Initial Closing Date;
(p) all Liabilities of NEP and PSNH under the Transmission Support
Agreement, except for NEP's transmission support payment obligations; and
(q) the escrow account contribution obligation of each Seller under
the Unit 2 Memorandum of Understanding with the Town of Seabrook; and
(r) any Liability which is required to be accrued in accordance with
GAAP by any Seller on the balance sheet of such Seller as of the Initial Closing
Date or a Subsequent Closing Date, as the case may be, , other than those
Liabilities which are specifically identified as Assumed Liabilities in
Section 2.3.
2.5. CONSIDERATION FOR ACQUIRED ASSETS.
---------------------------------
(a) FACILITY PURCHASE PRICE; FUEL PURCHASE PRICE; UNIT 2 PURCHASE
-------------------------------------------------------------
PRICE; NAEC REAL PROPERTY PURCHASE PRICE. Subject to the satisfaction or waiver
----------------------------------------
of all conditions contained herein, the Buyer shall pay to each Seller based on
its Proportionate Ownership (i) for the Sellers' Ownership Shares in the
Acquired Assets (other than Nuclear Fuel, Unit 2 and the NAEC Real Property), an
aggregate of $746,710,000 (the "Facility Purchase Price"), (ii) for the Sellers'
Ownership Shares in Nuclear Fuel, an aggregate of $61,900,000 (the "Fuel
Purchase Price"), and (iii) for the Sellers' Ownership Shares in Unit 2, an
aggregate of $25,600,000 (the "Unit 2 Purchase Price"). The Buyer shall pay to
NAEC for the NAEC Real Property the amount of $2,400,000 (the "NAEC Real
Property Purchase Price").
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(b) PAYMENT OF PURCHASE PRICE. At each Closing the Buyer shall pay
-------------------------
to or at the direction of each of the Required Sellers or the Remaining Sellers,
as the case may be, (i) for the Acquired Assets other than Nuclear Fuel, Unit 2
and the NAEC Real Property, a payment in immediately available funds equal to
the Proportionate Ownership of the Facility Purchase Price for such Sellers
participating in such Closing (the "Relevant Facility Purchase Price") allocated
among the Required Sellers or the Remaining Sellers, as the case may be, as set
forth in Schedule 2.5(b)(i), (ii) for the Nuclear Fuel, a payment in immediately
------------------
available funds equal to the Proportionate Ownership of the Fuel Purchase Price
for such Sellers participating in such Closing (the "Relevant Fuel Purchase
Price") allocated among the Required Sellers or the Remaining Sellers, as the
case may be, as set forth in Schedule 2.5(b)(ii), and (iii) for Xxxx 0, a
-------------------
payment in immediately available funds equal to the Proportionate Ownership of
the Unit 2 Purchase Price for such Sellers participating in such Closing (the
"Relevant Xxxx 0 Xxxxxxxx Xxxxx") allocated among the Required Sellers or the
Remaining Sellers, as the case may be, as set forth in Schedule 2.5(b)(iii). At
--------------------
the Closing at which NAEC transfers its Ownership Share to the Buyer, the Buyer
shall pay to NAEC for the NAEC Real Property, a payment in immediately available
funds equal to the NAEC Real Property Purchase Price.
(c) ACCEPTABLE GUARANTY. On the Effective Date, the Buyer shall
-------------------
deliver to the Seller Representatives, on behalf of and for the benefit of the
Sellers, an Acceptable Guaranty and shall, pursuant to Section 5.19, maintain
such Acceptable Guaranty to secure the payments of the Facility Purchase Price,
the Fuel Purchase Price, the Unit 2 Purchase Price and the NAEC Real Property
Purchase Price through the last Subsequent Closing.
2.6. ADJUSTMENT TO FACILITY PURCHASE PRICE, FUEL PURCHASE PRICE AND UNIT 2
---------------------------------------------------------------------
PURCHASE PRICE. The Facility Purchase Price, Fuel Purchase Price and Unit 2
--------------
Purchase Price shall be increased or decreased as follows:
(a) FACILITY PAYMENT ADJUSTMENTS. With respect to the Buyer,
----------------------------
(i) at each Closing, the Relevant Facility Purchase Price shall
be increased by an amount equal to the costs of Required Nuclear
Expenditures and Required Expenditures actually paid by such Sellers
participating in such Closing through the relevant Closing Date;
(ii) at the Initial Closing, the Facility Purchase Price shall
be decreased by an amount equal to the positive difference between the
aggregate amount of Pre-Approved Capital Expenditures scheduled to be
expended prior to the Initial Closing Date (as set forth in Schedule 5.3)
------------
and the aggregate amount of the Pre-Approved Capital Expenditures actually
incurred by Sellers prior to the Initial Closing Date;
(iii) at each Subsequent Closing, the Relevant Facility Purchase
Price shall be increased by an amount equal to the aggregate amount of the
Pre-Approved Capital Expenditures (as set forth in Schedule 5.3) incurred
------------
after the Initial Closing Date, prior to the relevant Subsequent Closing
Date and actually paid by such Sellers participating in such Subsequent
Closing through such Subsequent Closing Date;
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(iv) at the Initial Closing, the Facility Purchase Price and the
Fuel Purchase Price shall be adjusted as provided in Section 5.11(c) in the
event of any Major Loss (it being understood that such adjustment shall be
made as of the Initial Closing Date but shall be reflected in the Relevant
Facility Purchase Price paid at each Closing);
(v) at the Initial Closing Date, the Facility Purchase Price
shall be adjusted downward by (x) $10,000,000 in the event this Agreement
is terminated as to any Seller pursuant to the last paragraph of Section
10.1 and (y) $10,000,000 in the event the Buyer would have been permitted
to terminate this Agreement pursuant to Section 10.1(c)(ii) due to the
failure of the condition precedent specified in Section 6.1(e)(ii) and the
--------------------------
Buyer proceeds to consummate the transactions contemplated hereby
-----------------------------------------------------------------
notwithstanding such failure (it being understood that each such adjustment
----------------------------
shall be made as of the Initial Closing Date but shall be reflected in the
Relevant Facility Purchase Price paid at each Closing);
(vi) at an Initial Closing that occurs after a Plant Material
Adverse Effect, the Facility Purchase Price shall be adjusted downward by
an amount equal to the amount of the loss and/or expenditure reasonably
anticipated by the Buyer to be incurred within one year following the
Initial Closing Date to remedy such Plant Material Adverse Effect (it being
understood that such adjustment shall be made as of the Initial Closing
Date but shall be reflected in the Relevant Facility Purchase Price paid at
each Closing); provided, however, that if a Plant Material Adverse Effect
of the type specified in Section 6.1(i) exists at the Initial Closing Date
and the Buyer elects to waive the related closing condition, the Buyer
shall be entitled to an adjustment of no more than $50,000,000 unless all
of the Sellers agree to a higher amount;
(vii) at each such Subsequent Closing, the Relevant Facility
Purchase Price shall be increased by an amount equal to the amount actually
paid by such Remaining Seller after the Initial Closing Date and through
the relevant Subsequent Closing Date to remedy the Plant Material Adverse
Effect for which an adjustment has been made pursuant to
Section 2.6(a)(vi);
(viii) at each Closing, the Relevant Facility Purchase Price shall
be (A) increased if the book value as maintained by NAESCO of all
Inventories on the relevant Closing Date is greater than $35,800,000 (such
difference is referred to as the "Inventory Excess Amount"), in which case
the increase in the Relevant Facility Purchase Price shall equal the
Inventory Excess Amount multiplied by the Proportionate Ownership of such
Sellers participating in such Closing, and (B) decreased if the book value
as maintained by NAESCO of such Inventories on the relevant Closing Date is
less than $35,800,000 (such difference is referred to as the "Inventory
Deficit Amount"), in which case the decrease in the Relevant Facility
Purchase Price shall equal the Inventory Deficit Amount multiplied by the
Proportionate Ownership of such Sellers participating in such Closing (for
purposes hereof, such djustments shall be determined in accordance with
GAAP, consistent with NAESCO's past practices);
(ix) at each Closing, the Relevant Facility Purchase Price shall
be increased by an amount equal to the aggregate cost of Proposed
Improvements, to the
-13-
extent implemented and actually paid by such Sellers participating in such
Closing through the relevant Closing Date;
(x) at each Closing, the Relevant Facility Purchase Price shall
be adjusted downward by an amount equal to such Seller's Proportionate
Ownership of the Transmission Credit;
(xi) at each Closing, the Relevant Facility Purchase Price shall
be increased by an amount equal to the aggregate operation and maintenance
expenses related to a Refueling Outage that are incurred consistently with
Good Utility Practices and actually paid by such Sellers participating in
such Closing through the relevant Closing Date; and
(xii) to the extent the Seller Representatives or NAESCO have not
disposed prior to the Initial Closing Date of all of the Low Level Waste
whether at the Site or at an Offsite Hazardous Substance Facility and the
cost of such disposal is in excess of $500,000, the Facility Purchase Price
shall be decreased by the excess over such amount (the cost of such
disposal to be determined based on the prevailing industry costs as close
to the Initial Closing Date as practicable).
(b) FUEL PURCHASE PRICE ADJUSTMENTS. With respect to the Buyer, at
-------------------------------
each Closing, the Relevant Fuel Purchase Price shall be (A) increased if
and to the extent the book value as maintained by NAESCO of the Nuclear
Fuel of such Sellers participating in such Closing on the relevant Closing
Date is greater than the product of $61,900,000 multiplied by the
Proportionate Ownership of such Sellers participating in such Closing, and
(B) decreased if and to the extent the book value as maintained by NAESCO
of the Nuclear Fuel of such Sellers participating in such Closing on the
relevant Closing Date is less than the product of $61,900,000 multiplied by
the Proportionate Ownership of such Sellers participating in such Closing
(for purposes hereof, such adjustment shall be determined in accordance
with GAAP, consistent with NAESCO's past practices).
(c) XXXX 0 XXXXXXXX PRICE ADJUSTMENTS. With respect to the Buyer, at
---------------------------------
the Initial Closing, the Unit 2 Purchase Price shall be decreased by an
amount equal to the sale price of each Unit 2 component, part or piece of
equipment sold to a Third Party in an arm's length transaction during the
Interim Period (it being understood that such adjustment shall be made as
of the Initial Closing Date but shall be reflected in the Relevant Xxxx 0
Xxxxxxxx Price paid at each Closing).
(d) DETERMINATION OF PURCHASE PRICE ADJUSTMENTS.
-------------------------------------------
(i) At least thirty (30) days prior to the Initial Closing Date
and at least twenty (20) days prior to each Subsequent Closing Date, the
Seller Representatives, after onsultation with the Required Sellers or the
Remaining Sellers, as the case may be, shall deliver to the Buyer an
estimated closing statement (the "Estimated Closing Statement") prepared by
the Sellers that shall set forth the best estimate of the Sellers of
-14-
any adjustments to the Facility Purchase Price required by Section 2.6(a)
(the "Estimated Facility Purchase Price Adjustment"), any adjustments to
the Fuel Purchase Price required by Section 2.6(b) (the "Estimated Fuel
Purchase Price Adjustment") and any adjustments to the Xxxx 0 Xxxxxxxx
Price required by Section 2.6(c)(the "Estimated Unit 2 Purchase Price
Adjustment," together with the Estimated Facility Purchase Price Adjustment
and the Estimated Fuel Purchase Price Adjustment, the "Estimated
Adjustments") as of the Initial Closing Date or the Subsequent Closing
Date, as the case may be. Within fifteen (15) days following the delivery
of the Estimated Closing Statement by the Seller Representatives to the
Buyer (ten (10) days in the case of a Subsequent Closing), the Buyer may
object in good faith to any or all of the Estimated Adjustments in writing.
If the Buyer objects to any or all of the Estimated Adjustments, the
Parties shall attempt to resolve such dispute by negotiation. If the
Parties are unable to resolve such dispute before five (5) Business Days
prior to the relevant Closing Date or if no objection is made by the Buyer
with respect to any or all of the Estimated Adjustments, the Facility
Purchase Price, the Fuel Purchase Price and/or the Unit 2 Purchase Price
shall each be adjusted for the relevant Closing Date by the net amount of
the Estimated Facility Purchase Price Adjustment, the Estimated Fuel
Purchase Price Adjustment and the Estimated Unit 2 Purchase Price
Adjustment respectively, not in dispute, and the amount in dispute shall be
withheld for resolution in accordance with Section 2.6(d)(ii); and
(ii) Within sixty (60) days following the Initial Closing Date
and each Subsequent Closing Date, the Seller Representatives after
consultation with the Required Sellers or the Remaining Sellers, as the
case may be, shall deliver to the Buyer a closing statement (the
"Post-Closing Statement") prepared by the Sellers that shall set forth the
computation by the Sellers of the Facility Purchase Price adjustment in
accordance with Section 2.6(a) as of such Closing Date (the "Facility
Purchase Price Adjustment") and the components thereof and the Fuel
Purchase Price adjustment in accordance with Section 2.6(b) as of such
Closing Date (the "Fuel Purchase Price Adjustment") and the components
thereof and the Unit 2 Purchase Price adjustment in accordance with Section
2.6(c) as of such Closing Date (the "Unit 2 Purchase Price Adjustment")
and the components thereof. Within twenty (20) days following the delivery
of the Post-Closing Statement by the Seller Representatives to the Buyer,
the Buyer may object to the Post-Closing Statement in writing. The Sellers
agree to cooperate with the Buyer to provide to the Buyer or its
Representatives information used to prepare the Post-Closing Statement. If
the Buyer objects to the Post-Closing Statement, the Parties shall attempt
to resolve such dispute by negotiation pursuant to Section 11.20. If the
Parties are unable to resolve such dispute within twenty (20) days of any
objection by the Buyer, the Parties shall appoint an Independent Accounting
Firm, who shall review the Post-Closing Statement and determine within
thirty (30) days after its appointment the appropriate Facility Purchase
Price Adjustment, Fuel Purchase Price Adjustment and Unit 2 Purchase Price
Adjustment under this Section 2.6(d) as of such Closing Date. The fees,
costs and expenses of the Independent Accounting Firm shall be borne by the
Party which in the conclusive judgment of the Independent Accounting Firm
is not the prevailing party, or if such found to be the prevailing party,
then such fees, costs and expenses shall be borne equally by the Buyer and
the Sellers. The agreed upon Post-Closing Statement or the finding of such
-15-
Independent Accounting Firm, as the case may be, shall be the Facility
Purchase Price Adjustment as to Section 2.6(a), the Fuel Purchase Price
Adjustment as to Section 2.6(b) and the Xxxx 0 Xxxxxxxx Price Adjustment as
to Section 2.6(c), and shall be binding on the Parties. The acceptance by
the Buyer and the Sellers of such Facility Purchase Price Adjustment, Fuel
Purchase Price Adjustment and Unit 2 Purchase Price Adjustment shall not
constitute or be deemed to constitute a waiver of the rights of such Party
in respect of any other provision of this Agreement.
(e) Notwithstanding the foregoing, no increase or decrease shall be
made in the Facility Purchase Price, Fuel Purchase Price or Xxxx 0 Xxxxxxxx
Price to the extent such increase or decrease is related to or results from
changes made by the Buyer in accounting, billing, budgeted spending,
bookkeeping, inventory, recognition or other similar policies or practices
from those used by NAESCO prior to the Initial Closing Date.
2.7. PAYMENT OF PURCHASE PRICE ADJUSTMENTS. The Estimated Adjustments, to
-------------------------------------
the extent not in dispute, shall be aggregated at the Initial Closing Date and
each Subsequent Closing Date and the Party or Parties which owe(s) the other(s)
an adjustment to the Facility Purchase Price, the Fuel Purchase Price and/or the
Unit 2 Purchase Price shall make a cash payment of such adjustment in
immediately available funds by wire transfer to an account designated by the
Buyer or Seller Representatives after consultation with the other Sellers, as
the case may be. Following each Closing Date, if necessary, the Parties shall
aggregate the Facility Purchase Price Adjustment, the Fuel Purchase Price
Adjustment and the Unit 2 Purchase Price Adjustment and if, after taking into
account the payment, if any, made at such Closing Date pursuant to the preceding
sentence, the Party or Parties which owe(s) the other(s) an adjustment to the
Facility Purchase Price, the Fuel Purchase Price and/or the Unit 2 Purchase
Price shall make a cash payment of such adjustment in immediately available
funds by wire transfer to an account designated by the Buyer or the Seller
Representatives after consultation with the other Sellers, as the case may be.
2.8. ALLOCATION OF CONSIDERATION. The Buyer and the Sellers shall use
---------------------------
Commercially Reasonable Efforts to agree upon an allocation among the Acquired
Assets (other than Nuclear Fuel) of the sum of the Facility Purchase Price and
the Assumed Liabilities consistent with Section 1060 of the Code and the
Treasury Regulations thereunder within one hundred and twenty (120) days of the
Effective Date (or such later date as the Parties may mutually agree) but in no
event fewer than thirty (30) days prior to the Initial Closing Date. The Buyer
and the Sellers may obtain the services of an independent engineer or appraiser
(the "Independent Appraiser") to assist in determining the fair value of the
Acquired Assets solely for purposes of such allocation under this Section 2.8.
If such an appraisal is made, the Buyer and the Sellers agree to accept the
Independent Appraiser's determination of the fair value of the Acquired Assets.
The cost of the appraisal shall be borne equally by the Buyer and the Sellers.
To the extent such filings are required, the Buyer and the Sellers agree to file
IRS Form 8594 and all federal, state, local and foreign Tax Returns in
accordance with such agreed allocation. Except to the extent required to comply
with audit determinations by any Governmental Authority with jurisdiction over a
Party, the Buyer and the Sellers shall report the transactions contemplated by
-16-
this Agreement and the Related Agreements for all required federal Income Tax
and all other Tax purposes in a manner consistent with the allocation determined
pursuant to this Section 2.8. The Buyer and the Sellers agree to provide each
other promptly with any other information required to complete IRS Form 8594.
The Buyer and the Sellers shall notify and provide each other with reasonable
assistance in the event of an examination, audit or other proceeding regarding
the agreed upon allocation of the Facility Purchase Price. The Buyer and the
Sellers shall treat the transaction contemplated by this Agreement as the
acquisition by the Buyer of a trade or business for United States federal income
tax purposes and agree that no portion of the consideration therefor shall be
treated in whole or in part as the payment for services or future services.
2.9. PRORATION.
---------
(a) The Buyer and the Sellers agree that all of the items normally
prorated in a sale of assets of the type contemplated by this Agreement and the
Related Agreements, relating to the business and operations of the Acquired
Assets, will be prorated as of the Initial Closing Date and each Subsequent
Closing Date, with Sellers party to the relevant Closing liable to the extent
such items relate to any period prior to the relevant Closing Date on which such
Seller transfers its Ownership Share, and the Buyer liable to the extent such
items relate to periods after such relevant Closing Date, which items shall
include: (i) any personal property, real property, occupancy and water Taxes,
assessments and other charges of the type that could give rise to a Permitted
Encumbrance, if any, on or associated with the Acquired Assets; (ii) any rent,
Taxes and other items payable by or to the Sellers under any of the Material
Contracts, Emergency Preparedness Agreements, Leases or Other Assigned Contracts
assigned to and assumed by the Buyer hereunder (except for prepayments for
Nuclear Fuel or Inventories); (iii) any Permit, license, registration or fees
with respect to any Transferable Permit assigned to the Buyer associated with
the Acquired Assets; (iv) sewer rents and charges for water, telephone,
electricity and other utilities and insurance; (v) any amounts scheduled to be
paid into the Decommissioning Fund by a Seller relating to the time period that
includes the Initial Closing Date or a Subsequent Closing Date, as the case may
be; (vi) any fees or charges imposed by INPO, NEI, the NRC or any other
Governmental Authority or any association that the Buyer chooses to join; (vii)
ISO-NE VAR capability credits; (viii) credits associated with installed
capability requirements; and (ix) the Utility Property Tax associated with the
Acquired Assets (determined without giving effect to the sale of the Acquired
Assets to the Buyer).
(b) In connection with the prorations referred to in Section 2.9(a),
if the actual figures are not available on the Initial Closing Date and each
Subsequent Closing Date, the proration shall be based upon the actual payments
for the preceding year (or appropriate period) for which actual payments are
available and such payments shall be re-prorated upon request of any Seller or
the Buyer made within sixty (60) days of the date the actual amounts become
available. If the Taxes which are apportioned are thereafter reduced by
abatement or award, the amount of such abatement or award, less the reasonable
cost of obtaining the same and any amounts due to tenants under leases due to
such abatement or award, shall be apportioned between the applicable Parties;
provided that no Party shall be obligated to institute or prosecute
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an abatement or appellate proceeding unless otherwise agreed in writing.
Notwithstanding the foregoing, with respect to the Utility Property Tax
associated with the Acquired Assets, the initial proration shall be based on the
estimated tax payments made by the Sellers in respect thereof, but if it is
later determined that the actual amount of the Utility Property Tax (determined
without giving effect to the sale of the Acquired Assets to the Buyer) is less
than such estimated payments made by the Sellers, the Buyer shall pay promptly
to each Seller such Seller's Proportionate Ownership of such excess and the
Buyer and Sellers shall take reasonable steps such that the Buyer will succeed
to the Sellers' excess tax payments in respect of the Utility Property Tax. If
it is later determined that the actual amount of the Utility Property Tax
(determined without giving effect to the sale of the Acquired Assets to the
Buyer) is greater than such estimated payments made by the Sellers, each Seller
shall promptly pay to the Buyer its Proportionate Ownership of the amount of
such deficit. The Sellers and the Buyer agree to furnish each other with such
documents and other records that may be reasonably requested in order to confirm
all adjustment and proration calculations made pursuant to this Section 2.9.
2.10. THE CLOSINGS. Unless otherwise agreed to by the Parties
------------
participating in the applicable Closing, and except for the Closing at which UI
transfers the Undivided Interest to the Buyer which will proceed in accordance
with Section 6.3(a), the Initial Closing and each Subsequent Closing of the
transactions contemplated by this Agreement (collectively, the "Closing")
shall take place at the offices of Xxxxx Xxxxxxx Xxxxxxx Israels LLP, at Boston,
Massachusetts, commencing at 9:00 a.m. eastern time on the date that is ten (10)
days (or, if the tenth day is not a Business Day, then the next Business Day
following such tenth day) following the date on which all of the applicable
conditions set forth in Sections 6.1 and 6.2 (excluding deliveries contemplated
by Sections 2.11 and 2.12) have either been satisfied or waived by the Party for
whose benefit such condition exists, such satisfaction or waiver to conform to
Section 11.14; provided that such date shall not be earlier than the
--------
Coordination Date. The date of the Initial Closing (the "Initial Closing Date"
and the date of each Subsequent Closing (the "Subsequent Closing Date") is each
herein called a "Closing Date" and shall be effective for all purposes herein
as of 12:01 a.m. on the Closing Date. The conditions set forth in Sections 6.1
and 6.2 shall be deemed to have been satisfied or waived in writing by a Party
upon a Closing; provided such satisfaction or waiver shall not be deemed to
limit a Party's right to indemnification pursuant to Section 9.
2.11. DELIVERIES BY THE SELLERS AT THE CLOSINGS.
-----------------------------------------
(a) INITIAL CLOSING. At the Initial Closing (unless otherwise
---------------
indicated), if appropriate, each Required Seller shall deliver, or cause to be
delivered, the following to the Buyer, duly executed and properly acknowledged,
relating to the Ownership Shares being sold, assigned or transferred at such
Initial Closing:
(i) a Deed for the NAEC Real Property, substantially in the
form of Exhibit A(i) hereto and any owner's affidavits or similar documents
------------
reasonably required by the Title Company;
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(ii) Deeds for the Ownership Shares of the interests of each
Required Seller in the Jointly Owned Real Property being transferred at the
Initial Closing substantially in the form of Exhibit A(ii) hereto, and any
-------------
owner's affidavits or similar documents required by the Title Company;
(iii) a Xxxx of Sale, substantially in the form of Exhibit B
---------
hereto;
(iv) an Asset Demarcation Agreement, substantially in the form
of Exhibit C hereto;
---------
(v) if the Undivided Interest is transferred to the Buyer on
the Initial Closing Date, in the case of UI, the Owner Trustee Deed and
Xxxx of Sale, substantially in the form of Exhibit K hereto;
---------
(vi) an Assignment and Assumption Agreement, substantially in
the form of Exhibit D hereto, in recordable form if necessary;
---------
(vii) an Interconnection Agreement, substantially in the form
of Exhibit E hereto, duly executed by PSNH;
---------
(viii) an Interim Services Agreement, if requested in writing by
the Buyer and if agreed to by a Seller or its Affiliate who will provide
the services, substantially in the form of Exhibit J hereto, which shall
---------
cover those services set forth in Schedule 2.11(a)(viii);
----------------------
(ix) the Release of Mortgage Indenture, in the case of CL&P and
NAEC, if applicable, substantially in the form of Exhibit F hereto, and in
---------
the case of any other Required Seller, if applicable, in such other form as
meets the requirements of such Seller's mortgage indenture, if any;
(x) an Easement Agreement, if the same has been executed by
PSNH, NAEC and the other Participants;
(xi) originals, or copies certified to the Buyer's
satisfaction, of the Transferable Permits, Material Contracts, Emergency
Preparedness Agreements, Intellectual Property Licenses, Other Assigned
Contracts and Leases, which shall be delivered to the Buyer at the
Facility;
(xii) all consents, waivers or approvals necessary for the
transfer at such Closing of the Ownership Shares of such Required Sellers
or the consummation of the transactions contemplated by this Agreement and
the Related Agreements;
(xiii) a certificate from an authorized officer of such Required
Seller, dated the Initial Closing Date, to the effect that, to such
officer's Knowledge, the conditions set forth in Sections 6.1(a), 6.1(b),
6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(i) and 6.1(j) have been satisfied and a
certificate from an authorized officer of NAESCO, dated the Initial Closing
Date, to the effect that, to such officer's Knowledge, the conditions set
forth in Sections 6.1(a), 6.1(b), 6.1(e) and 6.1(i) have been satisfied;
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(xiv) a copy, certified by an authorized officer of such
Required Seller, of resolutions authorizing the execution and delivery of
this Agreement and the Related Agreements and instruments attached as
exhibits hereto and thereto, and the consummation of the transactions
contemplated hereby and thereby;
(xv) a certificate of an authorized officer of such Required
Seller which shall identify by name and title and bear the signature of the
officers of such Seller authorized to execute and deliver this Agreement
and the Related Agreements and instruments attached as exhibits hereto and
thereto;
(xvi) an opinion or opinions from one or more internal or
outside counsel to such Required Seller (who shall be reasonably
satisfactory to the Buyer), dated the Initial Closing Date and reasonably
satisfactory in form to the Buyer and its counsel, covering substantially
the matters set forth on Schedule 2.11(a)(xvi);
--------------------
(xvii) the items and documents listed in Sections 2.1(h) and
2.1(i); provided, in the case of documents located at the Facility, the
--------
Required Sellers may furnish a certificate authorizing the Buyer to take
possession thereof in lieu of physical delivery at the Initial Closing
Date, and provided further that in the event that applicable Law prohibits
transfer of the original documents on the Initial Closing Date, the
Required Sellers shall provide certified copies of the items and documents,
and provide the original documents at such time allowable under applicable
Law;
(xviii) the Title Commitments to be delivered by such Required
Seller pursuant to Section 3.7;
(xix) such Required Seller's FIRPTA Affidavit;
(xx) certificates of title for all vehicles listed on
Schedule 2.1(o) acquired by the Buyer;
---------------
(xxi) amounts due from each such Required Seller, if any, for
the Estimated Adjustment pursuant to Section 2.6(d);
(xxii) a certificate of good standing with respect to each such
Required Seller, to the extent applicable (dated as of a recent date prior
to the Initial Closing Date), issued by the appropriate Secretary of State
for each such Required Seller;
(xxiii) the assets of each such Required Seller's
Decommissioning Fund in accordance with Section 5.10;
(xxiv) an Agreement to Amend the Transmission Support
Agreement, substantially in the form of Exhibit N hereto, duly executed by
---------
PSNH and NEP;
(xxv) an amendment to the Joint Ownership Agreement signed by
each Seller substituting the Buyer for each of the Sellers, to be effective
with respect to each such Seller as of the Initial Closing Date or the
Subsequent Closing Date in which such Seller participates in form and
substance satisfactory to the Buyer;
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(xxvi) evidence of substitution of the Buyer or its designee for
NAESCO under each of the Managing Agent Operating Agreement and the
Disbursing Agent Agreement; and
(xxvii) such other agreements, consents, documents, instruments
and writings as are reasonably required to be delivered by each such
Required Seller at or prior to the Initial Closing Date pursuant to this
Agreement or the Related Agreements or otherwise reasonably required in
connection herewith or therewith, including all such other instruments
of sale, transfer, conveyance, assignment or assumption as the Buyer or its
counsel may reasonably request in connection with the sale and transfer of
the Acquired Assets or the transactions contemplated hereby; provided,
--------
however, that this subsection (xxvii) shall not require such Required
-------
Seller to prepare or obtain any surveys relating to the Real Property.
(b) SUBSEQUENT CLOSING. At each Subsequent Closing (unless otherwise
------------------
indicated), if appropriate, the Remaining Sellers participating in such Closing
shall deliver the following to the Buyer, duly executed and properly
acknowledged, relating to the Ownership Shares being sold, assigned or
transferred at such Subsequent Closing:
(i) with respect to the Remaining Sellers participating in a
particular Subsequent Closing, Deeds for the Ownership Shares of the
interests of each such Remaining Seller in the Jointly Owned Real Property
being transferred at the Subsequent Closing substantially in the form of
Exhibit A(ii) hereto, and any owner's affidavits or similar documents
-------------
required by the Title Company;
(ii) a Xxxx of Sale;
(iii) if the Undivided Interest is transferred to the Buyer on
the Subsequent Closing Date, in the case of UI, the Owner Trustee Deed
and Xxxx of Sale, substantially in the form of Exhibit K hereto;
---------
(iv) an Assignment and Assumption Agreement, if appropriate;
(v) a Release of Mortgage Indenture, in such form and with
such modifications as may be necessary to meet the requirements of such
Remaining Seller's mortgage, if any;
(vi) the consents, waivers or approvals and all other
consents, waivers and approvals necessary for the transfer at such Closing
of the Ownership Shares of each such Remaining Seller or the consummation
of the transactions contemplated by this Agreement and the Related
Agreements;
(vii) a certificate from an authorized officer of each such
Remaining Seller, dated the relevant Closing Date, to the effect that the
conditions with respect to such Seller in its individual capacity set forth
in Sections 6.1(a), 6.1(b), 6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(i) and
6.1(j) have been satisfied;
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(viii) a copy, certified by an authorized officer of each such
Remaining Seller, of resolutions authorizing the execution and delivery
of this Agreement and Related Agreements and instruments attached as
exhibits hereto and thereto, and the consummation of the transactions
contemplated hereby and thereby;
(ix) a certificate of an authorized officer of each such
Remaining Seller which shall identify by name and title and bear the
signature of the officers of such Remaining Seller authorized to execute
and deliver this Agreement and the Related Agreements and instruments
attached as exhibits hereto and thereto;
(x) an opinion or opinions from one or more internal or
outside counsel to each such Remaining Seller (who shall be reasonably
satisfactory to the Buyer), dated the relevant Closing Date and reasonably
satisfactory in form to the Buyer and its counsel, covering matters
relating to such Subsequent Closing substantially as set forth in
Schedule 2.11(b)(x);
-------------------
(xi) the Title Commitments to be delivered by such Remaining
Sellers pursuant to Section 3.7;
(xii) such Remaining Seller's FIRPTA Affidavit;
(xiii) a certificate of good standing with respect to each such
Remaining Seller, to the extent applicable (dated as of a recent date prior
to such Closing Date), issued by the appropriate Secretary of State for
each such Remaining Seller;
(xiv) the assets of each such Remaining Seller's
Decommissioning Funds in accordance with Section 5.10; and
(xv) such other agreements, consents, documents, instruments
and writings as are reasonably required to be delivered by each such
Remaining Seller at or prior to such Closing Date pursuant to this
Agreement or Related Agreements or otherwise reasonably required in
connection herewith or therewith, including all such other instruments of
sale, transfer, conveyance, assignment or assumption as the Buyer or its
counsel may reasonably request in connection with the sale and transfer of
the Acquired Assets or the transactions contemplated hereby; provided,
however, that this subsection (xv) shall not require such Seller to
prepare or obtain any surveys relating to the Real Property.
2.12. DELIVERIES BY THE BUYER AT THE CLOSING DATE.
-------------------------------------------
(a) INITIAL CLOSING. At the Initial Closing, if appropriate, the
---------------
Buyer shall deliver to or at the direction of the Required Sellers duly executed
and properly acknowledged, relating to the Ownership Shares being sold, assigned
or transferred at such Closing:
(i) the Relevant Facility Purchase Price, the Relevant Fuel
Purchase Price, the Relevant Unit 2 Purchase Price, the NAEC Real Property
Purchase Price and
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amounts due from the Buyer, if any, for the Estimated Adjustment pursuant
to Section 2.6(d);
(ii) an Assignment and Assumption Agreement;
(iii) the Asset Demarcation Agreement;
(iv) the Interconnection Agreement;
(v) an Interim Services Agreement;
(vi) the Acceptable Guaranty;
(vii) the Agreement to Amend Transmission Support Agreement;
(viii) evidence of the Buyer's membership in NEPOOL;
(ix) a certificate from an authorized officer of the Buyer,
dated the Initial Closing Date, to the effect that, to such officer's
Knowledge, the conditions set forth in Sections 6.2(a), 6.2(b), 6.2(d),
6.2(e), 6.2(f), 6.2(g), 6.2(h), 6.2(i) and 6.2(l) have been satisfied;
(x) a copy, certified by an authorized officer of the Buyer,
of resolutions authorizing the execution and delivery of this Agreement
and the Related Agreements to which the Buyer is a party and instruments
attached as exhibits hereto and thereto, and the consummation of the
transactions contemplated hereby and thereby;
(xi) a certificate of an authorized officer of the Buyer
which shall identify by name and title and bear the signature of the
officers of the Buyer authorized to execute and deliver this Agreement and
the Related Agreements to which the Buyer is a party and instruments
attached as exhibits hereto and thereto;
(xii) a certificate of good standing with respect to the Buyer
(dated as of a recent date prior to the Initial Closing Date) issued by the
Secretary of State of the State of Delaware;
(xiii) a certificate of good standing with respect to the Buyer
(dated as of a recent date prior to the Initial Closing Date) issued by the
Secretary of State of the State of New Hampshire;
(xiv) an opinion or opinions from one or more counsel to the
Buyer (who shall be reasonably satisfactory to the Required Sellers), dated
the Initial Closing Date and reasonably satisfactory in form to the
Sellers and their counsel, covering substantially the matters set forth in
Schedule 2.12;
-------------
(xv) such other agreements, consents, documents, instruments
and writings as are reasonably required to be delivered by the Buyer at or
prior to such Closing Date pursuant to this Agreement or the Related
Agreements or otherwise
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reasonably required in connection herewith or therewith, including all such
other instruments of assumption as the Seller Representatives or their
counsel may reasonably request in connection with the purchase of the
Acquired Assets or the transactions contemplated hereby; and
(xvi) to the extent no Seller Easements exist at the Initial
Closing Date, an Easement Agreement executed by the Buyer with respect to
the Ownership Shares it acquires at the Initial Closing.
(b) SUBSEQUENT CLOSING. At each Subsequent Closing, if appropriate,
------------------
the Buyer shall deliver to or at the direction of each of the Remaining Sellers
participating at such Closing, duly executed and properly acknowledged, relating
to the Ownership Shares being sold, assigned or transferred at such Closing:
(i) the Relevant Facility Purchase Price, the Relevant Fuel
Purchase Price, the Relevant Unit 2 Purchase Price and amounts due from the
Buyer, if any for the Estimated Adjustment pursuant to Section 2.6(d);
(ii) an Assignment and Assumption Agreement;
(iii) a certificate from an authorized officer of the Buyer,
dated such Closing Date, to the effect that the conditions set forth in
Sections 6.2(a), 6.2(b), 6.2(d), 6.2(e), 6.2(f), 6.2(g), 6.2(h), 6.2(i)
and 6.2(l) have been satisfied;
(iv) a copy, certified by an authorized officer of the Buyer,
of resolutions authorizing the execution and delivery of this Agreement and
Related Agreements to which the Buyer is a party and instruments attached
as exhibits hereto and thereto, and the consummation of the transactions
contemplated hereby and thereby;
(v) a certificate of an authorized officer of the Buyer which
shall identify by name and title and bear the signature of the officers of
the Buyer authorized to execute and deliver this Agreement and the Related
Agreements to which the Buyer is a party and instruments attached as
exhibits hereto and thereto;
(vi) an opinion or opinions from one or more counsel to the
Buyer (who shall be reasonably satisfactory to the Remaining Sellers),
dated such Closing Date and reasonably satisfactory in form to the
Remaining Sellers and their counsel, covering substantially the matters set
forth in Schedule 2.12;
-------------
(vii) a certificate of good standing with respect to the Buyer
(dated as of a recent date prior to such Closing Date) issued by the
Secretary of State of Delaware;
(viii) a certificate of good standing with respect to the Buyer
(dated as of a recent date prior to such Closing Date) issued by the
Secretary of State of New Hampshire;
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(ix) such other agreements, consents, documents, instruments
and writings as are reasonably required to be delivered by the Buyer at or
prior to such Closing Date pursuant to this Agreement or the Related
Agreements or otherwise reasonably required in connection herewith or
therewith, including all such other instruments of assumption as the
Remaining Sellers or their counsel may reasonably request in connection
with the purchase of the Acquired Assets or the transactions contemplated
hereby; and
(x) to the extent the Buyer delivered the item specified i
Section 2.12(a)(xvi) at the Initial Closing Date, an Easement Agreement
executed by the Buyer with respect to the Ownership Shares it acquires at
such Closing.
3. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS OF EACH SELLER. Except as
----------------------------------------------------------
specifically provided in Section 3.7(a) with respect to the NAEC Real Property,
each of the Sellers, severally as to those representations and warranties
involving such Seller only and severally in accordance with its Proportionate
Ownership set forth in Schedule 3.1(i), which, in the case of UI, shall include
---------------
the Undivided Interest, as to all other representations and warranties, hereby
represents and warrants to the Buyer (all such representations and warranties
other than those in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7(b), 3.7(c), 3.8,
3.9, 3.10, 3.17 and 3.23, are being made to the Knowledge of such Seller) and,
in addition thereto, NAESCO, hereby represents and warrants to the Buyer (such
representations and warranties other than those in Sections 3.7(b), 3.7(c),
3.10, 3.17 and 3.23 are being made to the Knowledge of NAESCO and shall exclude
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7(a)) as follows:
3.1. ORGANIZATION. Such Seller is duly organized, validly existing and
------------
in good standing under the Laws of its jurisdiction of incorporation and has all
requisite corporate power and authority to own, lease, and operate its
properties and to carry on its business as it is now being conducted. Copies of
the charter and by-laws of such Seller, each as amended to date, have been
heretofore made available to the Buyer and are accurate and complete. To the
extent such Seller is not a New Hampshire entity, such Seller is qualified to do
business in New Hampshire. If such Seller is listed on Schedule 3.1(ii), such
----------------
Seller is organized by or under the Order of a Governmental Authority.
3.2. AUTHORIZATION, EXECUTION AND ENFORCEABILITY OF TRANSACTIONS. Such
-----------------------------------------------------------
Seller has the full power and authority to execute and deliver this Agreement
and the Related Agreements and, subject to receipt of its Seller Regulatory
Approvals, to perform its obligations hereunder and thereunder. Except as
described in Schedule 3.2, all necessary actions or proceedings to be taken by
------------
or on the part of such Seller to authorize and permit the due execution and
valid delivery by such Seller of this Agreement and the Related Agreements and
the instruments required to be duly executed and validly delivered by such
Seller pursuant hereto and thereto, the performance by such Seller of its
obligations hereunder and thereunder, and the consummation by such Seller of the
transactions contemplated herein and therein, have been duly and properly taken.
This Agreement has been duly executed and validly delivered by such Seller, and
assuming due execution and delivery by the Buyer and the other Sellers and
receipt of all Seller Regulatory
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Approvals, constitutes the valid and legally binding obligation of such Seller,
enforceable in accordance with its terms and conditions, subject to applicable
bankruptcy, insolvency, moratorium and other Laws affecting the rights of
creditors generally and the application of general principles of equity
(regardless of whether such enforceability is sought in equity or at law). When
each Related Agreement has been executed and validly delivered by the Buyer and
such Seller and each other party thereto, and assuming due execution and
delivery by the Buyer and the other Sellers and each other party thereto and
receipt of all Seller Regulatory Approvals, such Related Agreement constitutes
a valid and legally binding obligation of such Seller, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium and
other Laws affecting the rights of creditors generally and the application of
general principles of equity (regardless of whether such enforceability is
sought in equity or at law). Such Seller acknowledges the receipt and
sufficiency of consideration with respect to this Agreement and each of the
Related Agreements.
3.3. NONCONTRAVENTION. Subject to such Seller obtaining its Seller
----------------
Regulatory Approvals, neither the execution and delivery by such Seller of this
Agreement or any of the Related Agreements, nor the consummation of the
transactions contemplated hereby and thereby will (i) violate any Law to which
such Seller or any of its property is subject or any provision of the charter
or by-laws of such Seller, or (ii) conflict with, result in a breach or
forfeiture of, constitute a default under, result in the acceleration of, create
in any Person the right to accelerate, terminate, modify, revoke, suspend or
cancel, or require any notice under any agreement, contract, lease, Permit,
license, instrument, or other arrangement to which such Seller is bound or to
which any of its assets is subject (or result in the imposition of any Lien upon
any of the Acquired Assets), except for matters that, (x) in the aggregate,
would not be likely to have a Material Adverse Effect on such Seller or its
ability to perform its obligations under this Agreement and the Related
Agreements or for which a consent or waiver shall have been obtained, (y) are
disclosed on Schedule 3.3, or (z) arise in relation to any non-assigned rights
------------
under Permits, Material Contracts, Leases or Other Assigned Contracts or other
agreements or matters which have been expressly disclosed to the Buyer.
3.4. CONSENTS AND APPROVALS. Except for Seller Regulatory Approvals, no
----------------------
declaration, filing or registration with, or notice to, or authorization,
consent or approval of any Governmental Authority is necessary for the execution
and delivery of this Agreement or the Related Agreements by such Seller, or the
consummation of the transactions contemplated hereby or thereby.
3.5. REGULATION AS A UTILITY. To the extent described in Schedule 3.5(i),
-----------------------
such Seller is a public service company or an electric company or other similar
entity subject to regulation by a Governmental Authority, as specified in
Schedule 3.5(i). To the extent described in Schedule 3.5(ii), such Seller is an
--------------- ----------------
"electric utility company" and a "subsidiary company" of a "holding company"
which is registered or exempt from registration under the Public Utility Holding
Company Act of 1935, as amended. To the extent described in Schedule 3.5(iii)
----------------
such Seller is an "electric utility" subject to regulation by FERC under the
Federal Power Act, as amended, and is a power reactor licensee and materials
licensee subject to regulation by the NRC under the
-26-
Atomic Energy Act (as suchc terms are defined therein). The 345 kV Substation
conveyed with the Facility is an interconnecting transmission facility,
necessary to effect wholesale sales of electricity from the Facility, and any
other use of the 345 kV Substation is incidental thereto. Except as otherwise
provided in Schedule 3.5(iv), the sale of the Ownership Shares to the Buyer
----------------
pursuant to this Agreement shall constitute a transfer of substantially all of
the properties or all of the generating facilities of such Seller within the
meaning of Paragraph 23.1 of the Joint Ownership Agreement.
3.6. BROKERS' FEES. Such Seller has no Liability or obligation to pay any
-------------
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could become
liable or obligated.
3.7. TITLE TO ACQUIRED ASSETS.
------------------------
(a) NAEC hereby represents and warrants to Buyer that, except for
Permitted Encumbrances, NAEC holds good and marketable title to its interest in
the NAEC Real Property to the extent, and only to the extent, specified in the
title insurance commitments attached hereto as in Schedule 3.7(i) (the "Title
---------------
Commitments").
(b) Except for Permitted Encumbrances, such Seller holds good and
marketable title to its tenant-in-common interest (as set forth on Schedule 1(a)
-------------
hereto) in the Jointly Owned Real Property to the extent, and only to the
extent, specified in the Title Commitments.
(c) Except as set forth in Schedule 3.7(i) and except for Permitted
---------------
Encumbrances, such Seller has good and valid title to, or a valid leasehold
interest in, or license for its tenant-in-common interest in the Acquired Assets
other than the Jointly Owned Real Property free and clear of all Liens. Such
Seller owns a tenant-in-common interest in the Acquired Assets, other than the
NAEC Real Property, in a percentage equal to its Ownership Share as set forth in
Schedule 1(a), or, in the case of the Undivided Interest, UI holds a leasehold
-------------
interest. There are no Permitted Encumbrances arising out of any Tax or other
charges due from such Seller or NAESCO as assessed by any Governmental Authority
past due on the date the representation is given, except for those items, if
any, as to which such Seller will indemnify the Buyer pursuant to Section 9.3.
3.8. QUALIFIED DECOMMISSIONING FUNDS. With respect to each Seller other
-------------------------------
than a Seller organized by or under the Order of a Governmental Authority:
(a) (i) The Qualified Decommissioning Fund of such Seller is a trust,
validly existing under the Laws of the State of New Hampshire with all requisite
authority to conduct its affairs as it now does; (ii) the Qualified
Decommissioning Fund of such Seller satisfies the
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requirements necessary for each such Qualified Decommissioning Fund to be
treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of
Section 468A(a) of the Code and as a "nuclear decommissioning fund" and a
"qualified nuclear decommissioning fund" within the meaning of Treas. Reg.
paragraph 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in
compliance in all material respects withall applicable rules and regulations
of any Governmental Authority having jurisdiction (including, without
limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the
RIPUC, the VTPSB and the IRS), and the Qualified Decommissioning Fund of such
Seller has not engaged in any material acts of "self-dealing" as defined in
Treas. Reg. parargraph 1.468A-5(b)(2); (iv) no "excess contribution," as defined
in Treas. Reg. parargraph 1.468A-5(c)(2)(ii), has been made to the Qualified
Decommissioning Fund of such Seller which has not been withdrawn within the
period provided under Treas. Reg. parargraph 1.468A-5(c)(2)(i); and (v) such
Seller has made timely and valid elections to make annual contributions to its
Qualified Decommissioning Fund since the first taxable year after establishment
of such fund and has heretofore made available copies of such elections to the
Buyer. Such Seller has heretofore made available to the Buyer a copy of its
Decommissioning Trust Agreement as in effect on the Effective Date.
(b) Subject only to Seller Regulatory Approvals and approval by the
NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the
Trustee have or shall have prior to the Initial Closing Date or Subsequent
Closing Date, as the case may be, all requisite right, power and authority to
cause the assets of each Qualified Decommissioning Fund to be transferred to
the Buyer's Qualified Decommissioning Fund in accordance with the provisions
of this Agreement.
(c) (i) Such Seller and/or the Trustee of the Qualified
Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS
and all other applicable Governmental Authorities all material forms,
statements, reports, documents (including all exhibits, amendments and
supplements thereto) required to be filed by such entities; and (ii) there are
no interim rate orders that may be retroactively adjusted or retroactive
adjustments to interim rate orders that may affect amounts to be contributed
by the Buyer to the Qualified Decommissioning Funds or to be distributed from
the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning
Fund. Such Seller has made available to the Buyer a copy of the schedules o
of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for
the Qualified Decommissioning Fund, a copy of the requests that were filed to o
btain such IRS Ruling Amounts and a copy of any pending request for revised IRS
Ruling Amounts, in each case together with all exhibits, amendments and
supplements thereto. Any excess amounts contributed to the Qualified
Decommissioning Fund while such request(s) is/are pending before the IRS which
exceed the applicable amounts provided in the IRS Ruling Amounts issued by the
IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund
within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to
the approval by the Office of the State Treasurer of New Hampshire of such
withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets
and liabilities verified by the Trustee for its Qualified Decommissioning Fund
as of February 28,
-28-
2002, and such statement of assets and liabilities will be verified by such
Trustee as of the second Business Day before the Closing Date on which such
Seller transfers its Ownership Share, which statement of assets and liabilities
presents fairly as of February 28, 2002, and will present as of the second
Business Day prior to the Closing Date on which such Seller transfers its
Ownership Share, the financial position of each Qualified Decommissioning
Fund. Each Seller will make available to Buyer information from which Buyer can
determine the Tax Basis of all assets in such Seller's Qualified Decommissioning
Fund as of the second Business Day prior to the Closing Date on which such
Seller transfers its Ownership Share. There are no Liabilities (whether
absolute, accrued, contingent or otherwise and whether due or to become due),
including, but not limited to, any acts of "self-dealing" as defined in Treas.
Reg. parargraph 1.468A-5(b)(2) or agency or other legal proceedings that may
materially affect the financial position of the Qualified Decommissioning Funds
other than those, if any, that are disclosed on Schedule 3.8.
------------
(e) Such Seller has made available to the Buyer copies of all
contracts and agreements to which the Trustee of the Qualified Decommissioning
Fund, in its capacity as such, is a party.
(f) Such Seller's Qualified Decommissioning Fund has filed all Tax
Returns required to be filed and all material Taxes shown to be due on such Tax
Returns have been paid in full. Except as shown in Schedule 3.8, no notice of
------------
deficiency or assessment has been received from any taxing authority with
respect to liability for Taxes of any such Seller's Qualified Decommissioning
Fund which have not been fully paid or Finally settled, and any such deficiency
shown in such Schedule 3.8 is being contested in good faith through appropriate
------------
proceedings. Except as set forth in Schedule 3.8, there are no outstanding
------------
agreements or waivers extending the applicable statutory periods of limitations
for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified
Decommissioning Fund with those of any other assets for investment purposes in
periods prior to Closing, such pooling arrangement is not taxable as a
corporation for federal income tax purposes.
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3.9. NONQUALIFIED DECOMMISSIONING FUNDS.
----------------------------------
(a) The Nonqualified Decommissioning Fund of such Seller is a trust
validly existing under the Laws of the State of New Hampshire with all requisite
authority to conduct its affairs as it now does. The Nonqualified
Decommissioning Fund of such Seller is in compliance in all material respects
with applicable rules and regulations of any Governmental Authority having
jurisdiction (including, without limitation, the NRC, the NDFC, the NHPUC, the
DPUC, the FERC, the MDTE, the RIPUC, the VTPSB and the IRS).
(b) Subject only to Seller Regulatory Approvals and approval by the
NDFC of Buyer's funding assurance pursuant to RSA 162-F, such Seller and the
Trustee have or shall have prior to the Initial Closing Date or Subsequent
Closing Date, as the case may be, all requisite right, power and authority to
cause the assets of each Nonqualified Decommissioning Fund to be transferred to
the Buyer's Nonqualified Decommissioning Fund in accordance with the provisions
of this Agreement.
(c) Such Seller and the Trustee of the Nonqualified Decommissioning
Fund have filed or caused to be filed with the NRC and any state or local
governmental authority all material forms, statements, reports, documents
(including all exhibits, amendments and supplements thereto) required to be
filed by any of them.
(d) Such Seller has made available to the Buyer a statement of assets
and liabilities verified by the Trustee for its Nonqualified Decommissioning
Fund as of February 28, 2002, and such statement of assets and liabilities will
be verified by such Trustee as of the second Business Day before the Closing
Date on which such Seller transfers its Ownership Share, which statement of
assets and liabilities presents fairly as of February 28, 2002, and will present
as of the second Business Day before the Closing Date on which such Seller
transfers its Ownership Share, the financial position of each Nonqualified
Decommissioning Fund. There are no Liabilities (whether absolute, accrued,
contingent or otherwise and whether due or to become due) including, but not
limited to, agency, administrative or other legal proceedings, that may
materially affect the financial position of the Nonqualified Decommissioning
Fund other than those, if any, that are disclosed on Schedule 3.9.
------------
(e) Such Seller has made available to the Buyer all contracts and
agreements to which the Trustee of the Nonqualified Decommissioning Fund, in its
capacity as such, is a party.
(f) To the extent such Seller has pooled the assets of the
Nonqualified Decommissioning Fund with any other assets for investment purposes
in periods ending on or prior to the Closing Date on which such Seller transfers
its Ownership Share, such pooling arrangement is not taxable as a corporation
for federal income tax purposes.
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3.10. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 2001,
------------------------------------
except as set forth in Schedule 3.10, there has not occurred (i) any Material
-------------
Adverse Effect with respect to such Seller or (ii) any Plant Material Adverse
Effect.
3.11. LEGAL AND OTHER COMPLIANCE. Such Seller has not received any
--------------------------
written notice from any Governmental Authority that such Seller is not in
compliance with all Laws (other than Environmental Laws) applicable to the
Acquired Assets or the Assumed Liabilities other than as disclosed in
Schedule 3.11(i) and such Seller is not in violation of such Laws, except for
----------------
any violations that, in the aggregate, would not be likely to have a Plant
Material Adverse Effect. All Permits necessary for the ownership and operation
of the Acquired Assets as presently owned and operated have been obtained.
Except as described in Schedule 3.11(iii), all reports and returns required to
------------------
be filed in connection with the Acquired Assets with the NRC and other
Governmental Authorities have been filed and all Permits which are required in
connection with the business of owning and/or operating the Acquired Assets have
been obtained, other than those that the failure to file and obtain would not be
likely to have a Plant Material Adverse Effect. Except as set forth on
Schedule 3.11(ii), (i) all of such Permits are in full force and effect and no
-----------------
proceedings for the suspension or cancellation of any of them is pending or
threatened and (ii) no notice of violation of any of such Permits has been
received, except for notices of violation which would not, individually or in
the aggregate, be likely to have a Plant Material Adverse Effect. All Permits
are being complied with, except for violations which would not, individually or
in the aggregate, be likely to have a Plant Material Adverse Effect.
Schedule 2.1(f) sets forth all Transferable Permits and Schedule 3.11(ii) sets
-------------- ----------------
forth all other Permits applicable to the Acquired Assets. No Governmental
Authority has taken any action (including NRC rules, regulations, orders or
confirmatory action letters) that would prevent the Facility from operating at
its full licensed thermal power at or after the Initial Closing Date and there
has been no noncompliance with applicable Laws or NRC Commitments that would
prevent the Facility from operating at its full-rated capacity at or after the
Initial Closing Date. The Facility is in compliance with the Emergency Operation
Criteria, adopted by the Northeast Power Coordinating Council ("NPCC"), as
revised through January 1999, as set forth in NPCC Document A-3. All Revenue
Meters (as such term is defined in the Interconnection Agreement) have been
maintained in accordance with applicable ISO-NE and NEPOOL requirements.
3.12. TAXES. All Tax Returns of such Seller required to be filed
-----
regarding the ownership or operation of the Acquired Assets have been filed, and
all Taxes due as indicated thereon have been paid, except where such Taxes are
being contested in good faith by appropriate proceedings, or where the failure
to file or pay, in either case, would not be likely to have a Plant Material
Adverse Effect. There is no unpaid Tax on such Seller's ownership, operation or
use of the Acquired Assets for which the Buyer could reasonably be expected to
become liable. There is no material dispute or claim concerning any Tax claimed
or raised by any Governmental Authority with respect to the Acquired Assets.
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3.13. CONTRACTS AND LEASES.
--------------------
(a) Except (i) as listed in Schedules 2.1(c), 2.1(e), 2.1(g),
---------------- ------ ------
2.1(n)(ii) or 2.1(s) or any other Schedule, (ii) for contracts, agreements,
---------- ------
personal property leases, commitments, understandings or instruments which will
be fully performed or terminated on or prior to the Initial Closing Date, (iii)
for agreements with suppliers entered into in the ordinary course of business
that may be assumed by and assigned to the Buyer in the absence of a Third Party
consent thereto and (iv) the Other Assigned Contracts and Non-Assigned
Contracts, there is no written contract, agreement, personal property lease,
commitment, understanding or instrument which (x) is material to the ownership
or operation of the Acquired Assets or (y) provides for the sale of any amount
of capacity or energy from any of the Acquired Assets (whether or not entered
into in the ordinary course of business). The schedule of Leases attached as
Schedule 2.1(e) (the "Lease Schedule") contains a description of all Leases now
---------------
in effect, whether written or oral, including all amendments, extensions,
modifications and supplements thereto.
(b) Each of the Material Contracts, Emergency Preparedness Agreements,
Leases and Other Assigned Contracts constitutes a valid and binding obligation
of the parties thereto and is in full force and effect.
(c) All of the material provisions of each Material Contract (other
than the default of DOE under the DOE Standard Contract), Lease, Emergency
Preparedness Agreement and Other Assigned Contract have been complied with by
such Seller and there does not exist any event of default under any such
Material Contract (other than the default of DOE under the DOE Standard
Contract), Lease, Emergency Preparedness Agreement and Other Assigned Contract
on the part of any party thereto, or any event which after notice or lapse of
time or both, could constitute an event of default under any such Material
Contract, Lease, Emergency Preparedness Agreement and Other Assigned Contract,
for such non-compliance or default as would not, individually or in the
aggregate, be likely to have a Plant Material Adverse Effect. Except as
disclosed in Schedule 3.15, there is no action, suit, proceeding or
-------------
investigation pending or threatened before any court or before any Governmental
Authority for the renegotiation of or any other adjustment of any such Material
Contract, Lease, Emergency Preparedness Agreement or Other Assigned Contract
(except for such matters as would not, individually or in the aggregate, be
likely to have a Plant Material Adverse Effect).
(d) None of the Non-Assigned Contracts (except to the extent permitted
by Section 5.2(b)(vi)) is material to the ownership or operation of the Acquired
Assets or, except as specified on Schedule 3.13(d), provide for the sale of any
----------------
amount of capacity or energy from any of the Acquired Assets.
(e) Other than as set forth in the Joint Ownership Agreement or
otherwise disclosed in Schedule 3.13(e), there are (A) no restrictions on the
----------------
transfer of such Seller's interests in the Facility (other than Buyer Regulatory
Approvals and Seller Regulatory Approvals) and (B) no options or other rights to
acquire such Seller's interests in the Acquired
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Assets. Except as provided on Schedule 3.13(e), neither the execution of this
----------------
Agreement nor the sale of the Acquired Assets to the Buyer will entitle any
Person to exercise any purchase options, rights of first refusal, or similar
rights with respect to the Acquired Assets or the interests therein to be
purchased by the Buyer under this Agreement. Such Seller has or, in the case of
any Seller specified on Schedule 3.5(iv), will have complied with the right of
----------------
first refusal provisions in Paragraph 23 of the Joint Ownership Agreement.
3.14. INSURANCE. Except as set forth in Schedule 3.14, all material
--------- -------------
policies of nuclear property damage, Nuclear Liability, public liability,
workers' compensation and other forms of insurance owned or held by such Seller
or its Affiliates and insuring the Acquired Assets or any Assumed Liabilities
are in full force and effect, all premiums with respect thereto covering all
periods up to and including the date as of which this representation is being
made have been paid (other than retrospective premiums which may be payable with
respect to Nuclear Liability, nuclear property damage, public liability,
workers' compensation insurance and other similar insurance policies), and no
notice of cancellation or termination has been received with respect to any such
policy which was not replaced on substantially similar terms prior to the date
of such cancellation. Except as described in Schedule 3.14, as of the date of
-------------
this Agreement, such Seller has not been refused any insurance with respect to
the Acquired Assets nor has the coverage of such insurance been limited by any
insurance carrier to which it has applied for any such insurance or with which
it has carried insurance during the last twelve months.
3.15. LITIGATION. Except as set forth on Schedule 3.15, (i) there are no
---------- -------------
claims, actions, proceedings or investigations pending or threatened before any
court, arbitrator or Governmental Authority which, individually or in the
aggregate, would be likely to have a Plant Material Adverse Effect or that
question the validity of this Agreement or the Related Agreements or of any
action taken or to be taken pursuant to or in connection with the provisions of
this Agreement or the Related Agreements and which, individually or in the
aggregate, would be likely to have a Plant Material Adverse Effect; (ii) such
Seller is not subject to any outstanding judgment, rule, order, citation, fine,
penalty, writ, injunction or decree of any court, arbitrator or Governmental
Authority which, individually or in the aggregate, would be likely to have a
Plant Material Adverse Effect; and (iii) such Seller has not received any
written notification that it is in violation of any Laws or Permits with respect
to the Acquired Assets or Assumed Liabilities, except for notifications of
violations which would not, individually or in the aggregate, be likely to have
a Plant Material Adverse Effect. A petition filed or pending under 10 C.F.R.
Section 2.206 or Section 2.802, or any claim for review of any action thereon,
or a notification filed under 10 C.F.R. Part 21, all of which in the case of 10
C.F.R. Section 2.206 filings and notifications under 10 C.F.R. Part 21 are
listed on Schedule 3.15, shall not be considered to be within the scope of this
-------------
representation.
3.16. EMPLOYEES. Schedule 3.16 contains a list of all collective
--------- -------------
bargaining agreements which relate to employees at the Facility where employment
relates primarily to the Acquired Assets (the "Collective Bargaining
Agreements"), true and correct copies of which have heretofore been made
available to the Buyer. Schedule 5.7(a) contains a true and complete list of
---------------
the Represented Plant Employees as of April 10, 2002; Schedule 5.7(b)(i)
------------------
contains a true and
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complete list of the Non-Represented Plant Employees as of April 10, 2002.
Except as described in Schedule 3.16: (i) there has been no work stoppage due to
-------------
labor disagreements experienced at the Facility in the past five (5) years; (ii)
all applicable Laws respecting employment and employment practices, terms and
conditions of employment (including, without limitation, Employee Benefit
Plans) and wages and hours relating to the Plant Employees have been complied
with in all material respects; (iii) no written notice has been received from
any Governmental Authority of any unfair labor practice charge or complaint
against such Seller or its Affiliates pending or threatened before the
National Labor Relations Board or any other Governmental Authority with respect
to such Plant Employees; (iv) no arbitration proceeding arising out of or under
any Collective Bargaining Agreement with respect to the Acquired Assets other
than proceedings arising in connection with individual employee grievance
procedures, is pending against such Seller or its Affiliates and (v) there is n
labor strike, slowdown or stoppage actually pending or threatened by any
authorized representative of any union or other representative of employees of
such Seller or its Affiliates related to the Acquired Assets against or
affecting such Seller or its Affiliates.
3.17. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 3.17 and/or
--------------------- -------------
the environmental audits or assessments referred to in the last sentence of this
Section 3.17, (i) there does not exist any violation of any Environmental Laws
applicable to the Acquired Assets, the violation of which would be likely to
have a Plant Material Adverse Effect, (ii) neither such Seller nor its
Affiliates have transported or arranged for the treatment, storage, handling,
disposal or transportation of any Hazardous Substance from the Facility to or at
any off-Site location that is an Environmental Clean-Up Site; (iii) the Site is
not an Environmental Clean-Up Site; (iv) no Releases of Hazardous Substances
have occurred at, from, on or under the Site; (v) to the Knowledge of such
Seller and NAESCO, no Hazardous Substances are present on or migrating from the
Site that are reasonably likely to give rise to a material Environmental Claim;
(vi) there are no Environmental Claims pending or, to the Knowledge of such
Seller and NAESCO, threatened against such Seller with respect to the Acquired
Assets; and (vii) there are no other facts or circumstances of which such Seller
has Knowledge that are reasonably likely to form the basis for an Environmental
Claim against such Seller with respect to the Acquired Assets. Except as
disclosed in Schedule 3.17, there are no underground storage tanks, active or
-------------
abandoned or polychlorinated-biphenyl containing equipment located on the Site.
All environmental audits or assessments regarding the Site conducted on or after
January 1, 1996 by, or on behalf of, or which are in the possession of such
Seller or its Affiliates, have been provided to the Buyer prior to execution of
this Agreement and all environmental audits or assessments regarding the Site
conducted prior to such date by, on behalf of, or which are in the possession of
such Seller or its Affiliates have also been provided to the Buyer prior to
execution of this Agreement.
3.18. CONDEMNATION. Except as set forth on Schedule 3.18, such Seller has
------------ -------------
received no written notice from any Governmental Authority of any pending
proceeding to condemn or take by power of eminent domain or otherwise, by any
Governmental Authority, all or any part of the Acquired Assets, which would be
likely to have a Plant Material Adverse Effect.
-34-
3.19. INTELLECTUAL PROPERTY. Except as set forth in Schedule 3.19, one or
--------------------- -------------
more of the Sellers or their Affiliates has ownership of, or license to use,
all of the Intellectual Property reasonably necessary for the operation of the
Acquired Assets and the rights of such Seller or its Affiliate in such (i) Owned
Intellectual Property relating to the Acquired Assets are freely transferable
and (ii) Licensed Intellectual Property relating to the Acquired Assets are
freely assignable. Except as set forth in Schedule 3.19, such Seller has not
-------------
received written notice of any claims or demands of any other Person pertaining
to any such Intellectual Property and no proceedings have been instituted, or
are pending or threatened, which challenge the rights of such Seller in respect
thereof. All licenses or other agreements under which the Sellers have granted
rights to Third Parties in Owned Intellectual Property are listed on Schedule
--------
3.19. Except as set forth in Schedule 3.19, all of such licenses or other
---- -------------
agreements are in full force and effect, there is no material default by any
party thereto, and all of such Seller's rights thereunder are freely assignable.
The business and activities of such Seller related primarily to the Facility do
not infringe any Intellectual Property of any other Person. Such Seller is not
making unauthorized use of any confidential information or trade secrets of any
Person, including without limitation any former employer of any past or present
employee of such Seller.
3.20. ACCOUNTING METHODS. Since December 31, 2001, accounting methods and
------------------
practices, credit practices and collection policies relating to the Facility
have not materially changed. During the three-year period ending December 31,
2001, all books and records relating to the Facility have been kept in
conformity with the Joint Ownership Agreement and the Managing Agent Operating
Agreement, using consistently applied methodology and principles of preparation,
and with all applicable requirements of Governmental Authorities.
3.21. COMPLETE COPIES. Except as specified in Schedule 3.21, true,
--------------- -------------
complete and unredacted copies of the Material Contracts, the Emergency
Preparedness Agreements, the Transferable Permits, the Title Commitment, the
Leases, NRC Commitments and the Other Assigned Contracts have been provided to
the Buyer.
3.22. OPERABILITY. The Acquired Assets constitute all of the material
-----------
assets necessary for the operation of the Facility in the manner in which it has
been operated during the 12-month period prior to the Effective Date, and,
except as disclosed in Schedule 3.22, said Acquired Assets are currently in a
-------------
condition sufficient to operate the Facility at full licensed thermal power
operation.
3.23. EMPLOYEE BENEFIT PROGRAMS. Schedule 5.7(d) lists, as of the
------------------------- ---------------
Effective Date, all Employee Benefit Plans established, sponsored, maintained or
contributed to (or to which there is an obligation to contribute) in respect of
the Plant Employees. Accurate and complete copies of all such Employee Benefit
Plans (excluding Multiemployer Plans) have been made available to the Buyer.
Except as disclosed in Schedule 5.7(d) with respect to the Acquired Assets
---------------
Employees, there is no obligation to contribute to, any Multiemployer Plan with
respect to Plant Employees. No liability under Title IV or Section 302 of ERISA
or Section 412 of the Code has been incurred with respect to the Acquired Assets
Employees that has not been satisfied in full,
-35-
other than liability for premiums due the Pension Benefit Guaranty Corporation,
which premiums have been paid to the extent due on or prior to the Effective
Date.
3.24. ZONING. The Real Property is currently zoned in zoning categories
------
which permit the operation of the Facility as operated as of the Effective Date
Such Seller has not requested, applied for, or given its consent to, any pending
zoning variance or change with respect to the zoning of the Real Property. There
exist no outstanding covenants or agreements in connection with the zoning of
the Real Property or any portion thereof which would bind or require Buyer to
perform any actions or pay any monies in connection therewith.
3.25. REAL PROPERTY; PLANT AND EQUIPMENT. Schedule 2.1(c) contains a
---------------------------------- ---------------
complete description of the major equipment components and personal property
comprising the Acquired Assets. Except for the exceptions listed in
Schedule 3.25, the Acquired Assets conform in all respects to the Technical
-------------
Specifications and the Final Safety Analysis Report (FSAR) and are being
operated in all respects in conformance with all applicable requirements under
Nuclear Laws, and the rules, regulations, orders and licenses issued thereunder,
except for such non-conformance thereof which, individually or in the aggregate,
would not be likely to have a Plant Material Adverse Effect.
3.26. DISCLAIMERS REGARDING ACQUIRED ASSETS. EXCEPT FOR ANY
-------------------------------------
REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE
RELATED AGREEMENTS OR ANY CERTIFICATES, EXHIBITS OR SCHEDULES HERETO AND
THERETO, (A) THE ACQUIRED ASSETS ARE SOLD "AS IS, WHERE IS AND WITH ALL FAULTS,"
(B) THE SELLERS AND NAESCO EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY OF
ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE
FACILITY, TITLE, CONDITION, VALUE OR QUALITY OF THE ACQUIRED ASSETS OR ANY PART
THEREOF OR THE PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF
THE ACQUIRED ASSETS, (C) THE SELLERS AND NAESCO SPECIFICALLY DISCLAIM ANY
REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE ACQUIRED ASSETS, OR ANY PART
THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS
THEREIN, WHETHER LATENT OR PATENT, AND (D) THE SELLERS AND NAESCO MAKE NO
FURTHER REPRESENTATION OR WARRANTY WITH RESPECT TO COMPLIANCE WITH ENVIRONMENTAL
REQUIREMENTS, OR WHETHER THE SELLERS POSSESS SUFFICIENT REAL PROPERTY OR
PERSONAL PROPERTY TO OPERATE THE ACQUIRED ASSETS. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT OR IN ANY RELATED AGREEMENT, THE SELLERS AND NAESCO
FURTHER SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE
ABSENCE OF HAZARDOUS SUBSTANCES OR LIABILITY OR POTENTIAL LIABILITY ARISING
UNDER ENVIRONMENTAL LAWS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY RELATED AGREEMENT,
-36-
THE SELLERS AND NAESCO EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY OF ANY
KIND REGARDING THE SUITABILITY OF THE FACILITY FOR OPERATION AS A POWER PLANT.
NO OTHER MATERIAL OR INFORMATION PROVIDED BY OR COMMUNICATIONS MADE BY THE
SELLERS OR ANY REPRESENTATIVE, OR BY ANY BROKER OR INVESTMENT BANKER, INCLUDING
WITHOUT LIMITATION ANY INFORMATION OR MATERIAL CONTAINED IN ANY OFFERING
MEMORANDUM OR REQUEST FOR BIDS AND ANY ORAL, WRITTEN OR ELECTRONIC RESPONSE TO
ANY INFORMATION REQUEST PROVIDED TO THE BUYER, WILL CAUSE OR CREATE ANY
WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, CONDITION, VALUE OR QUALITY OF
THE ACQUIRED ASSETS OR ANY PART THEREOF.
THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED BY THE PARTIES HERETO
AFTER DUE CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND
NEGATION OF ANY REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED OR
STATUTORY, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH
IN THIS AGREEMENT, THE RELATED AGREEMENTS OR ANY CERTIFICATE, EXHIBITS OR
SCHEDULES HERETO AND THERETO THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER
IN EFFECT. The disclaimers contained in this section are "conspicuous"
disclaimers. Any covenants implied by law or by the use of the words
"contribute," "grant," "convey," "assign," "transfer," or "deliver," or any
other words used in this Agreement are hereby expressly excluded, disclaimed,
waived and negated.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
-------------------------------------------
warrants to the Sellers as follows:
4.1. ORGANIZATION OF THE BUYER. The Buyer is a limited liability company,
-------------------------
duly organized, validly existing and in good standing under the Laws of the
State of Delaware. Copies of the certificate of formation and operating
agreement of the Buyer, as amended to date, have been heretofore made available
to the Sellers and are accurate and complete. The Buyer is, or on the Initial
Closing Date will be, qualified to conduct business in the State of New
Hampshire.
4.2. AUTHORITY, EXECUTION AND ENFORCEABILITY OF TRANSACTIONS. The Buyer
-------------------------------------------------------
has the power and authority to execute and deliver this Agreement and the
Related Agreements and, subject only to receipt of all Buyer Regulatory
Approvals, to perform its obligations hereunder and thereunder. All actions or
proceedings to be taken by or on the part of the Buyer to authorize and permit
the due execution and valid delivery by the Buyer of this Agreement, the Related
Agreements and the instruments required to be duly executed and validly
delivered by Buyer pursuant hereto and thereto, the performance by the Buyer of
its obligations hereunder and thereunder, and the consummation by the Buyer of
the transactions contemplated herein and therein, have been duly and properly
taken (and true and valid evidence thereof has been provided to Sellers). This
Agreement has been duly executed and validly delivered by the
-37-
Buyer, and assuming due execution and delivery by the Sellers, constitutes the
valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions, subject to applicable bankruptcy, insolvency,
moratorium and other Laws affecting the rights of creditors generally and the
application of general principles of equity (regardless of whether such
enforceability is sought in equity or at law). When each Related Agreement has
been executed and validly delivered by the Buyer and the Sellers and each other
party thereto, such Related Agreement will constitute a valid and legally
binding obligation of the Buyer, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium and other Laws
affecting the rights of creditors generally and the application of general
principles of equity (regardless of whether such enforceability is sought in
equity or at law). The Buyer acknowledges receipt and sufficiency of
consideration in regard to this Agreement and each of the Related Agreements.
4.3. NONCONTRAVENTION. Subject to the Buyer's obtaining its Buyer
----------------
Regulatory Approvals, neither the execution and delivery of this Agreement or
any of the Related Agreements, nor the consummation of the transactions
contemplated hereby and thereby, will (a) violate any Law to which the Buyer is
subject or any provision of its organizational documents or (b) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, Permit, license,
instrument, or other arrangement to which Buyer is bound or to which any of its
assets is subject, except for matters that would not be likely to have a
Material Adverse Effect on Buyer or its ability to perform its obligations under
this Agreement and the Related Agreements or that are disclosed on Schedule 4.3.
------------
4.4. CONSENTS AND APPROVALS. Except for Buyer Regulatory Approvals, no
----------------------
declaration, filing or registration with, or notice to, or authorization,
consent or approval of any Governmental Authority is necessary for the execution
and delivery of this Agreement or the Related Agreements by the Buyer, or the
consummation of the transactions contemplated hereby or thereby by the Buyer.
4.5. BROKERS' FEES. The Buyer has no Liability or obligation to pay any
-------------
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which the Sellers could become
liable or obligated.
4.6. LITIGATION. There are no claims, actions, proceedings or
----------
investigations pending or, to the Buyer's Knowledge, threatened before any
Governmental Authority which, individually or in the aggregate, would be likely
to have a Material Adverse Effect on Buyer's ability to perform its obligations
under this Agreement and the Related Agreements or that question the validity of
this Agreement or the Related Agreements or of any action taken or to be taken
pursuant to or in connection with the provisions of this Agreement or the
Related Agreements and which, individually or in the aggregate would be likely
to have a Material Adverse Effect on Buyer's ability to perform its obligations
under this Agreement and the Related Agreements. The Buyer is not subject to any
outstanding judgment, rule, order, citation, fine, penalty, writ, injunction or
decree of any court or Governmental Authority which, individually or in the
aggregate, would be
-38-
likely to have a Material Adverse Effect on Buyer's ability to perform its
obligations under this Agreement and the Related Agreements, and the Buyer has
not received any written notification that it is in violation of any Laws or
Permits with respect to its assets, except for notifications which would not,
individually or in the aggregate, be likely to have a Material Adverse Effect
on Buyer's ability to perform its obligations under this Agreement and the
Related Agreements. A petition filed or pending under 10 C.F.R. Section 2.206 or
Section 2.802, or any claim for review of any action thereon, or a notification
filed under 10 C.F.R. Part 21, shall not be considered to be within the scope of
this representation.
4.7. NO KNOWLEDGE OF BREACH. On the Effective Date, the Buyer has no
----------------------
Knowledge of any breach by NAESCO or any Seller of any representation or
warranty contained in Section 3 hereof, or of any condition or circumstance
that would excuse the Buyer from performance of its obligations under this
Agreement or the Related Agreements.
4.8. QUALIFIED BUYER. The Buyer has obtained or will obtain any Permits
----------------
necessary for the Buyer to own and operate the Acquired Assets as of the
Initial Closing Date, to the extent such operation is either required by any
Related Agreement or this Agreement, or is contemplated by the Buyer.
4.9. WARN ACT. The Buyer does not intend with respect to the Acquired
--------
Assets or Acquired Assets Employees to engage in a "plant closing" or "mass
layoff," as such terms are defined in the WARN Act, within sixty (60) days after
the Initial Closing Date.
4.10. NO IMPLIED WARRANTIES. THE BUYER IS NOT RELYING ON ANY
---------------------
REPRESENTATION OR WARRANTY MADE BY NAESCO OR ANY SELLER OR ITS AGENTS OR
REPRESENTATIVES, OR ANY BROKER OR INVESTMENT BANKER, EXCEPT FOR REPRESENTATIONS
AND WARRANTIES EXPRESSLY SET FORTH HEREIN, IN THE RELATED AGREEMENTS, IN
CERTIFICATES, EXHIBITS AND SCHEDULES HERETO AND THERETO AND IN THE INSTRUMENTS
OF TRANSFER AND CONVEYANCE (SUBJECT TO THE DISCLAIMERS AND LIMITATIONS OF
WARRANTIES SET FORTH HEREIN OR THEREIN).
4.11. ABSENCE OF CERTAIN EVENTS. Since December 31, 2001, to the Buyer's
-------------------------
Knowledge, there has not been any event which would be likely to have a Material
Adverse Effect on the Buyer's ability to perform this Agreement or any Related
Agreement.
4.12. AVAILABILITY OF FUNDS. The Buyer has provided the Sellers with true
---------------------
and valid (a) evidence that it will have sufficient funds available to it as of
the Initial Closing Date or Subsequent Closing Date, as the case may be, or (b)
binding written commitments from responsible financial institutions to provide
sufficient immediately available funds as of the Initial Closing Date or
Subsequent Closing Date, as the case may be, to pay the Relevant Facility
Purchase Price, the Relevant Fuel Purchase Price, the Relevant Unit 2 Purchase
Price, the NAEC
-39-
Real Property Purchase Price and any Estimated Adjustment, and to enable the
Buyer to perform all of its obligations under this Agreement.
5. COVENANTS. The Parties agree as follows:
--------- -----------------------------
5.1. GENERAL. Without limiting the rights of any Party to exercise its
-------
rights hereunder, each of the Parties will use Commercially Reasonable Efforts
to take all actions and to do all things necessary, proper or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
and the Related Agreements pursuant to this Agreement, prior to the date which
is twelve (12) months from the Effective Date for the Required Sellers and
fifteen (15) months from the Effective Date for the Remaining Sellers (including
satisfaction of the closing conditions set forth in Section 6). Notwithstanding
anything to the contrary set forth in this Agreement, all obligations of any
Seller specified in Schedule 3.5(iv) to consummate the transactions contemplated
---------------
hereby are subject to any rights of a Participant under the Joint Ownership
Agreement, and any such Seller shall, without Liability to the Buyer or any
other Seller (but preserving all rights and obligations of the Parties to enter
into the Agreement to Amend the Transmission Support Agreement), promptly take
any and all actions reasonably necessary or appropriate to comply with such
rights in accordance with the terms of the Joint Ownership Agreement.
5.2. NOTICES, CONSENTS AND APPROVALS.
-------------------------------
(a) XXXX-XXXXX-XXXXXX. Each of the Sellers and the Buyer shall, if
-----------------
required, file or cause to be filed with the Federal Trade Commission and the
United States Department of Justice any notifications required to be filed under
the Xxxx-Xxxxx-Xxxxxx Act and the rules and regulations promulgated thereunder
with respect to the transactions contemplated hereby and in the Related
Agreements. The Parties shall cooperate with each other and use Commercially
Reasonable Efforts to make such filings as promptly as possible after the
Effective Date, and to respond promptly to any requests for additional
information made by either of such agencies. The Buyer will pay all filing fees
under the Xxxx-Xxxxx-Xxxxxx Act, but each Party will bear its own costs for the
preparation of any filing. The Parties shall use Commercially Reasonable Efforts
to cause any waiting period under the Xxxx-Xxxxx-Xxxxxx Act with respect to the
transactions contemplated by this Agreement and the Related Agreements to expire
or terminate at the earliest possible time.
(b) CONSENTS AND APPROVALS.
----------------------
(i) The Buyer and the Sellers shall cooperate and use all
Commercially Reasonable Efforts with respect to their respective
obligations to (A) promptly prepare and file all necessary documentation,
(B) effect all necessary applications, notices, petitions and filings and
execute all agreements and documents, (C) obtain the transfer, issuance or
reissuance to the Buyer of all necessary Permits, (D) facilitate the
substitution of the Buyer for the Sellers where appropriate on pending
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Permits and (E) obtain all necessary consents, waivers, approvals and
authorizations of all other parties necessary or advisable to consummate
the transactions contemplated by this Agreement or any of the Related
Agreements (including, without limitation, Seller Regulatory Approvals and
Buyer Regulatory Approvals) or approvals required by the terms of any note,
bond, mortgage, indenture, deed of trust, license, franchise, Permit,
concession, contract, lease, warranty or other instrument to which any
Seller or Buyer is a party or by which any of them is bound. Without
limiting the generality of the foregoing, each of the Sellers and the Buyer
shall, as promptly as practicable after the Effective Date and in any event
by no later than forty-five (45) days after the Effective Date, make the
necessary filings and pursue receipt of those Buyer Regulatory Approvals,
Seller Regulatory Approvals and Requested Rulings for which each such
Seller or Buyer has responsibility.
(ii) The Buyer and the Sellers (promptly and on a coordinated
basis) each shall have the right to review and comment in advance on all
filings relating to the transactions contemplated by this Agreement or any
of the Related Agreements made by any Party in connection with the
transactions contemplated hereby or thereby. The Parties shall in good
faith consider such comments before making any such filings.
(iii) The Seller Representatives, for themselves and on behalf of
the other Sellers, shall use Commercially Reasonable Efforts to obtain all
necessary consents for assignment of Material Contracts, Permits, Leases,
and Emergency Preparedness Agreements. The Buyer shall cooperate with the
Seller Representatives and use Commercially Reasonable Efforts to
facilitate the obtaining of such consents. To the extent any Material
Contract relates to assets or services which are both related to the
operation of the Facility and used by any Seller in its other operations,
the Parties shall cooperate and use Commercially Reasonable Efforts in the
obtaining of such partial assignment,apportionment or other arrangement as
may be necessary and practicable to permit the Buyer to obtain such portion
of the assets or services necessary for continued operation of the Facility
on and after the Initial Closing Date or any Subsequent Closing Date, as
the case may be, and to permit such Seller to retain such other rights or
portion of the assets or services to continue its other operations on and
after such Closing Date, it being understood that, except as provided in
Section 5.2(b)(vi), such portion of the Material Contracts as may relate to
the Buyer's continued operation of the Facilities after the Initial
Closing Date must be assigned to or otherwise obtained by the Buyer as of
the Initial Closing Date pursuant to Section 2.1(g); provided, that (A) any
--------
cost of obtaining any such partial assignment, apportionment or other
arrangement shall be for Sellers' account. In no instance shall any Seller
commit to any arrangements outside the ordinary course of business
affecting the Buyer without the Buyer's consent, which shall not be
unreasonably withheld.
(iv) The Seller Representatives, for themselves and on behalf of
the other Sellers, shall use Commercially Reasonable Efforts to obtain all
necessary consents for assignment of the Intellectual Property Licenses;
provided that any cost of obtaining such assignment, or any cost of
obtaining a new license for Buyer, shall be for Seller's account. The
Buyer shall cooperate with the Seller Representatives and use Commercially
Reasonable Efforts to facilitate the obtaining of such consents. To the
-41-
extent any Intellectual Property License relates to Licensed Intellectual
Property which is both related to the operation of the Facility and used by
any Seller in its other operations, the Parties shall cooperate and use
Commercially Reasonable Efforts in the obtaining of such partial
assignment, apportionment or other arrangement as may be necessary and
practicable to permit the Buyer to obtain rights to use such Licensed
Intellectual Property for continued operation of the Facility on and after
the Initial Closing Date and to permit such Seller to retain such other
rights related to such Licensed Intellectual Property to continue its other
operations on and after the Initial Closing Date; provided, that any cost
of obtaining any such partial assignment, apportionment or other
arrangement, or any cost of obtaining a new license for Buyer,shall be for
Seller's account. In no instance shall any Seller commit to any
arrangements outside the ordinary course of business affecting the Buyer
without the Buyer's consent, which shall not be unreasonably withheld.
(v) The Seller Representatives shall use Commercially Reasonable
Efforts to obtain the necessary consents to assignment, including the
forwarding of notices of assignment or termination to vendors or invoking
the right to terminate the Other Assigned Contracts in cooperation with the
Buyer. To the maximum extent permitted by Law and each applicable Other
Assigned Contract, the Sellers appoint the Buyer as the Sellers' agent to
obtain all required consents of any party to each of the Other Assigned
Contracts for the assignment thereof to the Buyer, but in no instance shall
the Buyer commit any Seller to any arrangement affecting such Seller
without such Seller's consent. Pursuant to an agreed protocol and form
letters to be sent by Seller Representatives to all parties to Other
Assigned Contracts, the Seller Representatives, for themselves and on
behalf of the other Sellers, shall take all steps reasonably necessary to
assist the Buyer in obtaining necessary consents to assignment, including
the forwarding of notices of assignment or termination to vendors or
invoking the right to terminate Other Assigned Contracts for the Sellers'
convenience in cooperation with the Buyer. The Buyer shall use
Commercially Reasonable Efforts to obtain all such consents to assignment.
(vi) The Seller Representatives, for themselves and on behalf of
the other Sellers and NAESCO, agree that if any consent to an assignment of
a Material Contract shall not be obtained or if any attempted assignment
would in the reasonable judgment of the Seller Representatives be
ineffective or would impair any material rights and obligations of the
Buyer under such Material Contract, so that the Buyer would not in effect
acquire the benefit of all such rights and obligations, the Seller
Representatives, for themselves and on behalf of the other Sellers, to the
maximum extent permitted by law and such Material Contract, shall enter
into such other reasonable arrangements with the Buyer as are necessary to
provide the Buyer with the benefits and obligations of such Material
Contract, including enforcement for the benefit of the Buyer of any and all
rights of the Sellers or NAESCO against the other contract party arising
out of the default or cancellation by such contract party or otherwise.
The Seller Representatives, for themselves and on behalf of the other
Sellers, and the Buyer shall cooperate and shall each use Commercially
Reasonable Efforts after the Initial Closing Date to obtain an assignment
of each such Material Contract to the Buyer.
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(vii) The Sellers and the Buyer shall cooperate with each other
and promptly prepare and file notifications with, and request tax
clearances from state and local taxing authorities in jurisdictions in
which a portion of the Facility Purchase Price, the Fuel Purchase Price,
the Unit 2 Purchase Price or the NAEC Real Property Purchase Price may be
required to be withheld or in which Buyer would otherwise be liable for any
Tax Liabilities of the Sellers pursuant to state or local Tax Laws.
(c) NUCLEAR REGULATORY COMMISSION APPROVAL.
--------------------------------------
(i) APPLICATION. As promptly after the Effective Date as may be
-----------
feasible, the Buyer and the Sellers shall jointly prepare and file with the
NRC an Application. Thereafter, the Buyer and the Sellers, promptly and on
a coordinated basis, shall cooperate with one another to facilitate
review of the Application by the NRC Staff, including but not limited
to promptly providing the NRC Staff with any and all documents or
information that the NRC Staff may reasonably request or require any of
the Parties to provide or generate.
(ii) PROSECUTION OF APPLICATION. The Application shall identify
--------------------------
the Buyer, the Sellers and NAESCO collectively as separate parties to the
Application. In the event the processing of such Application by the NRC
becomes a Contested Proceeding, until such Contested Proceeding becomes
Final, the Buyer, the Sellers and NAESCO shall separately appear therein by
their own counsel, and shall continue to cooperate with each other to
facilitate a favorable result.
(iii) COSTS OF APPLICATION AND PROSECUTION. The Buyer and each
------------------------------------
Seller will each bear their own costs of the preparation, submission and
processing of the Application, including any Contested Proceeding that may
occur in respect thereof; provided, however, that the Buyer shall bear the
-------- -------
costs of all NRC Staff fees payable in connection with the Application.
In the event that the Parties agree upon the use of common counsel,
they shall share equally the fees and expenses of such counsel.
(iv) OTHER PROCEEDINGS. Except as specified above in this
-----------------
Section 5.2(c), none of the Sellers, NAESCO or any of their respective
Affiliates shall initiate or participate as an adverse party to the Buyer
in any proceeding before the NRC or any other Governmental Authority
relating to the transfer of the Facility, the transferof any of the
Acquired Assets or the Decommissioning Trusts. Should any other Person
initiate such a proceeding, Sellers shall assist Buyer in becoming a party
to such proceeding and, in any event, shall obtain Buyer's written
concurrence before entering into any agreement or stipulation in connection
with such proceeding; provided, that the foregoing shall not prevent any
Seller or NAESCO or any of their respective Affiliates from entering into
any such agreement or stipulation without the Buyer's written concurrence
which does not adversely affect the interest of Buyer.
5.3. OPERATION OF BUSINESS DURING INTERIM PERIOD.
-------------------------------------------
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(a) During the Interim Period, the Facility shall be operated and
maintained consistent with Good Utility Practices in accordance with the
Managing Agent Operating Agreement, unless otherwise contemplated by this
Agreement or with the prior written consent of the Buyer. Without limiting the
generality of the foregoing, the Sellers shall not, without the prior written
consent of the Buyer, during the Interim Period, with respect to the Acquired
Assets:
(i) sell, lease (as lessor), transfer or otherwise dispose of,
any of the Acquired Assets, other than as used, consumed or replaced in the
ordinary course of business consistent with Good Utility Practices, or
encumber, pledge, mortgage or suffer to be imposed on any of the
Acquired Assets any encumbrance other than Permitted Encumbrances, and
other than such additional financing under the Mortgage Indenture as
shall not prevent the Sellers from obtaining a Mortgage Indenture
release with respect to the Acquired Assets;
(ii) make any material change in the levels of Inventories
customarily maintained by the Sellers with respect to the Acquired Assets,
except for such changes as are consistent with Good Utility Practices;
(iii) enter into, amend, make any waivers under, or otherwise
modify any real or personal Property Tax Agreement, treaty or settlement or
make any new, or change any current, election with respect to Taxes
affecting the Acquired Assets;
(iv) except as described in Schedule 5.3(a)(iv), enter into any
------------------
commitment for the purchase or sale of Nuclear Fuel (A) where the aggregate
payments under all such commitments would be expected to exceed $1,000,000,
or (B) which is not terminable either (x) automatically on the Initial
Closing Date or (y) by option of the Buyer in its sole discretion at any
time after the Initial Closing Date without penalty or cancellation charge;
(v) terminate, make any waiver under, extend or materially
amend any of the Material Contracts, Emergency Preparedness Agreements,
Leases, Other Assigned Contracts or the Transferable Permits, except for
such terminations, extensions or amendments as are in the normal course of
business and consistent with Good Utility Practices and except as may
be necessary in order to transfer the Sellers' rights thereunder to the
Buyer at the relevant Closing;
(vi) enter into any contract or commitment which individually
exceeds $1,000,000 or any series of related contracts or commitments which
in the aggregate exceeds $5,000,000, unless such contract or commitment is
(A) to be fully performed prior to the Initial Closing Date or (B) can
be assigned to the Buyer and terminated by the Buyer at its option at
any time on or after the Initial Closing Date without penalty or
cancellation charge;
(vii) knowingly engage in any practice, take any action, fail to
take any action, or enter into any transaction that will result in any
misrepresentation or breach of warranty under Section 3 as of the
Initial Closing Date;
-44-
(viii) fail to take reasonably appropriate steps to pursue
currently pending regulatory approvals relating to the Facility;
(ix) amend in any material respect or cancel any property,
liability or casualty insurance policies related thereto, or fail to
maintain by self insurance, or with financially responsible insurance
companies, insurance in such amounts and against such risks and losses as
are customary for such assets and businesses;
(x) change, in any material respect, its accounting methods or
practices, credit practices or collection policies;
(xi) fail to take any actions required to be taken in order to
insure that (x) the Acquired Assets are being owned, operated and
maintained in all material respects in a manner that is in compliance with
Good Utility Practice and all applicable Laws or Permits or (y) the
reputation of the business of the Facility is preserved;
(xii) hire any Acquired Assets Employees (other than to replace
any Acquired Assets Employees who have resigned or been terminated) or
increase the compensation or benefits payable to any Acquired Assets
Employees, except as required under the Collective Bargaining Agreements or
other agreements as in existence on the Effective Date or consistent with
Sellers' or NAESCO's past practices; or
(xiii) initiate any regulatory proceeding potentially affecting
the amount or rate of Facility decommissioning funding, including but not
limited to NRC and NDFC proceedings.
Notwithstanding anything in this Section 5.3(a) to the contrary, the Sellers
may, in their sole discretion and consistent with the Joint Ownership Agreement
and the Managing Agent Operating Agreement, make or incur an obligation to the
extent relating to (i) Required Nuclear Expenditures or any repairs or
modifications to the Facility reasonably required in the normal course of
business and in accordance with Good Utility Practices (a "Required
Expenditure") or (ii) the Pre-Approved Capital Expenditures set forth on
Schedule 5.3. Without limiting the generality of the foregoing, the Parties
------------
agree that NAESCO shall retain exclusive control over all aspects of the
operation, maintenance, refueling, shutdown or other matters relating to the
Facility during the Interim Period, all in accordance with the Managing Agent
Operating Agreement and Good Utility Practices.
(b) During the Interim Period, in the interest of facilitating an
orderly transition of the management of the Acquired Assets and the Transfer of
Licenses and permitting informed action by the Buyer regarding its rights under
Section 5.3(a), the Parties shall, as promptly as is practicable after the
Effective Date, establish a committee comprised of at least five persons,
including the Divestiture Site Manager, two persons to be designated by the
Sellers and two persons to be designated by the Buyer, and such additional
persons as may be appointed by the persons originally appointed to such
committee (the "Transition Executive Committee"). From time to time, the
Transition Executive Committee shall report to the senior management of NAESCO,
on behalf of the Sellers, and the Buyer. The Transition Executive Committee
shall meet periodically and shall oversee and manage the transition process
during the Interim Period.
-45-
The Sellers and NAESCO shall consult with Buyer's representatives on the
Transition Executive Committee, on a regular and timely basis, with respect to
the refueling outage currently planned for May 2002, to any repairs to the
Facility contemplated by Section 5.11 and to the Pre-Approved Capital
Expenditures, Required Nuclear Expenditures and Required Expenditures. The
Transition Executive Committee shall have no authority to bind or make
agreements on behalf of the Sellers or the Buyer or to issue instructions to or
direct or exercise authority over the Sellers or the Buyer or any of their
respective officers, employees, advisors or agents or to waive or modify any
provision thereof. The Buyer in its sole discretion may send its management
personnel to the Facility at the Buyer's expense to continue the Buyer's
transition efforts with respect to the Acquired Assets. The Sellers shall
provide the Buyer, at no cost to the Buyer, interim furnished office space,
utilities and HVAC at the Facility reasonably necessary to allow the Buyer and
its representatives to conduct their transition efforts during the Interim
Period; provided that the Buyer shall be responsible for all other costs
--------
relating thereto, including telecommunications expenses and the cost of workers'
compensation and employer's liability coverage, which will be maintained by the
Buyer for its employees. The Buyer will have no greater than six (6) of its
employees or representatives present at such interim office space or on the Site
on a full-time basis, unless otherwise authorized in writing by the Seller
Representatives.
(c) The Buyer may from time to time request that certain actions be
taken to improve or enhance the operation and maintenance of the Acquired Assets
during the period between the Effective Date and the Initial Closing Date (the
"Proposed Improvements"). To the extent such Proposed Improvements (i) will not
interfere with safety or reliability in the operation and maintenance of the
Facility or the Acquired Assets, (ii) are not inconsistent with the Business
Plan, (iii) do not violate Good Utility Practices, applicable Laws or other
obligations of the Sellers under NEPOOL or ISO-NE, and (iv) are consistent with
the Managing Agent Operating Agreement and the Joint Ownership Agreement, the
Sellers shall consult with NAESCO and they shall reasonably consider such
Proposed Improvements and take such action to implement such Proposed
Improvements as they deem appropriate in their sole discretion. In the event
NAESCO and the Sellers shall determine that such Proposed Improvements do not
meet the criteria set forth in the previous sentence or are otherwise excessive
under Good Utility Practices, then the Seller Representatives shall so inform
the Buyer in writing that such Proposed Improvements shall not be implemented.
(d) During the Interim Period, the Seller Representatives shall use
Commercially Reasonable Efforts to assist the Buyer with its efforts to plan for
and implement the transition of ownership and operation of the Acquired Assets
from the Sellers to the Buyer.
(e) In the event the Buyer, on the one hand, or any Seller, on the
other hand, believes the other Party has breached any of its obligations under
this Section 5.3, the Buyer or the Seller Representatives shall submit such
dispute to dispute resolution pursuant to Section 12.
5.4. ACCESS AND INVESTIGATIONS DURING INTERIM PERIOD. In addition to the
-----------------------------------------------
access permitted in Section 5.3(b), during the Interim Period, the Sellers will
require NAESCO to permit a maximum of twelve (12) designated officers, employees
or agents of the Buyer to have
-46-
access, pursuant to the procedures set forth in Section 5.4(b), (i) to observe
and inspect all premises, properties, management, personnel, books, records,
(including tax records), and other information, including, without limitation,
all information necessary to enable the Buyer to verify the Sellers'
representations and warranties as set forth in Section 3 and to confirm that the
Sellers have complied with the covenants set forth herein, and any other
information or documents associated with or pertaining to the Acquired Assets
and (ii) to plan for and facilitate an orderly transition of ownership of the
Acquired Assets and operation of the Facility from the Sellers to the Buyer. All
access and inspections by the Buyer are subject to the following provisions:
(a) COSTS. All costs of such investigations and observations,
-----
including but not limited to the compensation paid to the Persons involved and
their expenses, and other discrete incremental costs incurred by the Sellers in
connection with such investigation and observation, shall be borne by the Buyer.
(b) PHYSICAL ACCESS (ESCORTED AND UNESCORTED).
-----------------------------------------
(i) The Buyer shall, with respect to each Person designated by
the Buyer to have escorted access to the Facility, provide the following
information for each such Person to the Divestiture Site Manager for the
Facility (or his designee) no later than twenty-four (24) hours prior to
the proposed time of access by such Person: name, date of birth, social
security number, and the name of each nuclear power plant at which such
Person has a current badge for unescorted access. The Sellers shall be
permitted where necessary in their sole discretion to limit the number
of Persons to whom escorted access is provided at any one time on
account of reasonable logistical considerations.
(ii) Subject to the immediately succeeding sentence, the Buyer
shall, with respect to each Person designated by the Buyer to have
unescorted access to the Facility, provide reasonable notice to the
Divestiture Site Manager for the Facility (or his designee), so as not to
interfere with the normal business operations of the Facility, and such
Person shall comply with all existing requirements of the Facility and NRC
for unescorted access, including, but not limited to, background
investigation, training requirements, fitness-for-duty requirements, a
psychological assessment and behavioral observation.
(iii) In the event that the Buyer shall have a fitness-for-duty
program meeting the requirements of 10 C.F.R. Part 26, the Buyer may
request that any Person subject to such program be excused from compliance
with the fitness-for-duty program of NAESCO for up to ninety days, in which
event the provisions of 10 C.F.R. Section 26.23 shall be applicable to
such Person designated by the Buyer to have unescorted access to the
Facility. The Buyer shall reimburse the Sellers for the cost of reviewing
and auditing the Buyer's fitness-for-duty program, as required by 10 C.F.R.
Section 26.23.
(iv) Irrespective of whether a Person has qualified for escorted
or unescorted access pursuant to this Section 5.4(b), the Sellers shall
have the right to withhold access to any area of the Facility that
would reveal "Safeguards Information,"
-47-
"Classified National Security Information" or "Restricted Data," as
defined in 10 C.F.R. Part 73, to any Person to whom such information is not
to be made available under Section 5.4(c).
(c) ACCESS TO RECORDS AND INFORMATION.
---------------------------------
(i) Under no circumstances shall any Seller be required to
provide access to any documents or information constituting or containing
"Classified National Security Information" or "Restricted Data," as defined
in 10 C.F.R. Part 73. The Sellers shall not be required to provide access
to any documents or information constituting or containing "Safeguards
Information," as defined in 10 C.F.R. Part 73, except to any Person
designated by the Buyer to have access to such information and the
Buyer shall have first obtained authorization or concurrence from the
NRC for the disclosure of such information to such Person.
(ii) Except as provided in clause (i) above, the Buyer shall
have the right to receive copies of all documentary information and records
associated with the Acquired Assets subject to the provisions of Section 7.
(d) LIMITATIONS. Notwithstanding anything to the contrary in this
-----------
Section 5.4, each Seller shall: (i) only furnish or provide such access to
confidential personnel records and medical records as is allowed by applicable
Laws, (ii) not provide any information that such Seller or such Seller's counsel
reasonably believes constitutes or could reasonably be deemed to constitute a
waiver of the attorney-client privilege, and (iii) not be required to supply the
Buyer with any information that such Seller is under a legal obligation not to
supply; provided that the Sellers shall use Commercially Reasonable Efforts to
obtain the consent to disclose all material information otherwise described in
this Section 5.4.
(e) CONTACT WITH SELLER-RELATED PERSONS. Prior to the Initial
-----------------------------------
Closing Date, the Buyer shall not contact any vendors, suppliers, contractors,
customers or employees of the Sellers or NAESCO regarding the Facility, the
Acquired Assets or the transactions contemplated in this Agreement and the
Related Agreements without prior written consent of the relevant Seller, which
shall not be unreasonably withheld or delayed, and any such permitted contacts
shall be conducted in a manner which will not materially adversely interfere
with the operations or business relationships of the relevant Seller or NAESCO
with such Persons.
5.5. CERTAIN NOTICES.
---------------
(a) Each Seller shall notify the Buyer in writing of the existence of
any matter that becomes known to such Seller, which, if in existence on the
Effective Date or the Initial Closing Date would cause or would have a
reasonable likelihood of causing any of the representations or warranties in
Section 3 to be materially untrue or incorrect, and each Remaining Seller shall
notify the Buyer of the existence of any matter that becomes known to
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such Remaining Seller, which, if in existence on the relevant Subsequent Closing
Date would cause or would have a reasonable likelihood of causing any of the
representations or warranties in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7(b),
3.7(c), 3.8, 3.9, 3.12 or 3.13(e) to be materially untrue or incorrect. Unless
the Buyer terminates this Agreement pursuant to Section 10.1(c)(vi), the written
notice pursuant to this Section 5.5(a) shall be set forth on an amended Schedule
or Schedules acceptable to the Parties which shall be deemed to replace the
original Schedule or Schedules as of the Effective Date and the relevant Closing
Date, to have qualified the relevant representations and warranties contained in
Section 3 as of the Effective Date and such Closing Date, and to have cured any
misrepresentation or breach of warranty that otherwise might have existed
hereunder by reason of the existence of such matter.
(b) The Buyer shall notify the Seller Representatives of the
existence of any matter that becomes known to the Buyer, which if in existence
on the Effective Date, the Initial Closing Date or any Subsequent Closing Date
would cause or would have a reasonable likelihood of causing any of the
representations or warranties in Section 4 to be untrue or incorrect. Unless the
Seller Representatives terminate this Agreement pursuant to Section 10.1(d)(vii)
by reason of such notice, the written notice pursuant to this Section 5.5(b)
shall be deemed to replace the original Schedule or Schedules as of the
Effective Date and such Closing Date, to have qualified the representations and
warranties contained in Section 4 as of the Effective Date and such Closing
Date, and to have cured any misrepresentation or breach of warranty that
otherwise might have existed hereunder by reason of the existence of such
matter.
(c) The Buyer shall notify the Seller Representatives if any
information comes to its attention which would cause or would have a reasonable
likelihood of causing any of the representations or warranties of the Sellers in
Section 3 above to be materially untrue or incorrect.
(d) Each Seller shall notify the Buyer if any information comes to
its attention which would cause or would have a reasonable likelihood of causing
any of the representations and warranties of the Buyer in Section 4 above to be
materially untrue or incorrect.
5.6. FURTHER ASSURANCES.
------------------
(a) On and after the Initial Closing Date or any Subsequent Closing
Date, as the case may be, without further payment, at the request of a Closing
Party, the other Closing Party will execute and deliver such additional
instruments of sale, transfer, conveyance, assignment and confirmation and take
such additional action as is necessary to transfer, convey and assign to the
Buyer and for the Buyer to assume and accept, in each case in accordance with
the terms hereof, the Sellers' Proportionate Ownership of the Acquired Assets
and Assumed Liabilities or to put the Buyer in actual possession and operating
control of the Acquired Assets and/or to cause the Sellers to be released from
their Proportionate Ownership of the Assumed Liabilities.
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(b) To the extent that, after the Initial Closing Date or any
Subsequent Closing Date, as the case may be, it is determined that any asset
that is an Acquired Asset shall not have been conveyed to the Buyer on such
Closing Date, the Sellers shall, subject to Section 5.6(c), use their best
efforts to convey the Ownership Shares of the Sellers' right, title and interest
in such asset to the Buyer as promptly as is practicable after the Initial
Closing Date or such Subsequent Closing Date, as the case may be. In the event
that any other access, transmission, distribution or communication easements
reasonably necessary to PSNH in connection with the operation or maintenance of
the 345 kV Substation, including, without limitation, the transmission and
distribution of power, shall not have been retained by the Sellers on the
Initial Closing Date, the Buyer shall grant to PSNH if it is within Buyer's
control to do so, and shall use its Commercially Reasonable Efforts to obtain
for PSNH if the agreement of a Third Party is required to do so, such easements
as promptly as practicable after such Closing Date; provided that such easements
shall not interfere with the Buyer's operation of the Facility or any plans to
expand the Facility or modify generation capacity at the Site.
(c) To the extent the rights of any Seller under any contract or
Permit included as an Acquired Asset other than a Material Contract,
Transferable Permit, Emergency Preparedness Agreement or Lease, may not be
assigned without the consent of another Person which consent has not been
obtained on or prior to the Initial Closing Date, this Agreement shall not
constitute an agreement to assign the same if an attempted assignment would
constitute a breach thereof or be unlawful. The Sellers and the Buyer agree that
if any consent to an assignment shall not be obtained, or if any attempted
assignment would be ineffective or would impair the Buyer's rights and
obligations under the applicable contract, so that the Buyer would not in effect
acquire the benefit of all such rights and obligations, (i) the Seller
Representatives, to the maximum extent permitted by Law and such contract, shall
appoint the Buyer to be Sellers' agent with respect to such contract or Permit
for the purpose of obtaining an assignment thereof to the Buyer, following which
the Buyer shall use its Commercially Reasonable Efforts to obtain such
assignment, and (ii) the Seller Representatives shall, to the maximum extent
permitted by Law and such contract, enter into such reasonable agreements with
the Buyer as are necessary to permit the Buyer to obtain the benefits and
obligations of such contract or Permit; provided, that the exercise by the Buyer
--------
and the Seller Representatives of the terms of this Section 5.6(c) shall in no
event constitute a waiver of the condition to Closing set forth in
Section 6.1(g) and 6.2(f) with respect to the delivery of the consents, waivers
and approvals described in Section 2.11(a)(xii). The Seller Representatives and
the Buyer shall cooperate and shall each use their Commercially Reasonable
Efforts after the Initial Closing Date to obtain an assignment of such contracts
to the Buyer including the Buyer's express written agreement to assume and
perform such Seller's obligations thereunder from and after such Closing.
(d) To the extent that during the Interim Period or after the Initial
Closing Date the Parties shall identify any additional assets of the Sellers or
portions thereof (including, without limitation, software or other Intellectual
Property) which are (i) related to the operation of the Facility, (ii)
reasonably necessary for the Buyer's operation of the Facility, and (iii)
omitted from Schedule 2.1(v) (other than by agreement of the Parties), the
--------------
Parties shall amend Schedule 2.1(v) to include such assets. The Seller
---------------
Representatives shall use their best efforts to convey such additional assets to
the Buyer or facilitate the acquisition thereof from a Third
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Party; provided, that any cost or increased cost of obtaining such assets or
--------
rights from a Third Party arising at any time shall be for the Seller's account.
(e) To the extent that the rights of any Seller under any warranty or
guaranty described in Section 2.1(c) (except for warranties in Material
Contracts and Leases) may not be assigned without the consent of another Person,
which consent has not been obtained by the Initial Closing Date, this Agreement
shall not constitute an agreement to assign the same, if an attempted assignment
would constitute a breach thereof or be unlawful. The Parties agree that if any
consent to an assignment of any such warranty or guaranty would be ineffective
or would impair the Buyer's rights and obligations under the warranty or
guaranty in question, so that the Buyer would not substantially receive such
rights and obligations, the Seller Representatives, to the extent permitted by
Law and such warranty and guaranty, shall appoint the Buyer to be the Sellers'
agent for the purpose of enforcing such warranty or guaranty, so as to the
maximum extent possible, provide the Buyer with the rights and obligations of
such warranty or guaranty. Notwithstanding the foregoing, the Seller
Representatives shall not be obligated to bring or file suit against any Third
Party; provided that if the Seller Representatives shall determine not to bring
--------
or file suit after being requested by the Buyer to do so, the Seller
Representatives shall, to the maximum extent permitted by Law and any applicable
agreement or contract, enter into such reasonable agreements with the Buyer so
that the Buyer may bring or file such suit with respect to the rights of such
Seller.
5.7. EMPLOYEE MATTERS.
----------------
(a) The Buyer agrees to offer, in writing, employment, commencing as
of 12:01 a.m. on the Initial Closing Date, for a period of at least twelve (12)
months (the "Minimum Employment Period") from such date, to all employees of
NAESCO who are represented by the Local and who were employed in represented
positions in the operation of the Acquired Assets at any time during the
three-month period prior to the Initial Closing, as set forth in Schedule 5.7(a)
--------------
(the "Represented Plant Employees"). Those employees who accept, in writing,
such offer of employment are hereinafter referred to as the "Represented
Employees." All such offers of employment shall be made in accordance with all
applicable Laws and regulations and the Collective Bargaining Agreement.
Effective as of the Initial Closing Date, the Buyer shall agree to be bound by
the terms of the Collective Bargaining Agreement with respect to the Represented
Employees as if the Buyer were the Seller for purposes of such Collective
Bargaining Agreement, and to thereafter comply with all applicable obligations
thereunder, subject to the changes negotiated with and acceptable to the Local.
The Buyer shall take, or cause to be taken, all actions, or do, or cause to be
done, all things necessary, proper or advisable with respect to the Collective
Bargaining Agreement as the Sellers shall reasonably request, including becoming
a party to the Collective Bargaining Agreement for the duration of its term as
it relates to the Represented Employees, and the Buyer shall comply with all
applicable obligations under the Collective Bargaining Agreement.
(b) The Buyer agrees to offer, in writing, employment, commencing as
of 12:01 a.m. on the Initial Closing Date, for at least the Minimum Employment
Period, to all
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employees of NAESCO who were employed in the operation of the Acquired
Assets at any time during the three-month period prior to the Initial Closing
Date, other than Represented Plant Employees, as set forth in Schedule 5.7(b)(i)
------------------
(the "Non-Represented Plant Employees," together with the Represented Plant
Employees, the "Plant Employees"), at levels of wages and benefits in the
aggregate not less than the level of wages and benefits in the aggregate of each
such Non-Represented Plant Employee in effect immediately prior to the Initial
Closing Date. The Non-Represented Plant Employees who accept, in writing, such
offer of employment are hereinafter referred to as the "Non-Represented
Employees," and the Non-Represented Employees and the Represented Employees are
hereinafter collectively referred to as the "Acquired Assets Employees." Plant
Employees who decline to accept such offer of employment shall not be entitled
to any severance or other benefits on account of such declination. The Buyer
shall provide to any Non-Represented Employee who is terminated for reasons
other than cause during the Minimum Employment Period those severance benefits
described in Schedule 5.7(b)(ii). The Buyer shall provide to any Non-Represented
------------------
Employee whose employment is terminated involuntarily during the six (6) month
period immediately following the Minimum Employment Period out-placement
assistance and tuition reimbursement consistent with that described in Schedule
--------
5.7(b)(iii).
----------
(c) As soon as practical after the Effective Date, the Buyer shall
take all action necessary or appropriate to establish and maintain a tax
qualified pension plan for the Acquired Assets Employees (the "Buyer's Plan"),
which Buyer's Plan shall provide, with respect to relevant Acquired Assets
Employees who leave employment with the Buyer or subsequent buyers, for the
following:
(i) The Buyer shall provide a level of pension benefits not
lower than such level of pension benefits calculated using the pension
benefit formula applicable to each relevant Acquired Assets Employee under
the NUSCO Retirement Plan (the "Plan") as of the Initial Closing Date. The
Buyer's obligation under the Buyer's Plan will be calculated as the
difference between (A) the total pension benefit of such Acquired Assets
Employee as calculated as of such Acquired Assets Employee's retirement
date with Buyer using (1) the pension benefit formula and actuarial factors
that would have been applicable to the Acquired Assets Employee if he or
she had continued to participate in the Plan as the Plan was in effect on
the Initial Closing Date, (2) the "final average earnings" (as defined in
the Plan) as of such Acquired Assets Employee's retirement date with the
Buyer, taking into account compensation credited under the Plan through the
Initial Closing Date and earned from NAESCO or any of its Affiliates and
the Buyer, (3) such Acquired Assets Employee's total years of service under
the Plan as of the Initial Closing Date plus years of service with the
Buyer as of such Acquired Asset Employee's retirement date with the Buyer,
and (4) "covered compensation" (as defined in the Plan) as of such
Acquired Assets Employee's retirement date with the Buyer, and (B) the
pension benefit payable to such Acquired Assets Employee by NAESCO or any
of its Affiliates at retirement determined as follows: the pension benefit
payable to each Acquired Assets Employee by NAESCO or any of its Affiliates
shall be calculated by the Sellers as of the Initial Closing Date, based
upon (1) the pension benefit formula under the Plan applicable to such
Acquired Assets Employee as of the Initial Closing Date, (2) years of
credited service of such Acquired Assets Employee under the Plan as of the
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Initial Closing Date, (3) the "final average earnings" (as defined in
the Plan) of such Acquired Asset Employee as of the Initial Closing Date,
and (4) the "covered compensation" (as defined in the Plan) as of the
Initial Closing Date.
(ii) NAESCO or its Affiliates shall provide each Acquired Assets
Employee with a vested and non-forfeitable right to a benefit equal to
his/her accrued benefit under the Plan determined as of the Initial Closing
Date as described in Section 5.7(c)(i) above.
(iii) The Buyer shall permit any Acquired Asset Employee whose
age is 55 or older to retire with full pension benefits if the sum of such
Acquired Assets Employee's age and years of credited service (credited
under the Plan as of the Initial Closing Date plus years of service with
the Buyer) equals 85 at such Acquired Assets Employee's termination date
(the "Rule of 85"). The Buyer shall apply the Rule of 85 to all
Acquired Assets Employees.
(iv) If any Acquired Assets Employee who is age 50 to 54 years
on the Announcement Date and whose age plus years of credited service
equals or exceeds 65 years (an "Eligible Acquired Assets Employee") is
involuntarily separated from employment with the Buyer, the Buyer shall
provide the benefits described in Schedule 5.7(c)(iv) to such Eligible
Acquired Assets Employee.
(d) The Buyer shall establish and maintain for the Non-Represented
Employees for the Minimum Employment Period plans and programs which, in the
aggregate, shall be generally comparable to the plans and programs provided to
such Acquired Assets Employees by NAESCO or any of its Affiliates as of the
Effective Date as listed on Schedule 5.7(d).
--------------
(e) The Buyer shall apply the period of each Acquired Assets
Employee's prior service with NAESCO or any of its Affiliates or any other
service credited under NAESCO's or its Affiliates' applicable employee benefit
plan toward any eligibility, vesting or other waiting period requirements
(including but not limited to eligibility for actuarially unreduced early
retirement benefits, pension benefits, life insurance, health care benefits and
vacation and sick time) under the Buyer's Employee Benefit Plans (including the
Buyer's Plan) to the extent such conditions were satisfied under the Employee
Benefit Plans prior to the Initial Closing Date. The Acquired Assets Employees
shall be treated as having continuous years of service under the Buyer's
Employee Benefit Plans (including the Buyer's Plan) which includes their years
of service with NAESCO or its predecessor or Affiliate. The Buyer shall waive,
with respect to the Acquired Assets Employees and their spouses and dependents,
if applicable, all limitations with respect to preexisting medical conditions,
exclusions and waiting periods with respect to participation and coverage
requirements under the Buyer's Employee Benefit Plans and will give the Acquired
Assets Employees credit for any moneys paid toward the annual deductible under
such plans as of the Initial Closing Date. The Buyer shall vest each Acquired
Assets Employee to the extent such Acquired Assets Employee is vested under the
NAESCO or NUSCO Employee Benefits Plans (including the Plan) as of the Initial
Closing Date.
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(f) Within a reasonable time prior to the Initial Closing Date, the
Seller Representatives shall provide the Buyer with such pertinent data or
information as the Buyer shall reasonably require to determine each Acquired
Assets Employee's service, compensation and accrued benefits under the Plan
before the Initial Closing Date. To the extent the consent of an Acquired Asset
Employee is required in order for the Seller Representatives to deliver any such
pertinent data or information or such other Acquired Asset Employee Records to
the Buyer, the Seller Representatives, for themselves and on behalf of the other
Sellers, agree to use Commercially Reasonable Efforts to secure such consent.
(g) The Sellers shall provide and remain liable for any and all
continuation of coverage under the Employee Benefit Plans of such Sellers as
required under paragraphs 601 through 608 of ERISA and paragraph 4980B of the
Code with respect to any person as to whom a "qualifying event" as defined in
paragraph 4980B of the Code occurred prior to the Initial Closing Date.
(h) Effective as of 12:01 a.m. on the Initial Closing Date, the
Acquired Assets Employees shall cease to be employees of NAESCO, and the Sellers
shall be solely responsible for the payment of all wages and compensation
legally owing to or with respect to the Acquired Assets Employees prior to
12:01 a.m. on the Initial Closing Date. The Sellers shall retain any and all
Liability under the Employee Benefit Plans of the Sellers for retirees as of the
Initial Closing Date.
The Sellers shall timely perform and discharge all requirements under the WARN
Act and under applicable state and local Laws for the notification of employees
arising from the sale of the Acquired Assets to the Buyer prior to the Initial
Closing Date, including those Plant Employees who will become Acquired Assets
Employees effective as of the Initial Closing Date. On and after the Initial
Closing Date, the Buyer shall be responsible for performing and discharging all
requirements under the WARN Act and under all applicable Laws and regulations
for the notification of its employees, whether Acquired Assets Employees or
otherwise. All severance and other costs associated with workforce restructuring
activities associated with the Acquired Assets and/or the Acquired Assets
Employees on and after the Initial Closing Date shall be borne solely by the
Buyer, and the Buyer shall not charge or otherwise seek reimbursement or
proration from any of the Sellers for any such costs.
5.8. COOPERATION AFTER INITIAL CLOSING DATE.
--------------------------------------
(a) RECORDS AND SUPPORT. After the Initial Closing Date, each Seller
-------------------
shall have reasonable access to and rights to copy all of the records, books,
data (in whatever form) and documents related to the Acquired Assets to the
extent that such access may reasonably be required by such Seller in connection
with matters relating to or affected by the ownership or operation of the
Facility by such Seller prior to the Initial Closing Date. Such access shall be
afforded by the Buyer upon receipt of reasonable advance notice and during
normal business hours. Each Seller shall be solely responsible for any costs or
expenses incurred by it pursuant to this Section 5.8(a). If the Buyer desires to
dispose of any records, books, data (in whatever form) or documents that may
relate to operation of the Facility prior to the Initial Closing Date, the Buyer
shall, prior to such disposition, give the Seller Representatives a period of
ninety (90)
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days, at the Sellers' expense, to segregate and remove such records, books, data
(in whatever form) or documents as the Seller Representatives or any Seller may
select; provided, that the Buyer shall not have any obligation to the Sellers to
maintain any such records, books, data (in whatever form) or documents relating
to the operation of the Facility prior to the Initial Closing Date beyond six
(6) years following the Initial Closing Date.
(b) EMPLOYEES. After the Initial Closing Date, the Parties shall have
---------
reasonable access to the employees of the other Parties, for purposes of
consultation or otherwise, to the extent that such access may reasonably be
required, in the case of the Buyer, in connection with matters relating to or
affected by the operations of the Sellers prior to the Initial Closing Date or
in the case of the Sellers, operations of the Buyer during the period on and
following the Initial Closing Date and prior to the date of the last Closing.
The Buyer shall cooperate with the Sellers on and after the Initial Closing Date
to provide employee-related information as may be reasonably required by the
Sellers for rate making and other regulatory purposes.
(c) INVESTIGATIONS AND LITIGATION. The Parties agree to cooperate in
-----------------------------
connection with any audit, investigation, hearing or inquiry by any Governmental
Authority, litigation or regulatory or other proceeding which may arise
following the Initial Closing Date and which relates to the ownership and
operation of the Facility by the Sellers prior to the Initial Closing Date or
ownership and operation of the Facility by the Buyer on or after the Initial
Closing Date, including litigation or regulatory or other proceedings relating
or pertaining to the DOE's defaults under the DOE Standard Contracts.
Notwithstanding any other provision of this Agreement to the contrary, each
Party shall bear its own expenses, including fees of attorneys or other
representatives, in connection with any such matter described in this
Section 5.8(c) in which the Sellers and the Buyer or their respective Affiliates
are subjects or parties or in which they have a material interest.
(d) POLLUTION CONTROL REVENUE BONDS.
-------------------------------
(i) The Buyer acknowledges that:
(A) The facilities listed in Schedule 5.8(d) hereto (the
--------------
"Pollution Control Facilities") have been financed, and
refinanced, in whole or in part, with proceeds of the
issuance and sale of the Pollution Control Bonds;
(B) PSNH, UI, Canal and NEP are each the economic obligor
and conduit borrower in respect of certain of the
Pollution Control Bonds, as specified in Schedule
--------
2.4(m);
-----
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(C) The interest paid or accrued on the Pollution Control
Bonds is not included in the gross income of the
holders of the Pollution Control Bonds (the "PC
Bondholders") for purposes of federal income taxation;
(D) Pursuant to the Internal Revenue Code of 1954, as
amended, and the Code, the basis for the federal income
tax exclusion for interest payable to the PC
Bondholders is the use of the Pollution Control
Facilities for certain qualified purposes which include
(I) the abatement or control of air or atmospheric
pollution or contamination, (II) the abatement or
control of water pollution or contamination, (III)
sewage disposal, and/or (IV) the disposal of solid
waste;
(E) The use of all or part of the Pollution Control
Facilities for a purpose other than the qualifying
purpose or purposes described in subclause (D) above
for which the Pollution Control Bonds that financed or
refinanced them were issued may cause (I) the interest
payable on all or part of the Pollution Control Bonds
to be includable in the federal gross income of the PC
Bondholders possibly with retroactive effect, unless
remedial action is promptly taken to redeem or defease
the Pollution Control Bonds or a portion thereof,
and/or (II) the deductibility of the interest payable
by PSNH, UI, Canal or NEP on all or part of the
Pollution Control Bonds to be disallowed by Section
150(b) of the Code; and
(F) Any breach by the Buyer or any subsequent transferee of
all or any part of the Pollution Control Facilities of
its obligations under this Section 5.8(d) could result
in the incurrence by PSNH, UI, Canal or NEP of
additional costs and expenses, including, but not
limited to, an increase in the rate of interest
required to be paid to the PC Bondholders, liability to
some or all of the PC Bondholders for their failure to
include interest payable on the Pollution Control Bonds
in their respective federal gross income in the event
of a Final determination of taxability by the IRS, loss
of the interest deduction to PSNH, UI, Canal or NEP
under Section 150(b) of the Code and transaction costs
relating to any refinancing, redemption and/or
defeasance of all or part of the Pollution Control
Bonds.
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(ii) In order to avoid any or all of the consequences described
in clauses (E) and (F) above, the Buyer agrees that it will not use, or
permit the use of, all or part of the Pollution Control Facilities for any
purpose except (x) the current use of such Pollution Control Facilities or
(y) as "sewage or solid waste disposal facilities" or "air or water
pollution control facilities" within the meaning of Section 103(b)(4)(E) or
(F) of the Internal Revenue Code of 1954, as amended, as contemplated by
the tax compliance documents or non-arbitrage certificates for the
Pollution Control Bonds that financed or refinanced such Pollution Control
Facilities (copies of which with respect to all of the Pollution Control
Facilities have been provided to the Buyer by NAEC or PSNH, UI, Canal or
NEP), unless the Buyer shall have obtained at its own expense an opinion of
nationally recognized bond counsel reasonably acceptable to NAEC or PSNH,
UI, Canal and NEP ("Bond Counsel") addressed to and reasonably
satisfactory to NAEC or PSNH, UI, Canal and NEP that such proposed change
in use of the Pollution Control Facilities or part thereof will not impair
(x) the exclusion from gross income of the interest on any Pollution
Control Bonds for federal income tax purposes or (y) the deductibility of
the interest payable on any Pollution Control Bonds by PSNH, UI, Canal or
NEP under Section 150(b) of the Code.
(iii) The provisions of Section 5.8(d)(ii) shall not prohibit
the Buyer from ceasing to operate, maintain or repair any element or item
of the Pollution Control Facilities, suspending the operation of the
Pollution Control Facilities on a temporary basis, or terminating the
operation of the Pollution Control Facilities on a permanent basis and
shutting down the Pollution Control Facilities; provided, however, that
-------- -------
the Pollution Control Facilities, in whole or in part, shall not be
maintained in such a manner as to prevent their being reactivated and used
for a purpose permitted by Section 5.8(d)(ii) nor be retired and/or
decommissioned, dismantled or sold as scrap, unless the Buyer has obtained
at its own expense an opinion of Bond Counsel addressed to and reasonably
satisfactory to NAEC and PSNH, UI, Canal and NEP that this action will not
impair either (x) the exclusion from gross income of the interest on any
Pollution Control Bonds for federal income tax purposes or (y) the
deductibility of the interest payable with respect to any Pollution Control
Bonds by PSNH, UI, Canal or NEP under Section 150(b) of the Code. The
Buyer shall provide to NAEC and PSNH, UI, Canal and NEP written notice at
least thirty (30)days in advance of any permanent shut-down, retirement,
abandonment or decommissioning of Seabrook Unit 1 or the Pollution Control
Facilities in whole or in part and shall in good faith by written notice to
NAEC and PSNH, UI, Canal and NEP describe the affected property so that
NAEC and PSNH, UI, Canal and NEP can determine which issue or issues of
Pollution Control Bonds financed or refinanced such affected property.
(iv) It is expressly understood and agreed that this
Section 5.8(d) shall not prohibit the use by the Buyer of tax-exempt bonds
to finance or refinance any improvements to the Pollution Control
Facilities made on or after the Initial Closing Date or any assets other
than the Pollution Control Facilities, provided that no breach by the Buyer
of its covenants in this Section 5.8(d) shall result from such
improvements.
(v) The Buyer shall indemnify NAEC and PSNH, UI, Canal and NEP
for any additional costs and expenses incurred by NAEC or PSNH, UI, Canal
or NEP,
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respectively, solely as a result of any breach by the Buyer of its
covenants in this Section 5.8(d).
(vi) (A) NAEC shall, or shall cause PSNH to notify the Buyer in
writing of the maturity or redemption of any issue of the Pollution Control
Bonds, and (B) UI, Canal or NEP shall notify the Buyer in writing of the
maturity or redemption of any issue of the Pollution Control Bonds.
(vii) If NAEC or PSNH, UI, Canal or NEP shall have notified the
Buyer that it has refinanced any of the Pollution Control Bonds with new
bonds, the provisions of this Section 5.8(d), if applicable, shall apply
with respect to such new bonds as though they were the Pollution Control
Bonds; provided that the provisions of this Section 5.8(d)(vii) shall
not operate to require that the use of any Pollution Control Facilities
be subject to any requirements of the Internal Revenue Code of 1954, as
amended, or the Code that are more restrictive than those in effect and
applicable to the related issue of Pollution Control Bonds as of the
issue date of such issue.
(viii) The Buyer and any transferee or subsequent transferee will
not sell or otherwise transfer all or part of the Pollution Control
Facilities unless its transferee covenants in writing for the benefit of
NAEC and PSNH, UI, Canal and NEP to comply with and to satisfy the
covenants of this Section 5.8(d) (including without limitation the
covenants of this clause (viii)) with respect to its ownership and use of
such Pollution Control Facilities.
(ix) The covenants of this Section 5.8(d) shall survive Closing
and shall continue in effect and bind the Buyer and any transferee or
subsequent transferee of all or part of the Pollution Control Facilities so
long as any of the Pollution Control Bonds remain outstanding.
5.9. NEPOOL. At the Initial Closing Date and through the last Subsequent
------
Closing, the Buyer shall be a member in good standing in NEPOOL. Except as
required to preserve system reliability or to comply with the requirements of
ISO-NE or NEPOOL, and except as otherwise provided in any Related Agreement, the
Sellers shall not interfere with the Buyer's efforts to expand or modify
generation capacity at the Site.
5.10. FUNDING OF THE DECOMMISSIONING TRUSTS.
-------------------------------------
(a) DECOMMISSIONING TRUST CLOSING AMOUNT. For the purpose hereof
------------------------------------
"Decommissioning Trust Closing Amount" shall mean the greater of the following:
(i) the aggregate amount of Qualified Decommissioning Funds and Nonqualified
Decommissioning Funds required to be on deposit in the Sellers' Qualified
Decommissioning Funds and Nonqualified Decommissioning Funds at the time of the
Initial Closing and each Subsequent Closing on account of the Ownership Shares
of the Sellers participating in each said Closing based on the calculation
methodology and assumptions contained in the NDFC Final Report and
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Order for Docket 2001-1 (hereinafter referred to as the "Existing NDFC Order");
1 or (ii) the aggregate amount of Qualified Decommissioning Funds and
Nonqualified Decommissioning Funds required to be on deposit in the Sellers'
Qualified Decommissioning Funds and Nonqualified Decommissioning Funds at the
time of the Initial Closing and each Subsequent Closing on account of the
Ownership Shares of the Sellers participating in each said Closing based on any
order(s) of the NDFC subsequent to the Existing NDFC Order other than an order
of the type specified in Section 5.10(e). To the extent computation or reference
is required as to the portion or share of the Decommissioning Trust Closing
Amount due from a particular Seller participating in any Closing, the same shall
be based on that Seller's pro rata share of the total Ownership Shares of the
Sellers participating in that specific Closing. Notwithstanding anything else
contained in this Section 5.10(a), however, if the amount determined pursuant to
Section 5.10(a)(ii) is less than the amount determined pursuant to
Section 5.10(a)(i), the amount determined pursuant to Section 5.10(a)(ii) shall
------------------
be deemed the Decommissioning Trust Closing Amount.
(b) BUYER'S DECOMMISSIONING FUND. The Buyer shall have established as
----------------------------
of the Initial Closing Date a qualified decommissioning fund (the "Buyer's
Qualified Decommissioning Fund") and a nonqualified decommissioning fund (the
"Buyer's Nonqualified Decommissioning Fund," Buyer's Nonqualified
Decommissioning Fund, together with Buyer's Qualified Decommissioning Fund, are
collectively referred to as the "Buyer's Decommissioning Fund") for the Facility
into which, as set forth below, the assets of each Seller's Qualified
Decommissioning Fund and Nonqualified Decommissioning Fund, as applicable, shall
be transferred.
(c) REQUIRED SELLER DEPOSITS. Prior to the Initial Closing Date or
------------------------
each Subsequent Closing Date, as the case may be, each Seller participating in
such Closing that has a Qualified Decommissioning Fund shall make, from time to
time, additional cash contributions to its Qualified Decommissioning Fund equal
to as much of such Seller's share of the Decommissioning Trust Closing Amount
as is eligible or required to be contributed to the Qualified Decommissioning
Fund under Code Section 468A and applicable Treasury Regulations as in effect as
of the relevant Closing Date (the "Qualified Deposits"). On or prior to the
Initial Closing Date or each Subsequent Closing Date, as the case may be, each
Seller participating in such Closing shall make additional cash contributions
from time to time to its Nonqualified Decommissioning Fund such that at the
Initial Closing Date or the Subsequent Closing Date, as the case may be, the
aggregate assets in such Seller's Nonqualified Decommissioning Fund and
Qualified Decommissioning Fund equals such Seller's share of the Decommissioning
Trust Closing Amount. The amount of all additional cash contributions
----------------------------
1 For example, if a single Closing in which all Sellers participated
occurred on December 31, 2002, the calculation methodology and assumptions
contained in the Existing NDFC Order would result in a Decommissioning Trust
Closing Amount of $232.72 million. The foregoing example is provided for
illustrative purposes only, and should one or more Closings occur on dates other
than December 31, 2002, said calculation methodology and assumptions contained
in the Existing NDFC Order would be applied accordingly to compute the
Decommissioning Trust Closing Amount for the participating Seller(s) as of said
date(s).
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required from each Seller pursuant to this Section 5.10(c) shall hereinafter be
referred to as the "Required Seller Deposit."
(d) TRANSFER TO BUYER. After making the Required Seller Deposit in
-----------------
accordance with Section 5.10(c) hereof, on the Initial Closing Date or a
Subsequent Closing Date, as the case may be, each Seller participating in such
Closing shall transfer to the Buyer's Qualified Decommissioning Fund and Buyer's
Nonqualified Decommissioning Fund the assets of such Seller's Qualified
Decommissioning Fund and Nonqualified Decommissioning Fund, as applicable.
(e) REQUIRED BUYER DEPOSIT. If, based on any order(s) of the NDFC
----------------------
subsequent to the Existing NDFC Order that results from actions of the Buyer,
the aggregate amount of Qualified Decommissioning Funds and Nonqualified
Decommissioning Funds required to be on deposit at the time of the Initial
Closing and each Subsequent Closing on account of the Ownership Shares of the
Sellers participating in each said Closing exceeds the Decommissioning Trust
Closing Amount, the Buyer shall be responsible (at or before the time of each
Closing at which any such excess is due) to make an additional cash deposit to
the Buyer's Decommissioning Fund in an amount equivalent to the applicable share
of the excess due at any Closing. The aggregate amount of such additional cash
deposits, if any, required from the Buyer pursuant to this Section 5.10(e) shall
hereinafter be referred to at the "Required Buyer Deposit."
(f) AGREEMENTS AMONG SELLERS. Nothing contained in this Section 5.10
------------------------
shall be deemed to prohibit the Sellers from entering into agreements among
themselves with respect to such Parties' obligations under this Section 5.10, so
long as such agreements do not change any obligations of any of such Sellers to
the Buyer pursuant to this Section 5.10 or otherwise.
(g) AMENDMENT. Between the Effective Date and the last Closing Date,
---------
each Seller agrees not to amend in any material respect its Decommissioning
Trust Agreement without the Buyer's prior written consent, which shall not be
unreasonably withheld. Without limiting the generality of the foregoing, the
Decommissioning Trust Agreements shall not be amended by any Seller to provide
for the consolidation of such Seller's Qualified Decommissioning Funds and
Nonqualified Decommissioning Funds and shall not be amended in any other manner
if and to the extent such amendment would constitute a Disqualification Event.
Except as otherwise required by the IRS, the NRC or any other Governmental
Authority having jurisdiction, following the last Closing Date and prior to
twelve months following the transfer of all amounts held in any Seller's
Decommissioning Funds to the Buyer's respective Decommissioning Funds, the
Decommissioning Trust Agreements shall not be amended by the Buyer to provide
for the consolidation of its Qualified Decommissioning Funds and Nonqualified
Decommissioning Funds; provided, however, that in no event shall any such
amendment be made to the Decommissioning Trust Agreements that would be
inconsistent with the Requested Rulings or that would result in a
Disqualification Event for any Seller; and the Decommissioning Trust Agreements
shall not be amended in any other manner if and to the extent such amendment
would constitute a Disqualification Event, as defined herein. The
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execution and delivery of the Supplemental Indenture by the Buyer and the
Sellers shall not be deemed an amendment prohibited by this Section 5.10(g).
(h) CUSTOMER CONTRIBUTION. When the Buyer or its successors have
---------------------
completed Decommissioning of the Facility as required by Section 5.23 and by
applicable Law, (i) any remaining Decommissioning Funds determined by the NDFC
to be New Hampshire customer contributions pursuant to RSA 162-F:21-b II(c), and
(ii) any remaining Decommissioning Funds determined by the Governmental
Authority having jurisdiction in Connecticut, Massachusetts and Rhode Island, as
the case may be, to be customer contributions from the customers of such state
under the applicable Law of such state, to the extent required by the applicable
Law of such state, shall be paid by the Buyer in coordination with applicable
Governmental Authority having jurisdiction in such state for the benefit of the
customers of the relevant Seller or Sellers in such state.
(i) OWNERSHIP SHARES OF GBP AND LBP. For all purposes of this Section
-------------------------------
5.10, consistent with the Existing NDFC Order, the Ownership Share of GBP and
the Ownership Share of LBP shall be deemed to be the Ownership Share of a single
Seller. The transfer of the Qualified Decommissioning Fund and the Nonqualified
Decommissioning Fund of each of GBP and LBP shall occur simultaneously on the
same closing date.
5.11. RISK OF LOSS. Except as otherwise provided in this Section 5.11,
------------
during the Interim Period all risk of loss or damage to the property included in
the Acquired Assets shall be borne by the Sellers. If during the Interim Period
the Acquired Assets are damaged by fire or other casualty (each such event, an
"Event of Loss"), or are taken by a Governmental Authority by exercise of the
power of eminent domain (each, a "Taking"), the following provisions shall
apply:
(a) the occurrence of (i) any one or more Events of Loss, as a result
of which the aggregate costs to restore, repair or replace, less any insurance
proceeds received or payable to the Sellers in connection with such Event or
Events of Loss (provided that any insurance proceeds received or payable in
connection with the Event or Events of Loss are either used to restore, repair
or replace such Event or Events of Loss or are made available to the Buyer) are
reasonably estimated to be equal to or less than $10,000,000, and/or (ii) any
one or more Takings, as a result of which the aggregate condemnation proceeds
equal an amount reasonably estimated to be equal to or less than $10,000,000,
shall have no effect on the transactions contemplated hereby; provided, that any
condemnation proceeds received or payable in connection with the Taking or
Takings are made available to the Buyer;
(b) upon the occurrence of (i) any one or more Events of Loss, as a
result of which the aggregate costs to restore, repair or replace, less any
insurance proceeds received or payable to the Sellers in connection with such
Event or Events of Loss (provided that any insurance proceeds received or
payable in connection with the Event or Events of Loss are either used to
restore, repair or replace such Event or Events of Loss or are made available to
the
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Buyer) are reasonably estimated to be greater than $10,000,000, and/or (ii) any
one or more Takings, as a result of which the aggregate condemnation proceeds
are reasonably estimated to be greater than $10,000,000 (a "Major Loss"), the
Seller Representatives, for themselves and on behalf of the other Sellers,
consistent with the Joint Ownership Agreement and the Managing Agent Operating
Agreement, shall have, in the case of a Major Loss relating to one or more
Events of Loss, the option, exercised by notice to the Buyer, to restore, repair
or replace the affected Acquired Assets. If the Seller Representatives elect to
restore, repair or replace the Acquired Assets relating to a Major Loss, which
election shall be made by notice to the Buyer prior to the Initial Closing Date
and as soon as practicable following the occurrence of the Major Loss, the Buyer
will have the option of (x) making the completion of the repair, replacement or
restoration of the affected Acquired Assets a condition to the Closing and the
Initial Closing Date shall be postponed at its election for the amount of time
reasonably necessary to complete the restoration, repair or replacement of such
affected Acquired Assets, such time period to be agreed upon by the Buyer and
the Seller Representatives or (y) allowing the Initial Closing to occur prior to
the completion of the repair, replacement or restoration of such affected
Acquired Assets; provided that the Seller Representatives shall have agreed to
complete such repair, replacement or restoration which covenant shall survive
the Closings. If the Seller Representatives elect not to restore, repair or
replace the Acquired Assets affected by a Major Loss, or such Major Loss is the
result of one or more Takings, the provisions of Section 5.11(c) will apply;
(c) in the event that the Seller Representatives elect not to
restore, repair or replace a Major Loss, or in the event that the Seller
Representatives, having elected to repair, replace or restore the Major Loss,
fail to complete such repair, replacement or restoration within the period of
time as agreed upon by the Parties pursuant to the penultimate sentence of
Section 5.11(b), or in the event that a Major Loss is the result of one or more
Takings, then the Parties shall, within thirty (30) days following the Seller
Representatives' election not to restore, repair or replace, failure to
complete, or the occurrence of such Takings, as the case may be, negotiate in
good faith an equitable adjustment in the Facility Purchase Price, pursuant to
Section 2.6(a)(iv) to reflect the impact of the Major Loss and taking into
account the Ownership Shares to be transferred to the Buyer pursuant to this
Agreement, as mitigated by any repair, replacement or restoration work actually
completed by the Seller Representatives, on the Acquired Assets being sold to
Buyer, and proceed to the Initial Closing Date. To assist the Buyer in its
evaluation of any and all Events of Loss, the Seller Representatives shall
provide the Buyer such access to the Acquired Assets and such information as the
Buyer may reasonably request in connection therewith; and
(d) in the event that the Parties fail to reach agreement on an
equitable adjustment of the Facility Purchase Price, within the thirty (30) days
provided in Section 5.11(c), then the Buyer shall have the right to elect,
exercisable by notice to the Seller Representatives within fifteen (15) days
immediately following the expiration of the thirty (30) day period, to (i)
proceed with the consummation of the transaction at the Initial Closing, with a
reduction in the Facility Purchase Price, consistent with the Seller
Representatives' last offer of equitable adjustment thereto as contemplated by
the penultimate sentence of Section 5.11(c) communicated to the Buyer, in which
event the Sellers shall assign over or deliver to the Buyer
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at the Initial Closing all condemnation proceeds or insurance proceeds that the
Sellers receive, or to which the Sellers become entitled by virtue of the Events
of Loss or Taking with respect to the Acquired Assets, less any costs and
expenses reasonably incurred by the Sellers in connection with such Events of
Loss or Taking or in obtaining such condemnation proceeds or insurance proceeds,
and less the reduction in the Facility Purchase Price made pursuant to this
clause (i), or (ii) submit the matter to dispute resolution pursuant to
Section 12 to determine the adjustment, if any, in the Facility Purchase Price,
which determination shall be binding on all Parties. If the Buyer fails to make
the election within the fifteen (15) day period described in the preceding
sentence, the Buyer will, subject to Section 5.11(d), be deemed to have made the
election to proceed with the Initial Closing.
5.12. DISCHARGE OF ENVIRONMENTAL LIABILITIES. After the Initial Closing
--------------------------------------
Date, with respect to Environmental Liabilities which constitute Excluded
Liabilities (the "Seller Environmental Liabilities"), the Buyer will use
Commercially Reasonable Efforts not to prejudice or impair the rights of any
Seller under Environmental Laws or interfere with the ability of any Seller to
contest in appropriate administrative, judicial or other proceedings its
liability, if any, for Environmental Claims or Remediation. To the extent
relevant to the Seller Environmental Liabilities, (i) the Buyer further agrees
to provide to the Sellers draft copies of all plans and studies prepared in
connection with any Site investigation or Remediation prior to their submission
to the Governmental Authority with jurisdiction under Environmental Laws, (ii)
the Seller Representatives shall have the right, without the obligation, to
attend all meetings between the Buyer, its agents or representatives, and such
Governmental Authorities and (iii) the Buyer shall promptly provide to the
Seller Representatives copies of all written information, plans, documents and
material correspondence submitted to or received from such Governmental
Authorities relating to the Buyer's discharge of any Environmental Liabilities
assumed pursuant to this Agreement.
5.13. NUCLEAR INSURANCE. (i) The Buyer shall obtain and maintain policies
-----------------
of liability and property insurance with respect to the ownership, operation,
and maintenance of the Facility which shall afford protection against the
insurable hazards and risks with respect to which units of similar size and type
customarily maintain insurance, and which meets the requirements of 10 C.F.R.
50.54(w) and 10 C.F.R. Part 140. Such coverage shall include nuclear liability
insurance, in such form and in such amount as will meet the financial protection
requirements of the Atomic Energy Act, and an agreement of indemnification as
contemplated by Section 170 of the Atomic Energy Act. In the event that the
nuclear liability protection system contemplated by Section 170 of the Atomic
Energy Act is repealed or changed, the Buyer shall obtain and maintain, to the
extent commercially available on reasonable terms, alternate protection against
Nuclear Liability. In addition, the Buyer shall be able to provide the financial
assurance consistent with the requirements of 10 CFR Section 140.21 that it will
be able to pay the retrospective premiums for the Facility as prescribed by
Section 170 of the Atomic Energy Act.
(ii) Promptly after the receipt thereof, the Buyer shall disburse to
each Seller in accordance with its respective Proportionate Ownership any
refunds or other distributions received by the Buyer with respect to XXXX or ANI
premiums actually paid by the Sellers.
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5.14. NONWAIVER OF THIRD PARTY ENVIRONMENTAL LIABILITIES. In the event
--------------------------------------------------
that the Buyer, either before or after the Initial Closing Date, shall
reasonably determine that the cause that gives rise to the Environmental
Liabilities assumed pursuant to Section 2.3(a) occurred, in whole or in part,
prior to the Initial Closing Date, the Sellers shall cooperate and provide the
Buyer with any information in their possession that will assist the Buyer in
locating any Third Party who may be a "potentially responsible party" as defined
by any Environmental Laws with respect thereto, and, prior to the second
anniversary of the Initial Closing, the Sellers shall not waive or excuse the
liability of any Third Party who may share responsibility for any of such
Environmental Liabilities that would be likely to have a Plant Material Adverse
Effect.
5.15. CONTROL OF LITIGATION. The Parties agree and acknowledge that the
---------------------
Seller Representatives shall, subject to the Joint Ownership Agreement and the
Managing Agent Operating Agreement, be entitled exclusively to control, defend
and settle any litigation, administrative or regulatory proceeding, and any
investigative or Remediation activities (including without limitation any
environmental mitigation) arising out of or related to any Excluded Assets or
Excluded Liabilities, so long as such defense, settlement or other activities
do not unreasonably interfere with the Buyer's operation of the Facility or
materially impair the value of the Facility, and the Buyer agrees to use
Commercially Reasonably Efforts to cooperate with the Seller Representatives in
connection therewith. The Parties agree and acknowledge that the Buyer shall be
entitled exclusively to control, defend and settle any litigation,
administrative or regulatory proceeding, and any investigative or remediation
activities arising out of or related to any Acquired Assets or Assumed
Liabilities, so long as such defense, settlement or other activities do not
unreasonably interfere with the Sellers' respective businesses, and the Seller
Representatives agree to use Commercially Reasonably Efforts to cooperate with
the Buyer in connection therewith.
5.16. AVAILABILITY OF FUNDS. On or before the Effective Date, the Buyer
---------------------
shall have delivered to the Sellers (a) evidence of sufficient funds available
to it as of the Initial Closing Date through the last Subsequent Closing Date or
binding written commitments from responsible financial institutions to provide
sufficient immediately available funds as of the Initial Closing Date through
the last Subsequent Closing Date to pay the Facility Purchase Price, the Fuel
Purchase Price, the Xxxx 0 Xxxxxxxx Xxxxx, the NAEC Real Property Purchase Price
and any Estimated Adjustment and (b) evidence of the availability of the
Acceptable Guaranty in accordance with Section 2.5.
5.17. DEPARTMENT OF ENERGY DECONTAMINATION AND DECOMMISSIONING FEES. Each
-------------------------------------------------------------
Seller shall continue to pay its Ownership Share of all uranium-enrichment
decontamination and decommissioning fund fees levied by the DOE pursuant to 42
U.S.C. Section 2297g-1 that are payable prior to the Initial Closing Date or any
Subsequent Closing Date, as the case may be. On and after the Initial Closing
and each Subsequent Closing Date, the Buyer shall pay such decontamination and
decommissioning fund fees for the appropriate Ownership Shares acquired by the
Buyer at each Closing, including but not limited to all annual special
assessment invoices issued on and after the Initial Closing Date by the DOE, as
contemplated by its regulations at 10 C.F.R. Part 766 implementing Sections
1801, 1802, and 1803 of the Atomic Energy Act.
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5.18. COOPERATION RELATING TO INSURANCE AND XXXXX-XXXXXXXX ACT. Until the
--------------------------------------------------------
Initial Closing, the Sellers shall maintain in effect not less than the amounts
of property damage and liability insurance for the Facility as set forth in
Schedule 5.18. The Seller Representatives shall cooperate with the Buyer's
efforts to obtain insurance, including insurance required under the Price
Xxxxxxxx Act or other Nuclear Laws with respect to the Acquired Assets. Subject
to Section 9.4, the Sellers agree to use reasonable efforts to assist the Buyer
in making any claims against pre-Closing insurance policies of the Sellers that
may provide coverage related to Assumed Liabilities. The Buyer agrees to
indemnify the Sellers for their reasonable out of pocket expenses incurred in
providing such assistance and cooperation and not to take any action which shall
adversely affect any residual rights of the Sellers in such insurance policies.
After the Initial Closing and through the last Subsequent Closing, the Buyer
shall maintain, with financially responsible insurance companies, insurance in
such amounts and against such risks and losses as is customary in the commercial
nuclear power industry. After the Initial Closing through the relevant
Subsequent Closing, the Buyer shall include each Remaining Seller as a named
insured and loss payee, as its interests may appear, on the property damage and
liability insurance policies maintained for the Facility.
5.19. ACCEPTABLE GUARANTY. If the Buyer elects to deliver an Acceptable
-------------------
Guaranty pursuant to Section 2.5, then (i) on the Effective Date the Buyer shall
deliver to the Sellers an Acceptable Guaranty and (ii) at all times thereafter
until payment in full of all amounts due hereunder the Buyer shall maintain such
Acceptable Guaranty in full force and effect. If at any time the guarantor under
such Acceptable Guaranty shall cease to be an Acceptable Guarantor, then the
Buyer shall, within ten (10) days after the earlier of the date on which (i) the
Buyer shall have been given notice of such cessation by the Seller
Representatives and (ii) the Buyer shall have Knowledge of such cessation,
deliver to the Seller Representatives a replacement Acceptable Guaranty to be
issued by an Acceptable Guarantor.
5.20. PRIVATE LETTER RULING REQUESTS. The Parties agree to cooperate in
------------------------------
good faith in the preparation and filing of any private letter ruling requests
to be made by the Buyer and the Sellers (which shall be made as a single, joint
filing by all Parties) in order to obtain the tax treatment desired by the
Parties with respect to the transfer of the Decommissioning Funds pursuant to
the terms of this Agreement (the "Private Letter Ruling Requests"). Without
limiting the generality of the foregoing, the Buyer and the Sellers shall use
Commercially Reasonable Efforts to obtain one or more private letter ruling(s)
from the IRS determining that (i) the transfer of assets from the Sellers'
Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund is
a disposition that, pursuant to the IRS' authority under Treas. Reg.
1.468A-6(g)(1), satisfies the requirements of Treas. Reg. 1.468A-6(b), (ii) the
Buyer will not recognize gain or otherwise take into account any income for U.S.
federal income tax purposes by reason of the receipt of the assets of the
Sellers' Nonqualified Decommissioning Funds, including any top-off amounts
contributed thereto pursuant to Section 5.10(c), and (iii) each Seller shall be
entitled to a current deduction equal to the total of any amounts realized by
such Seller as a result of the Buyer's assumption of the decommissioning
obligations with regard to the Acquired Assets (the "Requested Rulings"), and
further the Buyer and the Sellers shall use Commercially Reasonable Efforts to
obtain private letter ruling(s) from the IRS determining that each Seller's net
operating loss attributable to the decommissioning obligations assumed by the
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Buyer will qualify for specified liability loss treatment under section 172 of
the Code. Neither the Buyer nor the Sellers shall take any action that would
cause the transfer of assets from the Sellers' Qualified Decommissioning Funds
to the Buyer's Qualified Decommissioning Fund to fail to satisfy the
requirements of Treas. Reg. 1.468A-6(b) (assuming solely for purposes of this
sentence that the interest acquired by the Buyer constitutes a "qualified
interest" in a "nuclear power plant" as defined in Treas. Reg. 1.468A-5(b)), or
cause the Buyer and the Sellers to fail to obtain such a private letter ruling.
5.21. CREDIT RATING OF ACCEPTABLE GUARANTOR. The Buyer shall, until the
-------------------------------------
expiration of the term of the Acceptable Guaranty, promptly notify the Seller
Representatives of any downgrade in the credit rating of such Acceptable
Guarantor.
5.22. NRC COMMITMENTS. The Buyer shall maintain, and operate the Facility
---------------
in accordance with the NRC Commitments to the extent required by the NRC
Licenses and with applicable Law.
5.23. DECOMMISSIONING AND FUNDING ASSURANCE. Buyer hereby agrees that it
-------------------------------------
will complete, at its expense, the Decommissioning of the Facility once the Site
is no longer utilized for power generation, and that it will complete all
Decommissioning activities in accordance with all applicable Laws and
requirements, including those of the NRC, the Environmental Protection Agency
and the State of New Hampshire as may be in effect as of the date that the Site
is proposed to be declared to be fully decommissioned. The Buyer acknowledges
that, as of the Effective Date, entombment is not considered to be an acceptable
form of Decommissioning in New Hampshire. Buyer hereby further agrees that prior
to the Initial Closing Date, it will provide Funding Assurance sufficient to
demonstrate to the satisfaction of the NDFC Buyer's ability to fully fund the
projected cost of Decommissioning in a manner consistent with the requirements
of RSA 162-F:21-c as set forth in the Existing NDFC Order.
5.24. JOINT OWNERSHIP AGREEMENT. Except as otherwise provided expressly
-------------------------
herein, after the Initial Closing and prior to the last Subsequent Closing
neither the Buyer nor any Remaining Seller shall enter into any amendment to or
termination of the Joint Ownership Agreement (including billing practices
thereunder) without the prior written consent of each of the Remaining Sellers
and the Buyer.
5.25. MEMORANDUM OF UNDERSTANDING WITH THE TOWN OF SEABROOK. On the
-----------------------------------------------------
Initial Closing Date and each Subsequent Closing Date, as the case may be, each
Seller participating in such Closing shall contribute an amount equal to its
Ownership Share of $2,000,000 to the escrow account created in accordance with
the Memorandum of Understanding with the Town of Seabrook.
5.26. CERTAIN AGREEMENTS. The Seller Representatives shall, on the
------------------
Initial Closing Date, cause PSNH to enter into the Interconnection Agreement
described in Section 6.1(k), pursuant to
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which PSNH shall control the transmission of electric power through the 345 kV
Substation, and an Agreement to Amend Transmission Support Agreement described
in Section 6.1(l) with the Buyer.
6. CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE.
-------------------------------------------
6.1. CONDITIONS PRECEDENT TO OBLIGATION OF THE BUYER TO CLOSE. The
--------------------------------------------------------
obligation of the Buyer to consummate the transactions to be performed by it in
connection with the Initial Closing and each Subsequent Closing is subject to
satisfaction of the following conditions with respect to such Initial Closing or
Subsequent Closing, as the case may be:
(a) REPRESENTATIONS AND WARRANTIES. At the Initial Closing, the
------------------------------
representations and warranties set forth in Section 3 (other than the
representation set forth in Section 3.10 hereof) of NAESCO and of each Seller
participating in the Initial Closing shall be true and correct in all material
respects as though made at and as of the Initial Closing Date (except with
respect to any representation or warranty expressly made as of the Effective
Date, which shall be deemed made as of the Effective Date). At each Subsequent
Closing, the representations and warranties set forth in Section 3 of each
Remaining Seller participating in such Subsequent Closing, except for the
representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.5,
3.6, 3.7(b), 3.7(c), 3.8, 3.9, 3.10, 3.12 and 3.13(e) shall be true and correct
in all material respects as though made at and as of the Initial Closing Date,
and the representations and warranties of each such Remaining Seller set forth
in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7(b), 3.7(c), 3.8, 3.9, 3.12 and
3.13(e) shall be true and correct in all material respects as though made at and
as of such Subsequent Closing date on which such Remaining Seller transfers its
Ownership Share (except with respect to any representation or warranty expressly
made as of the Effective Date, which shall be deemed made as of the Effective
Date and except with respect to any breach of any such representation or
warranty to the extent that such breach arises from the acts or omissions of the
Buyer or its Affiliates after the Initial Closing Date);
(b) PERFORMANCE BY THE SELLERS. The Required Sellers or the
--------------------------
Remaining Sellers, as the case may be, shall have performed and complied in all
material respects with all of their covenants, agreements and obligations
hereunder through the relevant Closing Date;
(c) BUYER REGULATORY APPROVAL. Buyer shall have received the
-------------------------
consents, approvals and authorizations referenced in Section 5.2(b) and the
Buyer Regulatory Approvals specified in Schedule 6.1(c) in each case without
terms and conditions that, either singly or in the aggregate, would be likely to
have a Plant Material Adverse Effect (including any conditions applicable to
Buyer on marketing or brokering in connection with the Transfer of Licenses) or
a Material Adverse Effect on the Buyer and such approvals shall be Final;
(d) SELLER REGULATORY APPROVALS. The Required Sellers or the
---------------------------
Remaining Sellers shall have received the applicable Seller Regulatory Approvals
specified in Schedule
--------
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6.2(c), in each case without terms and conditions that, either singly or in the
------
aggregate, would be likely to have a Plant Material Adverse Effect (including
any conditions on marketing or brokering in connection with the Transfer of
Licenses) on the Buyer and such approvals shall be Final;
(e) ABSENCE OF LITIGATION. (i) Except for any NRC proceeding which
---------------------
may be pending after the NRC has approved the Application, no suit, action or
other proceeding against the Buyer, any Seller participating in such Closing,
or any of their respective Affiliates or the Ownership Shares being transferred
at such Closing shall be pending before any Governmental Authority which seeks
to restrain or prohibit any of the transactions contemplated by this Agreement
or to obtain damages or other relief in connection with this Agreement or the
actions contemplated hereby, except for matters that, in the aggregate, would
not be likely to have a Material Adverse Effect on the Buyer or the Facility.
There shall not be any injunction, judgment, order, decree, ruling, charge or
Laws in effect as of the relevant Closing Date with respect to the Buyer, any
Seller participating in such Closing, or any of their respective Affiliates
preventing consummation of any of the transactions contemplated by this
Agreement or the Related Agreements, except as would not be likely to have a
Plant Material Adverse Effect; and (ii) in addition to the matters specified in
Section 6.1(e)(i), no suit, action or other proceeding against the Buyer, any
----------------
Seller participating in such Closing, or any of their respective Affiliates or
the Ownership Shares being transferred at such Closing shall be pending before
any court, tribunal, panel, or Governmental Authority which seeks to restrain or
prohibit any of the transactions contemplated by this Agreement based on a bona
fide claim which, if resolved in favor of the Person initiating such suit,
action or proceeding, would constitute a breach by such Seller of the
representation of such Seller set forth in Section 3.13(e), except for claims
---------------
that, in the aggregate, would not be likely to have a Material Adverse Effect on
the Buyer or the Facility;
(f) ANTI-TRUST MATTERS. All applicable waiting periods (and any
------------------
extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or
otherwise been terminated or it shall have been determined to the Parties'
mutual satisfaction that all transactions between the Parties are exempt from
the Xxxx-Xxxxx-Xxxxxx Act;
(g) DELIVERIES. The Required Sellers or the Remaining Sellers, as
----------
the case may be, shall have complied in all material respects with the delivery
requirements of Section 2.11;
(h) TITLE COMMITMENTS. The issuer of the Title Commitments shall
-----------------
have made available to the Buyer title insurance policies in an amount
satisfactory to the Buyer insuring title to the Ownership Shares being
transferred at each Closing consisting of real estate and Improvements as of the
relevant Closing Date substantially in the form of the Title Commitments (but in
the case of any Subsequent Closing without regard to any changes therefrom which
result from any act or omission of the Buyer and/or any owner of the Facility
other than the Seller(s) participating in said Subsequent Closing), with such
changes therefrom as would not in the aggregate be likely to have a Plant
Material Adverse Effect and with the exceptions for parties in possession (othe
than those disclosed in Schedule 2.1(a)(iii)(A) and Schedule 2.1(a)(iii)(B), if
---------------------- -----------------------
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any) and unfiled mechanics' and materialmen's liens (other than those that aris
from any act or omission of the Buyer or arise under Good Utility Practices and
are not material to the operation or use of the Acquired Assets in the business
of the Sellers as conducted through the relevant Closing Date) removed;
provided, that the Buyer shall be under no obligation to pay any amounts to the
--------
issuer of such title insurance policies in order to cause an exception not
contained in the Title Commitments to be removed from such title insurance
policies if the amount of such payment would constitute a Plant Material Adverse
Effect;
(i) PLANT MATERIAL ADVERSE EFFECT. Since the Effective Date and
-----------------------------
prior to the Initial Closing Date, there shall not have occurred and be
continuing a Plant Material Adverse Effect, which could reasonably be expected
to cause a loss and/or the expenditure by the Buyer within one year following
the Initial Closing Date in excess of $50,000,000 individually or in the
aggregate, other than arising from facts or circumstances (i) that were within
the Buyer's Knowledge on the Effective Date and were not required to be
corrected or remediated before the Initial Closing Date by this Agreement, (ii)
that were disclosed on any of the Schedules and were not required to be
corrected or remediated before the Initial Closing Date by this Agreement, or
(iii) such Plant Material Adverse Effect which is the direct and sole result of
acts or omissions on the part of the Buyer;
(j) RELATED AGREEMENTS. The Related Agreements, to the extent
------------------
applicable to each Seller participating in such Closing, shall be in full force
and effect on each Closing Date other than failures to be in full force and
effect resulting from Buyer's acts or omissions;
(k) INTERCONNECTION AGREEMENT. The Interconnection Agreement shall
-------------------------
have become effective;
(l) AGREEMENT TO AMEND TRANSMISSION SUPPORT AGREEMENT. The Agreement
-------------------------------------------------
to Amend Transmission Support Agreement shall have become effective;
(m) OTHER MATTERS AFFECTING ACQUIRED ASSETS. The Buyer shall have
---------------------------------------
received such other documents, agreements or instruments, and the Required
Sellers or the Remaining Sellers, as the case may be, shall have performed such
acts, as the Buyer or its counsel may reasonably request in order to accomplish
the acquisition of the Ownership Shares of the Required Sellers or the Remaining
Sellers, as the case may be, and the operation of the Facility in a safe and
reliable fashion;
(n) REQUESTED RULINGS. The Buyer shall have received the Requested
-----------------
Rulings; and
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(o) NO SHUTDOWN. The Facility shall not have been shut down and its
-----------
licensed thermal output shall not have been significantly reduced as a result of
actions taken by the NRC or other Governmental Authority.
The Buyer may waive any condition specified in this Section 6.1 if it
executes a writing so stating on or prior to the relevant Closing Date and,
except as provided in the following sentence, such waiver shall not be
considered a waiver of any other provision in this Agreement unless the writing
so states. If the Buyer waives any such condition with respect to the Initial
Closing Date, then such waiver shall be effective with respect to each
Subsequent Closing Date.
6.2. CONDITIONS PRECEDENT TO OBLIGATION OF THE SELLERS TO CLOSE. The
----------------------------------------------------------
obligation of each Required Seller or Remaining Seller, as the case may be, to
consummate the transactions to be performed by it in connection with the Initial
Closing or Subsequent Closing, as the case may be, is subject to satisfaction of
the following conditions:
(a) REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of the Buyer set forth in Section 4 shall be true and correct in all
material respects (except if such representation or warranty is subject to a
Material Adverse Effect, Plant Material Adverse Effect or other materiality
threshold, in which case such representation or warranty shall be true and
correct in all respects) at and as of the Initial Closing Date or Subsequent
Closing Date, as the case may be (except with respect to any representation or
warranty expressly made as of the Effective Date, which shall be deemed made as
of the Effective Date);
(b) PERFORMANCE BY THE BUYER. The Buyer shall have performed and
------------------------
complied in all material respects with all of its covenants, agreements and
obligations hereunder through the relevant Closing Date;
(c) SELLER REGULATORY APPROVALS. Each Required Seller or Remaining
---------------------------
Seller, as the case may be, shall have received the Seller Regulatory Approvals
specified in Schedule 6.2(c), in each case without terms and conditions that
---------------
either singly or in the aggregate would be likely to have a Material Adverse
Effect on such Seller and such approvals shall be Final;
(d) BUYER REGULATORY APPROVAL. The Buyer shall have received the
-------------------------
consents, approvals and authorizations referenced in Section 5.2(b) and the
Buyer Regulatory Approvals specified in Schedule 6.1(c) in each case without
---------------
terms and conditions that, either singly or in the aggregate, would be likely to
have a Material Adverse Effect on any Seller and such approvals shall be Final;
(e) ABSENCE OF LITIGATION. Except for any NRC proceeding which may
---------------------
be pending after the NRC has approved the Application, no suit, action or other
proceeding against any Party or its Affiliates or any of the Acquired Assets
shall be pending before any Governmental Authority which seeks to restrain or
prohibit any of the transactions contemplated
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by this Agreement or to obtain damages or other relief in connection with this
Agreement or the actions contemplated hereby, except for matters that, in the
aggregate, would not be likely to have a Plant Material Adverse Effect. There
shall not be any injunction, judgment, order, decree, ruling, charge or Laws in
effect on the relevant Closing Date preventing consummation of any of the
transactions contemplated by this Agreement or the Related Agreements, except as
would not be likely to have a Plant Material Adverse Effect;
(f) DELIVERIES. The Buyer shall have complied in all material
----------
respects with the delivery requirements of Section 2.12;
(g) ANTI-TRUST MATTERS. All applicable waiting periods (and any
------------------
extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or
otherwise been terminated or it shall have been determined to the Parties'
mutual satisfaction that all transactions between the Parties are exempt from
the Xxxx-Xxxxx-Xxxxxx Act;
(h) NEPOOL. The Buyer shall be a member in good standing of NEPOOL;
------
(i) RELATED AGREEMENTS. The Related Agreements shall be in full
-------------------
and effect resulting from any of Sellers' or NAESCO's acts or omissions;
(j) REQUESTED RULINGS. The Sellers shall have received the Requested
-----------------
Rulings;
(k) AGREEMENT TO AMEND TRANSMISSION SUPPORT AGREEMENT. An Agreement
-------------------------------------------------
to Amend Transmission Support Agreement substantially in the form of Exhibit N
---------
shall have become effective;
(l) REDEMPTION OF THE UI BONDS. In the case of UI, the termination
--------------------------
of the Facility Lease pursuant to the Termination Agreement shall have become
effective and all notice requirements which would permit the redemption of the
Seabrook Unit 1 Secured Lease Obligation Bonds (the "UI Bonds") in accordance
with the Indenture shall have been satisfied; and
(m) SELLER SHAREHOLDER APPROVAL. With respect to any Seller
---------------------------
identified on Schedule 6.2(n) that must obtain shareholder approval, such
shareholder approval shall have been received.
Each of the Sellers may waive any condition specified in this Section 6.2 if
it executes a writing so stating on or prior to the relevant Closing Date and
such waiver shall not be
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considered a waiver of any other provision in this Agreement unless the writing
specifically so states, nor shall any such waiver be effective as against any
other Seller.
6.3. INITIAL AND SUBSEQUENT CLOSINGS.
-------------------------------
(a) COORDINATION AND INITIAL CLOSING. The Buyer and the Sellers
--------------------------------
desire to effect a coordinated closing with respect to all of the Sellers'
interests in the Acquired Assets. To that end, in order to provide sufficient
time for the Sellers to obtain necessary Seller Regulatory Approvals, no Closin
including, without limitation, the Initial Closing, shall occur until the date
(the "Coordination Date") which is the earlier of (1) the date which is six (6)
months after the Effective Date or (2) the date on which all Seller Regulatory
Approvals have been obtained. Anything provided in this Agreement to the
contrary notwithstanding, if the Coordination Date has occurred and the
conditions precedent set forth in Section 6 are satisfied with respect to NAEC
and any other Seller or Sellers (each a "Required Seller") holding individually,
or in the aggregate with other Required Sellers, Ownership Shares (which shall
include NAEC's Ownership Share), representing not less than fifty-one percent
(51%) of the aggregate ownership interests of all of the Participants in the
Facility (the "Required Assets"), then the Buyer and the Required Sellers shall
proceed to Closing in accordance with Section 2.10 (the "Initial Closing") as
follows:
(i) In no event shall Ownership Shares (which shall include
NAEC's Ownership Share) representing less than fifty-one percent (51%) of
the aggregate ownership interests of all of the Participants in the
Facility, be transferred at the Initial Closing. If UI has satisfied (and
continues to satisfy) all conditions precedent set forth in Section 6 other
than the condition precedent set forth in Section 6.2(m) (the "UI Bond
Redemption Condition Precedent") at a time when the Initial Closing may
otherwise occur, the Required Sellers may elect (such election to be made
by consent of the Required Sellers holding fifty-one percent (51%) or more
of the Ownership Shares to defer Closing until the "Deferral Date" which
shall mean the earlier of: (1) the date of the satisfaction of the UI Bond
Redemption Condition Precedent and (2) an outside date certain specified
by such Required Sellers at the time said election is made (which shall not
be later than sixty (60) days after the date of such election) (in which
case the Required Sellers shall be referred to as the "Electing Required
Sellers") (UI and the Electing Required Sellers collectively with any
Seller for which all conditions precedent set forth in Section 6 have not
then been satisfied shall be referred to as the "Remaining Sellers").
(ii) At any time when UI has satisfied (and continues to
satisfy) all conditions precedent set forth in Section 6 other than the
UI Bond Redemption Condition Precedent, the Buyer and the applicable
Remaining Sellers shall proceed to Closing in accordance with Section
2.10: (1) on the Deferral Date, if applicable, in the case of each
Remaining Seller with respect to whom all conditions precedent set forth in
Section 6 are then satisfied, (2) on the date of satisfaction of the UI
Bond Redemption Condition Precedent in the case of each Remaining Seller
with respect to whom all conditions precedent set forth in Section 6 are
then satisfied and (3) in the case of each other
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Remaining Seller, on a date no later than ten (10) days (or, if the tenth
day is not a Business Day, then the next Business Day following such tenth
day) after the satisfaction of the last condition precedent applicable to
such Seller (each a "Subsequent Closing").
(iii) In the event that the Required Sellers and/or any
Remaining Seller satisfy all applicable conditions precedent set forth in
Section 6 at a time when UI has failed to satisfy one or more conditions
precedent set forth in Section 6 in addition to the UI Bond Redemption
Condition Precedent, said Required Sellers and/or Remaining Seller(s) shall
proceed to Closing on a date no later than ten (10) days (or, if the
tenth day is not a Business Day, then the next Business Day following
such tenth day) after the satisfaction of the last condition precedent
applicable to such Seller(s) for the Initial Closing or a Subsequent
Closing, as applicable, provided, however, the Initial Closing shall
not occur prior to the Coordination Date.
(iv) In the event that all of the Sellers shall participate in a
single Closing, such Closing shall be deemed to be the Initial Closing and
all Sellers shall be deemed to be the Required Sellers (and there shall be
deemed to be no Remaining Sellers).
(b) INITIAL CLOSING. At the Initial Closing (i) the Required Sellers
---------------
shall sell and transfer to the Buyer and the Buyer shall purchase and acquire
from the Required Sellers such Sellers' Proportionate Ownership of the Acquired
Assets, (ii) the Buyer shall assume such Sellers' Proportionate Ownership of the
Assumed Liabilities, (iii) the Required Sellers shall make the transfer to the
Buyer's Decommissioning Fund pursuant to Section 5.10, and (iv) the Buyer shall
become a party to, and shall succeed to the rights and obligations of the
Required Sellers under the Joint Ownership Agreement and the rights and
obligations of NAESCO as currently provided in the Managing Agent Operating
Agreement and the Disbursing Agent Agreement as currently in effect.
(c) SUBSEQUENT CLOSINGS. At each Subsequent Closing (i) the relevant
-------------------
Remaining Sellers shall sell and transfer to the Buyer and the Buyer shall
purchase and acquire from such Remaining Sellers such Sellers' Proportionate
Ownership of the Acquired Assets, (ii) the Buyer shall assume such Sellers'
Proportionate Ownership of the Assumed Liabilities, (iii) such Remaining Sellers
shall make the transfer to the Buyer's Decommissioning Trust Fund pursuant to
Section 5.10, and (iv) the Buyer shall succeed to the rights and obligations of
such Remaining Sellers under the Joint Ownership Agreement.
7. CONFIDENTIALITY.
---------------
(a) Each Receiving Party and each Representative thereof will treat
and hold as confidential all Proprietary Information, refrain from using any
such Proprietary Information except in connection with this Agreement, the
Related Agreements and transactions contemplated hereby and thereby, and, if
this Agreement is terminated prior to Closing, deliver promptly to the
Disclosing Party or destroy, at the request and option of the Disclosing Party,
all
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tangible embodiments and all copies, summaries or abstracts of any Proprietary
Information received from such Disclosing Party which are in his or its
possession. All Proprietary Information relating to the Acquired Assets as may
be delivered to the Buyer prior to the Initial Closing shall become Buyer's
Proprietary Information and the Buyer shall be deemed to be the Disclosing Party
with respect thereto upon consummation of the Initial Closing, and the Sellers
shall not thereafter disclose any such Proprietary Information except to the
extent allowed herein; provided, however, that, subject to Section 7(b), any
-------- -------
such information which was not treated as confidential or proprietary by any of
the Sellers prior to Closing shall not become confidential or Proprietary
Information of the Buyer after the Initial Closing. In the event that the
Receiving Party or any Representative thereof is requested or required
(including, without limitation, (i) pursuant to any rule or regulation of any
stock exchange or other self-regulatory organization upon which any of the
Receiving Party's securities are listed, or (ii) under compulsion of law
(whether by oral question, interrogatory, subpoena, civil investigative demand
or otherwise) or by order of any court or governmental or regulatory body to
whose supervisory authority the Receiving Party is subject, including, without
limitation, Buyer Regulatory Approval and Seller Regulatory Approval processes,
interrogatory, subpoena, civil investigative demand, or similar process or
pursuant to any freedom of information or open meeting Law applicable to any
Seller) to disclose any Proprietary Information, the Receiving Party will notify
the Disclosing Party promptly of the request or requirement so that the
Disclosing Party may seek an appropriate protective order or waive compliance
with the provisions of this Section 7. If, in the absence of a protective order
or the receipt of a waiver hereunder, the Receiving Party is, on the advice of
counsel, compelled to disclose any Proprietary Information to any tribunal or
else stand liable for contempt or to disclose any Proprietary Information to any
Person in compliance with any freedom of information or open meeting Law, the
Receiving Party may disclose the Proprietary Information to the tribunal or such
Person; provided, however, that the Receiving Party shall use its Commercially
Reasonable Efforts to obtain, at the request of the Disclosing Party and at the
Disclosing Party's cost, a voluntary agreement or other assurance that
confidential treatment will be accorded to such portion of the Proprietary
Information required to be disclosed as the Disclosing Party shall designate.
Notwithstanding the foregoing, if a Receiving Party shall be compelled by order,
subpoena, interrogatory or other administrative or judicial directive to provide
Proprietary Information, it may furnish such information in accordance with said
directive provided that it shall (i) promptly notify the Disclosing Party in
writing of such directive and shall provide the Disclosing Party with an
opportunity to seek a protective order or other similar measure prior to the
time it furnishes such information, and (ii) exercise its Commercially
Reasonable Efforts to obtain assurances that confidential treatment will be
accorded such information.
(b) On or after the Initial Closing Date, the Buyer will notify the
Sellers of any non-public information related to the Acquired Assets that was
not confidential prior to the Initial Closing Date that the Buyer wishes to
treat as Proprietary Information after the Initial Closing and the Sellers will
treat such information as Proprietary Information after receiving such notice.
(c) The obligations of the Parties contained in this Section 7 shall
remain in full force and effect for three (3) years from the date hereof and
will survive the termination of
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this Agreement, the discharge of all other obligations owed by the Parties to
each other and any transfer of title to the Acquired Assets.
(d) Upon the Disclosing Party's prior written approval, which will
not be unreasonably withheld, the Receiving Party may provide Proprietary
Information to the XXXX, XXXXX, XXXX, the FERC, the NRC, the SEC, the IRS, the
United States Department of Justice, the United States Federal Trade Commission
or any other Governmental Authority with jurisdiction, as necessary, to obtain
any consents, waivers or approvals as may be required for the Parties to
undertake the transactions contemplated hereby. The Receiving Party will seek
confidential treatment for such Proprietary Information provided to any such
Governmental Authority and the Receiving Party will notify the Disclosing Party
as far in advance as is practicable of its intention to release to any such
Governmental Authority any such Proprietary Information, so as to permit such
Disclosing Party a reasonable opportunity to obtain a protective order.
(e) Notwithstanding anything set forth herein, nothing in this
Agreement shall be interpreted as precluding any Party from reporting or
disclosing any information (i) to the NRC concerning any perceived safety issue
within the NRC's regulatory jurisdiction, (ii) with the prior written consent
of the Disclosing Party, or (iii) to its Affiliates, attorneys, financial
advisors and accountants who are assisting such Party in connection with the
transactions contemplated by this Agreement, provided that such Affiliates,
attorneys, financial advisors and accountants acknowledge the provisions of this
Section 7 and agree to be bound hereby.
8. TAXES.
-----
(a) All transfer and sales Taxes incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne equally by the
Buyer and the Sellers, including, without limitation, New Hampshire state sales
tax and New Hampshire and local real estate, transfer, personal property and
conveyance taxes, and the Buyer, at its own expense, will file, to the extent
required by applicable Laws, all necessary Tax Returns and other documentation
with respect to all such Taxes, and, if required by applicable Laws, the Sellers
will join in the execution of any such Tax Returns or other documentation. Prior
to the Initial Closing Date or any Subsequent Closing Date, as the case may be,
the Buyer will provide to the Required Sellers or the Remaining Sellers, as the
case may be, to the extent possible, an appropriate certificate of no tax due
from each applicable taxing authority.
(b) With respect to Taxes to be prorated in accordance with Section
2.9, the Buyer shall prepare and timely file all Tax Returns required to be
filed on and after the Closing Dates with respect to the Acquired Assets and
shall duly and timely pay all such Taxes shown to be due on such Tax Returns.
The Buyer's preparation of any such Tax Returns shall be subject to the Sellers'
approval to the extent that such Tax Returns relate to any period, allocation or
other amount for which the Sellers are responsible, which approval shall not be
unreasonably withheld. No later than twenty-five (25) Business Days prior to the
due date of any such Tax
-75-
Return, the Buyer shall make such Tax Return available for the Sellers' review
and approval. The Sellers shall respond no later than ten (10) Business Days
prior to the due date for filing such Tax Return. The failure of any Seller to
timely respond shall constitute approval by such Seller of such Tax Return. With
respect to such Tax Return, the Sellers shall pay to the Buyer their appropriate
share of the amount shown as due on the Tax Returns determined in accordance
with Section 2.9 of this Agreement.
(c) Each of the Parties shall provide the other with such assistance
as may reasonably be requested in connection with the preparation of any Tax
Return, any audit or other examination by any taxing authority, or any judicial
or administrative proceedings relating to liability for Taxes, and each will
retain and provide the requesting Party with any records or information which
may be relevant to such Tax Return, audit or examination, proceedings or
determination. Any information obtained pursuant to this Section 8 or pursuant
to any other Section hereof providing for the sharing of information or review
of any Tax Return or other schedule relating to Taxes shall be deemed to be and
shall be Proprietary Information.
9. SURVIVAL; EFFECT OF CLOSING AND INDEMNIFICATION.
-----------------------------------------------
9.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; SURVIVAL OF COVENANTS AND
---------------------------------------------------------------------
AGREEMENTS. The representations and warranties of each Seller set forth in
----------
Sections 3.1, 3.2, 3.3, 3.6 and 3.21 shall expire at the Closing in which such
Seller participates. The representations and warranties of each Seller set forth
in Sections 3.4, 3.5, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16,
3.17, 3.18, 3.19, 3.20, 3.22, 3.23, 3.24 and 3.25 shall survive for a period of
12 months following the Closing in which such Seller participates. The
representations and warranties of NAESCO set forth in Section 3 shall survive
for a period of 12 months following the Initial Closing, except for the
representations and warranties set forth in Section 3.21, which shall expire at
the Initial Closing. The representations and warranties of the Buyer set forth
in Sections 4.1, 4.2, 4.3, 4.5, 4.7, 4.8 and 4.12 shall expire, with respect to
a given Seller, upon the Closing in which such Seller participates. The
representations and warranties of the Buyer set forth in Sections 4.4, 4.6, 4.9
and 4.11 shall survive, with respect to a given Seller, for a period of 12
months following the Closing in which such Seller participates. All
representations and warranties of the Parties and NAESCO contained in this
Agreement shall terminate upon a termination of this Agreement pursuant to
Section 10. The covenants of the Parties contained in this Agreement, other than
those which by their terms survive the Initial Closing and/or termination of
this Agreement (including, without limitation, the covenants set forth in
Sections 5.7, 5.8, 5.9, 5.10, 5.12, 5.13, 5.14, 5.15, 5.17, 5.18, 5.19, 5.21,
5.22, 5.23, 7, 8, 9, 11 and 12 and related definitions), shall terminate with
respect to a Seller, at the Closing in which such Seller participates, and with
respect to the Buyer, at the last Subsequent Closing, or the termination of this
Agreement pursuant to Section 10.
9.2. EFFECT OF CLOSING. Except as otherwise provided elsewhere in this
-----------------
Agreement, or as otherwise agreed by the Parties, upon the Initial Closing or
any Subsequent Closing, as the case may be, any condition in favor of either the
Buyer, the Required Sellers or the Remaining Sellers, as the case may be (each a
"Closing Party" and collectively the "Closing Parties") that
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has not been satisfied, or any representation, warranty or covenant that has
been breached or left unsatisfied by any Closing Party, or, to the extent
applicable, by NAESCO will be deemed waived by the Closing Parties as of such
Closing Date (but only with respect to those Closing Parties and such Closing
Date and not to any other Closing Parties or any Subsequent Closing, except
conditions that are deemed waived by the Closing Parties as of the Initial
Closing Date in which case such waiver shall be effective at each Subsequent
Closing), and each Closing Party will be deemed to fully release and forever
discharge the other Closing Parties on account of any and all claims,
Liabilities, obligations, judgments, Liens, injunctions, charges, orders,
decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties,
damages, expenses, fees, costs, amounts paid in settlement (including reasonable
attorneys' and expert witness fees and disbursements in connection with
investigating, defending or settling any action or threatened action), arising
out of any claim, complaint, demand, cause of action, action, suit or other
proceeding asserted or initiated or otherwise existing in respect of any matter,
known or unknown (collectively, the "Losses"), with respect to the same. Except
as provided in Sections 9.3 and 9.4, nothing in this Section 9.2 shall affect or
cause to be waived those matters specifically stated to survive or to occur
after such Closing Date pursuant to this Agreement.
9.3. INDEMNITY BY SELLERS. Subject to the last paragraph of this Section
--------------------
9.3, each Seller, on and after such Seller's respective Closing Date, hereby
severally agrees to indemnify, defend and hold harmless the Buyer, its
Affiliates and any of their officers, directors and employees, agents and
representatives ("Buyer Indemnified Parties") against and in respect of their
respective Losses; provided that such Losses result or arise from:
--------
(a) except as provided below in clauses (f) and (g), the untruth,
inaccuracy or incompleteness of any representation or warranty of such Seller
and/or of NAESCO contained in this Agreement or the Schedules hereto or in any
document, writing, certificate or data delivered by such Seller under this
Agreement; provided, and only to the extent, that Buyer's Loss therefrom exceeds
-------- --- ---- -- --- ------
$1,000,000;
(b) Liabilities of such Seller (whether known or unknown) other than
Assumed Liabilities, including, but not limited to, Excluded Liabilities;
(c) any Third Party Claim against the Buyer Indemnified Parties based
on or relating to such Seller's ownership, operation or use of the Acquired
Assets prior to the Initial Closing Date or any Subsequent Closing Date, as the
case may be, that is not an Assumed Liability;
(d) the Excluded Assets;
(e) any breach by such Seller of any covenant, agreement or
obligation of the Sellers contained in this Agreement or any certificate
required to be delivered by such Seller pursuant to this Agreement;
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(f) any intentional misrepresentation or fraudulent breach of any
representation or warranty of such Seller or NAESCO contained in this Agreement
or the Schedules hereto; provided that the indemnity obligations resulting or
arising from this clause (f) shall not be subject to the following limitations:
(i) the $1,000,000 threshold in clause (a), (ii) the cap on Liability set forth
in Section 9.5 or (iii) the survival period set forth in Section 9.1; or
(g) the untruth, inaccuracy or incompleteness of any representation
or warranty contained in Sections 3.7(a) and (b) and 3.13(e); provided that the
indemnity obligations in this clause (g) shall not be subject to the following
limitations: (i) the $1,000,000 threshold in clause (a) to the extent such
threshold would otherwise applied to the representations in Sections 3.7(a),
3.7(b) or 3.13(e), (ii) the cap on Liability set forth in Section 9.5 or (iii)
the survival period set forth in Section 9.1.
The indemnification obligations of the Sellers arising out of this
Section 9.3 shall be several and not joint or joint and several and shall be
limited to each Seller's Proportionate Ownership of any Loss, and no Seller
shall have any obligation under this Section 9.3 until such Seller has
transferred its Ownership Share to the Buyer; provided, however, that subject to
the proviso set forth in Sections 9.3(a) and to Section 9.5, each Seller alone
shall be liable to the Buyer Indemnified Party for the full amount of any Loss
arising from any matter involving such Seller only and no Seller shall under any
circumstances be liable to the Buyer for any matter involving one or more, but
less than all, Sellers other than such Seller.
9.4. INDEMNITY BY BUYER. The Buyer hereby agrees to indemnify, defend and
------------------
hold harmless each of the Sellers and their respective Affiliates and any of
their respective officers, directors and employees, agents and representatives
("Seller Indemnified Parties") against and in respect of all Losses; provided
that such Losses result or arise from:
(a) the untruth, inaccuracy or incompleteness of any representation
or warranty of the Buyer contained in this Agreement or the Schedules hereto or
in any document, writing, certificate or data delivered by the Buyer under this
Agreement; provided, and only to the extent, that Sellers' Loss therefrom
-------- --- ---- -- --- ------
exceeds $1,000,000;
(b) any Third Party Claim against the Seller Indemnified Parties
based on or relating to the Buyer's ownership, operation or use of the Acquired
Assets on and after the Initial Closing Date and any Subsequent Closing Date, as
the case may be, that is not an Excluded Liability;
(c) any Third Party Claim arising out of, or related to the
contracts, warranties or guaranties, or any other agreements that have been
properly transferred or assigned to the Buyer by any Seller, except to the
extent the Third Party Claim arises from a breach of the contract or agreement
by such Seller prior to the Initial Closing Date or the Subsequent Closing Date
on which such Seller transferred its Ownership Share, as the case may be;
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(d) the Assumed Liabilities, including without limitation Third Part
Claims arising out of the Assumed Liabilities;
(e) any breach by the Buyer of any covenant, agreement or obligation
of the Buyer contained in this Agreement or any certificate required to be
delivered by the Buyer pursuant to this Agreement; or
(f) any intentional misrepresentation or fraudulent breach of
representation or warranty inducing the Seller to proceed to a Closing Date and
causing any Seller Indemnified Party to suffer Losses.
9.5. EXCLUSIVE AND LIMITED REMEDIES. From and after the Initial Closing
------------------------------
Date, the remedies set forth in this Section 9 and in Section 11.19 shall
constitute the sole and exclusive remedy for any and all claims, damages,
complaints, demands, causes of action, investigations, hearings, actions, suits
or other proceedings relating to this Agreement and are in lieu of any and all
other rights and remedies which the Sellers or the Buyer may have under this
Agreement or otherwise for monetary relief with respect to any breach or failure
to perform or with respect to the Assumed Liabilities or Excluded Liabilities.
Each Party waives any provision of Law to the extent that it would limit or
restrict the agreements contained in this Section 9. Nothing herein shall
prevent the Buyer or the Sellers from terminating this Agreement in accordance
with Section 10. The maximum aggregate exposure for indemnity by the Buyer for
any and all claims of breach of express warranties or representations hereunder
and indemnification of claims relating thereto shall be $20,000,000; provided,
however, that in the event such breach of representation or warranty arises
under Section 9.4(f), such limitation shall not apply. The maximum aggregate
exposure for indemnity by all Sellers together for any and all claims of breach
of express warranties or representations hereunder and indemnification of claims
relating thereto shall be $20,000,000; provided, however, that in the event such
breach of representation or warranty arises under Sections 9.3(f) or 9.3(g),
such limitation shall not apply. This maximum exposure amount shall apply to
claims against Buyer or the Sellers, as the case may be, in the aggregate, with
each Seller being responsible only for that portion of such total that is equal
to its Proportionate Ownership. No Seller shall in any event be liable hereunder
for an amount in excess of the net proceeds of the sale of the Acquired Assets
received by such Seller. No Party shall be entitled to recover lost profits,
consequential, indirect, punitive or exemplary damages in regard to any claim
against the other Party.
9.6. NOTICE; DEFENSE OF CLAIMS.
-------------------------
(a) The Party which is entitled to indemnification hereunder (for
purposes of this Section 9.6, the "Indemnified Party") may make claims for
indemnification hereunder by giving written notice thereof to the Party required
to indemnify (for purposes of this Section 9.6, the "Indemnifying Party") prior
to the time of expiration set forth in Section 9.1 forclaims based on the
untruth, inaccuracy or incompleteness of any representation or warranty
specified therein or within six (6) months after the relevant Closing Date for
any other claims (other than claims
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relating to the Assumed Liabilities, the Excluded Liabilities, the Excluded
Assets, Third Party Claims referred to in Sections 9.3(c), 9.4(b), 9.4(c) or
9.4(d), or claims under Sections 9.3(f), 9.3(g) or 9.4(f), which claims may be
asserted until the applicable statute of limitations for such claims expires)
or such claim will be forever barred. If indemnification is sought for a claim
or liability asserted by a Third Party, the Indemnified Party shall also give
written notice thereof to the Indemnifying Party promptly after it receives
notice of the claim or liability being asserted, but the failure to do so, or
any delay in doing so, shall not relieve the Indemnifying Party from any
liability, unless, and then only to the extent that, the rights and remedies of
the Indemnifying Party are prejudiced as a result of the failure to give, or
delay in giving, such notice; provided, however, that in any event such notice
must be given within the relevant period specified or referred to in the
preceding sentence. Such notice shall summarize the bases for the claim for
indemnification and any claim or liability being asserted by a Third Party.
Within thirty (30) days after receiving such notice, the Indemnifying Party
shall give written notice to the Indemnified Party stating whether it disputes
the claim for indemnification and whether it will defend against any Third Party
Claim or liability at its own cost and expense. If the Indemnifying Party fails
to give notice to the Indemnified Party that it disputes an indemnification
claim within thirty (30) days after receipt of notice thereof it shall be deemed
to have accepted and agreed to the claim, which shall become immediately due and
payable.
(b) The Indemnifying Party shall be entitled to direct the defense
against a Third Party claim or litigation with counsel selected by it (subject
to the consent of the Indemnified Party, which consent shall not be unreasonably
withheld), as long as the Indemnifying Party is conducting a good faith and
diligent defense. Notwithstanding the foregoing, the obligations of the
Indemnifying Party hereunder as to such Third Party claim or litigation shall
include taking all steps reasonably necessary in the defense, settlement, or
compromise of such claim or litigation and holding the Indemnified Party
harmless from and against any and all Losses caused by or arising out of any
settlement or compromise approved by the Indemnifying Party or any judgment in
connection with such claim or litigation. The Indemnifying Party shall not, in
the defense of such Third Party claim or any litigation resulting therefrom,
consent to entry of any judgment (other than a judgment of dismissal on the
merits without costs) except with the written consent of the Indemnified Party
(which consent shall not be unreasonably withheld), or enter into any settlement
or compromise (except with the written consent of the Indemnified Party, which
consent shall not be unreasonably withheld) which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
Indemnified Party a full release from all liability in respect of such claim or
litigation and which does not contain any other term or provision materially
adverse to the Indemnified Party. The Indemnified Party shall at all times have
the right to fully participate in the defense of a Third Party claim or
liability at its own expense directly or through counsel; provided, however,
that if the named parties to the action or proceeding include both the
Indemnifying Party and the Indemnified Party and the Indemnified Party is
advised by counsel that representation of both parties by the same counsel would
be inappropriate under applicable standards of professional conduct, the
Indemnified Party may engage one separate counsel at the expense of the
Indemnifying Party.
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(c) If the Indemnifying Party does not give notice of its intent to
dispute and defend a Third Party claim or liability or litigation resulting
therefrom within thirty (30) days after receipt of notice from the Indemnified
Party, or if such good faith and diligent defense is not being or ceases to be
conducted by the Indemnifying Party, the Indemnified Party shall have the right,
at the expense of the Indemnifying Party, to undertake the defense of such claim
or liability in such manner as it deems appropriate (with counsel selected by
the Indemnified Party and reasonably acceptable to the Indemnifying Party), and
to compromise or settle such claim or litigation on such terms as it may deem
appropriate, exercising reasonable business judgment.
(d) The Indemnifying Party shall promptly reimburse the Indemnified
Party for all Losses incurred by the Indemnified Party in connection with the
defense against such claim or litigation, whether or not resulting from, arising
out of, or incurred with respect to, the act of a Third Party.
(e) The Indemnified Party shall make available such information and
assistance in connection with the defense by the Indemnifying Party, as the
Indemnifying Party may reasonably request and shall cooperate with the
Indemnifying Party in such defense at the expense of the Indemnifying Party.
(f) The expiration or termination of any representation or warranty
shall not affect the Parties' obligations under this Section 9 if the
Indemnified Party provided the Indemnifying Party with proper notice of the
claim or event for which indemnification is sought prior to such expiration,
termination or extinguishment.
9.7. NET OF TAXES AND INSURANCE. Any calculation of a Loss under this
--------------------------
Section 9 shall, in each case, give full effect to (a) any and all income Tax
benefits and costs to the Indemnified Party in respect of the Loss to the extent
realized by the Indemnified Party, but such amounts shall be increased to give
effect to income Taxes attributable to the receipt of any indemnification
payments hereunder, to the extent applicable, and (b) any and all insurance or
other proceeds received by the Indemnified Party in respect of the Loss. Any
Party seeking indemnity hereunder shall use Commercially Reasonable Efforts to
seek coverage for both costs of defense and indemnity under applicable insurance
policies.
9.8. RELEASE. Except as provided in Section 9.3, the Buyer hereby
-------
releases, holds harmless and forever discharges the Sellers from any and all
claims, damages, complaints, demands, causes of action, investigations,
hearings, actions, suits or other proceedings of any kind or character whether
known or unknown, hidden or concealed resulting from or arising from any
Environmental Liability, except for the Environmental Liabilities retained by
the Sellers pursuant to Section 2.4. The Buyer hereby waives any and all rights
and benefits that it now has, or in the future may have conferred upon it with
respect to any Environmental Claim it may have as contemplated by the preceding
sentence by virtue of any statute or common law principle which provides that a
general release does not extend to claims which a Party does not know or suspec
to exist in its favor at the time of such release, which if known, would have
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materially affected such Party's settlement with the other Party. In this
connection, the Buyer hereby acknowledges that factual matters now unknown to it
may have given or may hereafter give rise to claims, damages, complaints,
demands, causes of action, investigations, hearings, actions, suits or other
proceedings that are presently unknown, unanticipated and unsuspected, and it
further agrees that this Section 9.8 has been negotiated and agreed upon in
light of that awareness and it nevertheless hereby intends to release the
Sellers as set forth in the first sentence of this Section 9.8.
9.9. NO RECOURSE. To the extent the transfer, conveyance, assignment and
-----------
delivery of the Acquired Assets to the Buyer as provided in this Agreement is
accomplished by deeds, assignments, easements, leases, licenses, bills of sale,
or other instruments of transfer and conveyance, whether executed on the Initial
Closing Date or any Subsequent Closing Date, as the case may be, or thereafter,
such instruments are made without representation or warranty by, or recourse
against, the Sellers, except as expressly provided in this Agreement or in any
such instrument.
10. TERMINATION.
-----------
10.1. TERMINATION OF AGREEMENT. The Buyer and the Sellers may terminate
------------------------
this Agreement as provided below:
(a) The Buyer and the Sellers holding Ownership Shares representing
at least fifty-one percent (51%) of the aggregate ownership interests of all the
Participants in the Facility, for themselves and on behalf of the other Sellers,
may terminate this Agreement by mutual written consent at any time prior to the
Initial Closing Date.
(b) The Buyer and any Remaining Seller may terminate this Agreement
only with respect to such Remaining Seller by mutual written consent at any xxx
during the period following the Initial Closing and prior to a Subsequent
Closing with respect to such Remaining Seller.
(c) The Buyer may terminate this Agreement by giving written notice
to the Seller Representatives at any time prior to the Initial Closing Date or
any Subsequent Closing Date, as the case may be, if any of the following has
occurred:
(i) (A) prior to the Initial Closing, any Seller or NAESCO has
breached any representation or warranty in Section 3 (other than Section
3.10) or any Seller has breached any covenant in Section 5 in any material
respect or (B) after the Initial Closing and prior to the relevant
Subsequent Closing any Remaining Seller has breached any representation
or warranty in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7(b), 3.7(c), 3.8,
3.9, 3.12 or 3.13(e), and the Buyer has notified such Seller of the breach
and the breach has continued without cure for a period of sixty (60) days
after the notice of
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breach; provided, however, that the Buyer shall not have the right to
------- -------
terminate this Agreement pursuant to this clause (i) if such breach can
be cured within an additional reasonable time period, in which case such
Seller shall have, within such sixty (60) day period, commenced and
diligently continued in good faith actions to cure such breach within a
reasonable time period, which period shall in no event (A) in the case of
the Required Sellers, exceed twelve (12) months from the Effective Date, or
(B) in the case of the Remaining Sellers, exceed fifteen (15) months from
the Effective Date; and provided further that any such termination on
account of a breach by a Remaining Seller shall be effective as against
such Remaining Seller only;
(ii) (A) in the case of the Initial Closing, the Initial Closing
shall not have occurred on or before a date which is eight (8)months from
the Effective Date, which date shall be extended to a date which is twelve
(12) months from the Effective Date, only if the Initial Closing shall not
have occurred due to failure of any condition precedent under Section 6.1,
unless such condition precedent cannot reasonably be expected to be
satisfied within such additional period, or (B) in the case of any
Subsequent Closing, such Subsequent Closing shall not have occurred on or
before a date which is nine (9) months from the Effective Date, which dat
shall be extended to a date which is no more than fifteen (15) months from
the Effective Date, only if such Subsequent Closing shall not have occurred
due to failure of any condition precedent under Section 6.1, unless such
condition precedent cannot reasonably be expected to be satisfied within
such additional period; provided, however, that the Buyer shall not have
the right to terminate this Agreement pursuant to this clause (ii) if such
failure results primarily from the breach by the Buyer of any
representation, warranty or covenant contained in this Agreement;
(iii) any Buyer Regulatory Approvals shall have been Finally
denied, or appear reasonably likely to be denied, or shall have been
granted, or appear reasonably likely to be granted, subject to terms or
conditions that would be likely to have a Plant Material Adverse Effect,
and all appeals of such action shall have been taken and have been
unsuccessful;
(iv) one or more courts of competent jurisdiction shall have
issued an order, judgment or decree permanently restraining, enjoining or
otherwise prohibiting the consummation of any of the transactions
contemplated hereby, which order, judgment or decree shall have become
Final;
(v) any statute, rule or regulation shall have been enacted or
promulgated by any Governmental Authority having jurisdiction which,
directly or indirectly, prohibits the consummation of any of the
transactions contemplated hereby; or
(vi) (A) any Seller has within the then-previous fifteen (15)
days given the Buyer any notice pursuant to Section 5.5(a); (B) the Buyer
has notified the Seller Representatives of its intent to terminate pursuant
to this Section 10.1(c)(vi); and (C) the matter that is the subject of such
notice continues to exist for a period of 30 days after such notice by
the Buyer without such Seller having commenced and diligently continued
in good faith actions to cure such matter within a reasonable time;
provided, however,
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that any such termination with respect to a Remaining Seller shall be
effective as against such Remaining Seller only.
(d) Sellers holding at least 80% of the Ownership Shares for
themselves and on behalf of the other Sellers, may terminate this Agreement by
giving written notice to the Buyer at any time prior to the Initial Closing if
any of the following has occurred:
(i) the Buyer has breached any representation, warranty, or
covenant contained in this Agreement (except for a breach of Section 5.19
as specifically provided in clause (ii) of this Section 10.1(d)) in any
material respect, and any Seller has notified the Buyer of the breach,
and the breach has continued without cure for a period of sixty (60) days
after the notice of breach; provided, however, that the Sellers shall not
have the right to terminate this Agreement pursuant to this clause (i) if
the Buyer shall have, within such sixty (60)-day period, commenced and
diligently continued in good faith actions to cure such breach within a
reasonable time which period shall in no event exceed twelve (12) months
from the Effective Date;
(ii) the Buyer has breached Section 5.19 and the breach has
continued without cure for a period of five (5) days, except that any
Seller shall have the right to immediately terminate this Agreement
pursuant to this clause (ii) if the credit rating of the long-term
unsecured debt obligations of the Acceptable Guarantor has been downgraded
two or more levels since the Effective Date;
(iii) the Initial Closing shall not have occurred on or before a
date which is eight (8) months from the Effective Date, which date shall
be extended to a date which is twelve (12) months from the Effective Date
if such Closing shall not have occurred due to failure of any condition
precedent under Section 6.2, unless such condition precedent cannot
reasonably be expected to be satisfied within such additional period;
provided, however, that the Sellers shall not have the right to terminate
-------- -------
this Agreement pursuant to this clause (ii) if such failure results
primarily from the breach by any Seller of any representation, warranty or
covenant contained in this Agreement;
(iv) any Seller Regulatory Approvals shall have been Finally
denied, or appear reasonably likely to be denied, or shall have been
granted, or appear reasonably likely to be granted, subject to terms or
conditions that in the reasonable determination of Sellers holding at least
80% of the Ownership Shares would be likely to have a Material Adverse
Effect on the Sellers;
(v) one or more courts of competent jurisdiction shall have
issued an order, judgment or decree permanently restraining, enjoining or
otherwise prohibiting the consummation of any of the transactions
contemplated hereby, which order, judgment or decree shall have become
Final;
(vi) any statute, rule or regulation shall have been enacted or
promulgated by any Governmental Authority having jurisdiction which,
directly or indirectly, prohibits the consummation of any of the
transactions contemplated hereby; or
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(vii) (A) the Buyer has within the then-previous fifteen (15)
days given the Seller Representatives any notice pursuant to Section
5.5(b); (B) the Seller Representatives, for themselves and on behalf of the
other Sellers, have notified the Buyer of their intent to terminate
pursuant to this Section 10.1(d)(vii); and (C) the matter that is the
subject of such notice continues to exist for a period of thirty (30) days
after such notice by the Seller Representatives without the Buyer having
commenced and diligently continued in good faith actions to cure such
matter within a reasonable time.
(e) after the Initial Closing, any Remaining Seller may terminate
this Agreement only as to such Remaining Seller by giving written notice to th
Buyer at any time following the Initial Closing and prior to any Subsequent
Closing if any of the following has occurred:
(i) the Buyer has breached any representation, warranty, or
covenant contained in this Agreement in any material respect, and any
Remaining Seller has notified the Buyer of the breach, and the breach has
continued without cure for a period of sixty (60) days after the notice
of breach; provided, however, that the Remaining Sellers shall not have
the right to terminate this Agreement pursuant to this clause (i) if
the Buyer shall have, within such sixty (60)-day period, commenced and
diligently continued in good faith actions to cure such breach within a
reasonable time which period shall in no event exceed twelve (12)
months from the Effective Date;
(ii) such Subsequent Closing shall not have occurred on or
before a date which is nine (9) months from the Effective Date, which date
shall be extended to a date which is fifteen (15) months from the Effective
Date if such Subsequent Closing shall not have occurred due to failure of
any condition precedent under Section 6.2, unless such condition precedent
cannot reasonably be expected to be satisfied within such additional
period; provided, however, that the Remaining Sellers shall not have the
-------- -------
right to terminate this Agreement pursuant to this clause (ii) if such
failure results primarily from the breach by any Remaining Seller of any
representation, warranty or covenant contained in this Agreement;
(iii) any Seller Regulatory Approvals shall have been Finally
denied, or appear reasonably likely to be denied, or shall have been
granted, or appear reasonably likely to be granted, subject to terms or
conditions that in the reasonable determination of the Remaining Sellers
would be likely to have a Material Adverse Effect on the Remaining Sellers;
(iv) one or more courts of competent jurisdiction shall have
issued an order, judgment or decree permanently restraining, enjoining or
otherwise prohibiting the consummation of any of the transactions
contemplated hereby, which order, judgment or decree shall have become
Final;
(v) any statute, rule or regulation shall have been enacted or
promulgated by any Governmental Authority which, directly or indirectly,
prohibits the consummation of any of the transactions contemplated hereby
or
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(vi) (A) the Buyer has within the then-previous fifteen (15) days
given the Remaining Sellers any notice pursuant to Section 5.5(b); (B) such
Remaining Seller has notified the Buyer of its intent to terminate pursuant
to this Section 10.1(e)(vi), and (C) the matter that is the subject of such
notice continues to exist for a period of thirty (30) days after such
notice by such Remaining Seller without the Buyer having commenced and
diligently continued in good faith actions to cure such matter within a
reasonable time.
(f) Any Seller may terminate this Agreement only as to such Seller by
giving written notice to the Buyer and the Seller Representatives if the Initial
Closing shall not have occurred on or before a date which is eight (8) months
from the Effective Date, which date shall be extended to a date which is twelve
(12) months from the Effective Date if the Initial Closing shall not have
occurred due to failure of any condition precedent under Section 6.2, unless
such condition precedent cannot reasonably be expected to be satisfied within
such additional period; provided, however, that no Seller shall have the right
to terminate this Agreement pursuant to this Section 10.1(f) if such failure
results primarily from the breach by such Seller of any representation, warranty
or covenant contained in this Agreement; and provided further that if Sellers
owning Ownership Shares representing more than fifty-one percent (51%) of the
aggregate ownership interests of all of the Participants in the Facility
terminate this Agreement pursuant to this Section 10.1(f), the Buyer may
terminate this Agreement as to all other Sellers and the Buyer by delivering
written notice of such termination to the Seller Representatives within 30 days
after the termination by a Seller pursuant to this Section 10.1(f) that causes
the Ownership Shares to be held by all Sellers who have terminated pursuant to
this Section 10.1(f) to exceed 51%.
(g) It is expressly understood and agreed that in the event the
Initial Closing has not occurred by the dates set forth in Sections 10.1(c)(ii)
and 10.1(d)(iii), without regard to any extensions relating to Buyer Regulatory
Approvals or Seller Regulatory Approvals as set forth therein, the Parties
reserve the right to renegotiate any provisions of this Agreement which may be
materially affected by such passage of time.
This Agreement will terminate as to any Seller specified on
Schedule 3.5(iv) upon the consummation of a transfer by such Seller of its
---------------
Ownership Share to one of the Participants (other than a Seller) pursuant to
Section 23.1 of the Joint Ownership Agreement.
10.2. EFFECT OF TERMINATION. If either Party terminates this Agreement
---------------------
pursuant to Section 10.1, all rights and obligations of the Sellers whose
Closing has not occurred and the Buyer (with respect to such Sellers) shall
terminate without any Liability of any Party to any other Party (except for any
Liability of any Party then in breach and except as provided in Section 9.1 and
Section 7). In view of the expenses incurred and opportunities foregone by the
Buyer in connection with the negotiation and execution of this Agreement, if
this Agreement is terminated as permitted under Section 10.1(c)(i) due to the
existence of circumstances that cause the closing condition in Section
6.1(e)(ii) to not be satisfied as specified therein, each Seller shall
immediately pay to the Buyer a termination fee equal to such Seller's
Proportionate Ownership
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of $20,000,000 in cash. No obligations of any Seller under this Agreement shall
be terminated until such payment is received by the Buyer. The termination fee
specified in this Section 10.2 represents liquidated damages for the
consequences of the specified circumstances and is not a penalty. The Parties
acknowledge that the actual damages that would be suffered by the Buyer as a
result of such a breach would be extremely difficult to calculate with
precision.
11. MISCELLANEOUS.
-------------
11.1. PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue or
---------------------------------------
make, or allow to be issued or made, any press release or make any public
announcement relating to the subject matter of this Agreement without the prior
approval of the other Parties; provided, however, that any Party may make any
-------- -------
public disclosure it believes in good faith is required by applicable Law, or
any listing or trading agreement concerning its publicly traded securities (in
which case the disclosing Party, to the extent possible, shall provide the other
Parties with the opportunity to review in advance the disclosure).
11.2. NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
----------------------------
rights or remedies upon any Third Party.
11.3. APPOINTMENT OF SELLER REPRESENTATIVES AS AGENT FOR SELLERS. The
----------------------------------------------------------
Sellers hereby appoint the Seller Representatives to act as the agent of the
Sellers for purposes of performing those certain actions and complying with
those covenants and agreements expressly specified herein and in the Related
Agreements to be performed by the Seller Representatives (collectively, "Seller
Representative Actions"). It is expressly agreed and acknowledged that the
Seller Representatives act as agent of the Sellers for such purposes, and that
in performing the Seller Representative Actions the Seller Representatives shall
not, and shall have no authority to, take any action that would (i) create or
increase any commitment, obligation or liability of any Seller, (ii) decrease or
adversely affect the rights of, or benefits to be received by, any Seller
hereunder (including amounts to be received hereunder), (iii) constitute an
amendment or waiver of any provision of this Agreement or any Related Agreement,
or (iv) not be permitted under the Managing Agent Operating Agreement or Joint
Ownership Agreement. Any and all actions taken by the Seller Representatives, or
any agreement or covenant entered into by the Seller Representatives in
accordance with this Agreement shall be binding upon all the Sellers, and the
Buyer may rely upon any such action, agreement or covenant of the Seller
Representatives as the act, agreement or covenant of the Sellers.
Each of the Sellers hereby severally agrees to indemnify, defend and hold
harmless the Seller Representatives (acting in such capacity), their Affiliates
and any of their officers, directors and employees, agents and representatives
against and in respect of all Losses resulting from the Seller Representative
Actions, and none of the Seller Representatives shall have any liability to any
of the other Sellers for any Losses, whether in contract, tort, negligence,
strict liability or otherwise, for the performance or non-performance in good
faith of any Seller Representatives Actions; provided that:
--------
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(a) the Seller Representatives shall be liable, and shall not be
indemnified by the Sellers, for any Losses caused by the willful misconduct or
gross negligence of the Seller Representatives;
(b) the Sellers shall cooperate in all matters covered by this
indemnity and shall provide such support and assistance in matters pertaining to
the Seller Representatives' performance of and compliance with those actions,
covenants and agreements specified herein and in the Related Agreements, as the
Seller Representatives shall reasonably request from time to time; and
(c) the indemnification obligations of the Sellers under this Section
11.3 shall be several and not joint or joint and several and shall be limited to
each Seller's Proportionate Ownership of any Loss.
11.4. NO JOINT VENTURE. Nothing in this Agreement creates or is intended
----------------
to create an association, trust, partnership, joint venture or other entity or
similar legal relationship among the Parties, or impose a trust, partnership or
fiduciary duty, obligation, or liability on or with respect to the Parties.
Except as expressly provided herein, none of the Parties is or shall act as or
be the agent or representative of any of the other Parties.
11.5. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
-------------------
11.6. ENTIRE AGREEMENT. This Agreement, including the Related Agreements
----------------
and any other documents incorporated by reference herein, constitutes the entire
agreement among the Parties and supersedes any prior understandings, agreements,
or representations by or among the Parties, written or oral, to the extent they
related in any way to the subject matter hereof. All conflicts or
inconsistencies between the terms hereof and the terms of any of the Related
Agreements, if any, shall be resolved in favor of this Agreement.
11.7. SUCCESSION AND ASSIGNMENT. This Agreement and all of the provisions
-------------------------
hereof shall be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any
Party, including by operation of law, without the prior written consent of the
other Parties, such consent not to be unreasonably withheld or delayed, nor is
this Agreement intended to confer upon any other Person except the Parties any
rights, interests, benefits, obligations or remedies hereunder. Any assignment
in contravention of the foregoing sentence shall be null and void and without
legal effect on the rights and obligations of the Parties hereunder. No
provision of this Agreement shall create any third party beneficiary rights in
any employee or former employee of any Seller or NAESCO (including any
beneficiary or dependent thereof) in respect of continued employment or resumed
employment, and no provision of this Agreement shall create any rights in any
such Persons in respect of any benefits that may be provided, directly or
indirectly, under any employee benefit plan or arrangement.
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Notwithstanding the foregoing, but subject to all applicable Laws, (i) the Buyer
or its permitted assignee may assign, transfer, pledge or otherwise dispose of
(absolutely or as security) its rights and interests hereunder to a trustee,
lending institutions or other party for the purposes of leasing, financing or
refinancing the Acquired Assets, and (ii) the Buyer or its permitted assignee
may assign, transfer, pledge or otherwise dispose of (absolutely or as security)
its rights and interests hereunder to an Affiliate of the Buyer so long as such
Affiliate makes the representations and warranties set forth in Section 4 to the
same extent as the Buyer and provides Acceptable Guaranty to the Sellers;
provided, however, in each case that no such assignment shall relieve or
discharge the assigning Party from any of its obligations hereunder or shall be
made if it would reasonably be expected to prevent or materially impede,
interfere with or delay the transactions contemplated by this Agreement or
materially increase the cost of the transactions contemplated by this Agreement.
Each Party agrees, at the assigning Party's expense, to execute and deliver such
documents as may be reasonably necessary to accomplish any such assignment,
transfer, pledge or other disposition of rights and interests hereunder so long
as the nonassigning Party's rights under this Agreement are not thereby
materially altered, amended, diminished or otherwise impaired. Notwithstanding
the foregoing, in no event shall the rights or obligations acquired hereunder by
the Buyer or the Sellers be conveyed to any Third Party, directly or indirectly,
pursuant to the exercise of a right of first refusal under the Joint Ownership
Agreement.
11.8. COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
11.9. HEADINGS. The section headings contained in this Agreement are
--------
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.10. NOTICES.
-------
(a) All notices, requests, demands, consents, authorizations, claims,
and other communications hereunder must be in writing. Any notice, request,
demand, claim, or other communication (a "Communication") hereunder shall be
deemed duly given (i) one (1) Business Day following the date sent when sent by
overnight delivery and (ii) five (5) Business Days following the date mailed
when mailed by registered or certified mail return receipt requested and postage
prepaid at the following address:
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If to Seller:
------------
For NEP:
-------
Xxxxx X. Xxxxxxxxxxx
Vice President, Generation Investments
00 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Copy to:
Xxxxxx Xxxxx
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
For NHEC:
--------
Xxxxxxx X. Xxxxxxxx
V.P. Power Resources, Access and Pricing
New Hampshire Electric Cooperative, Inc.
000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Copy to:
Xxxx X. Xxxx, General Counsel
Xxxxxx, Xxxxxxxx and Branch
00 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
For GBP/LBP:
-----------
Xxxxx X. Xxxxxx Xx., President
BayCorp Holdings, Ltd.
00 Xxx Xxxxxxx, Xxxxx 0
Xxxxx, XX 00000
Copy to:
Xxxxxxx X. Xxxxxxx
McLane, Graf, Xxxxxxxxx & Middleton, Professional Association
000 Xxx Xxxxxx, Xxx 000
Xxxxxxxxxx, XX 00000-0000
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For Canal:
---------
Xxxxxxx X. Xxxxx
Senior Vice President and General Counsel
NSTAR Electric and Gas Corporation
000 Xxxxxxxx Xxxxxx/X0000
Xxxxxx, XX 00000
Copy to:
Xxxxxxx Xxxxxx, Esq.
NSTAR Electric and Gas Corporation
000 Xxxxxxxx Xxxxxx/X0000
Xxxxxx, XX 00000
For NAEC, CL&P and NAESCO:
-------------------------
Xxxx X. Xxxxx
Vice President - Administration
Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Copy to:
Xxxxxxx X. Xxxxxxx
Deputy General Counsel
Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
For The United Illuminating Company:
-----------------------------------
Xxxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
The United Illuminating Company
000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
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Copy to:
Xxxxxxx Xxxxxxxx
Xxxxxx & Xxxx
Xxx Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxx Xxxxx, XX 00000-0000
If to the Buyer:
---------------
Xxxxxx X. Xxxxxx
FPL Energy Seabrook, LLC
c/o FPL Energy, LLC
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Vice President and General Counsel
Any Party may send any Communication hereunder to the intended recipient at the
address set forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such Communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which Communications hereunder are to be
delivered by giving the other Parties notice in the manner herein set forth.
(b) The Seller Representatives shall (a) promptly furnish to the
other Sellers a copy of any Communication received by the Seller Representatives
from the Buyer or any Seller under this Agreement or any of the Related
Agreements, shall notify each of the other Sellers, and provide each of the
other Sellers with a summary, of any material oral communication from the Buyer
or any Seller under this Agreement or any of the Related Agreements, and shall
provide each Seller with such other information relating to this Agreement, the
Related Agreements or the transactions contemplated hereby reasonably requested
by any Seller; and (b) provide each of the other Sellers with reasonable
periodic updates regarding the progress toward the satisfaction of the covenants
and conditions set forth herein and in the Related Agreements and the
consummation of the transactions contemplated hereby and by the Related
Agreements.
11.11. GOVERNING LAW. This Agreement shall be governed by and construed
-------------
in accordance with the domestic Laws of the State of New Hampshire without
giving effect to any choice or conflict of law provision or rule (whether of New
Hampshire or any other jurisdiction) that would cause the application of the
Laws of any jurisdiction other than New Hampshire.
11.12. CHANGE IN LAW. If and to the extent that any Laws or regulations
-------------
that govern any aspect of this Agreement shall change, so as to make any aspect
of this transaction unlawful, then the Parties agree to make such modifications
to this Agreement as may be reasonably necessary
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for this Agreement to accommodate any such legal or regulatory changes, without
materially changing the overall benefits or consideration expected hereunder by
either party.
11.13. CONSENT TO JURISDICTION AND VENUE. Subject to and without limiting
---------------------------------
the dispute resolution procedure set forth in Section 12, each of the Sellers
and the Buyer consent to the exclusive jurisdiction and venue of the federal
court in Boston, Massachusetts for adjudication of any suit, claim, action or
other proceeding at law or in equity relating to this Agreement, or to any
transaction contemplated hereby. Each of the Sellers and the Buyer accepts,
generally and unconditionally, the exclusive jurisdiction and venue of the
aforesaid court and waive any objection as to venue, and any defense of forum
non conveniens.
11.14. AMENDMENTS AND WAIVERS. No amendment of any provision of this
----------------------
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Sellers. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
11.15. SEVERABILITY. Any term or provision of this Agreement that is held
------------
invalid or unenforceable in any situation shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation;
provided, however, that the remaining terms and provisions of this Agreement may
-------- -------
be enforced only to the extent that such enforcement in the absence of any
invalid terms and provisions would not result in (a) deprivation of a Party of a
material aspect of its original bargain upon execution of this Agreement or any
Related Agreement, (b) unjust enrichment of a Party, or (c) any other manifestly
unfair or inequitable result.
11.16. EXPENSES. Except as otherwise expressly provided herein, each of
--------
the Sellers and the Buyer will each bear its own costs and expenses (including
legal and accounting fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
11.17. CONSTRUCTION. Ambiguities or uncertainties in the wording of this
------------
Agreement will not be construed for or against any Party, but will be construed
in the manner that most accurately reflects the Parties' intent as of the
Effective Date they executed this Agreement. The Parties acknowledge that they
have been represented by counsel in connection with the review and execution of
this Agreement, and, accordingly, there shall be no presumption that this
Agreement or any provision hereof be construed against the Party that drafted
this Agreement or any portion hereof.
11.18. INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
---------------------------------------
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
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11.19. SPECIFIC PERFORMANCE. Each of the Parties acknowledges and agrees
--------------------
that the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter in addition to any other remedy to which it may be
entitled, at law or in equity.
11.20. DISPUTE NEGOTIATION. Prior to instituting any litigation or other
-------------------
dispute resolution as provided herein, the Parties will attempt in good faith to
resolve any dispute or claim by referring any such matter, within ten (10) days
of written notice of any such dispute or claim, to one of their respective
executive officers for resolution. The executive officers of the relevant
Parties shall attempt to resolve the dispute or claim within thirty (30) days.
11.21. GOOD FAITH COVENANT. The Parties agree that their actions and
-------------------
dealings with each other shall be subject to an express covenant of good faith
and fair dealing.
11.22. SET-OFF. Notwithstanding any provisions hereof to the contrary, in
-------
the event a Party shall be delinquent in the payment of any sum due any other
Parties under any note, this Agreement or any Related Agreement, in addition to
and without waiving any other remedies hereunder, the Party to whom the
obligation is owed shall be entitled to set off any sums due from the delinquent
Party under this Agreement or any Related Agreement, or any other obligations of
the delinquent Party, in full or partial satisfaction of such sum due from the
delinquent Party.
11.23. BULK TRANSFER ACT. The Parties hereby waive compliance with the
-----------------
bulk sales act or comparable statutory provisions of each applicable
jurisdiction.
11.24. NO RECOURSE TO NAESCO. The Buyer's sole recourse for any claim
---------------------
that NAESCO has breached the representations and warranties made by NAESCO
pursuant to Section 3, has incorrectly certified to any matter or has breached
any other provision hereof shall be as against the Sellers, on a several basis,
pursuant to and in accordance with the indemnification provided to the Buyer by
the Sellers pursuant to Section 9.3 hereof, and no recourse shall be sought by
the Buyer as against NAESCO for such breach. Moreover, each of the Sellers
hereby acknowledge and agree that they shall seek no recourse against NAESCO fo
the making of said representations and warranties pursuant to Section 3 hereof,
making any certifications or undertaking any other obligations under this
Agreement and hereby waive any right of subrogation which they may otherwise
have in connection therewith.
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11.25. BUYER OBLIGATIONS. Subject to Section 11.7, any obligations of the
-----------------
Buyer under this Agreement or the Related Agreements may be satisfied or
performed by an Affiliate of the Buyer.
12. DISPUTE RESOLUTION. Any dispute arising out of this Agreement or any of
------------------
the Related Agreements, or the consummation of the transactions contemplated
hereby or thereby involving a monetary claim of less than $3,000,000 or at the
election of the parties, except as otherwise provided herein or therein, shall
be submitted to binding dispute resolution in the following manner. Within ten
(10) days following receipt of a written request by one Party to the other, the
Parties will each select one representative with the particular knowledge and
expertise relevant to the technical, financial or other matter in dispute (the
"Dispute Representative") to serve on a dispute resolution panel (the "Panel").
Each Party will notify the other in writing of its Dispute Representative within
such ten (10) day period. Within ten (10) days following the selection of the
Dispute Representatives, the Dispute Representatives shall mutually agree upon
the selection of a third member of the Panel who shall also possess the
particular knowledge and expertise relevant to the subject matter of the
dispute. If the Dispute Representatives cannot agree on the selection of a third
member of the Panel within ten (10) days after their selection, they will obtain
a list of qualified individuals from mutually agreeable professional association
or society and each in turn shall have the option of removing one name at a time
from such list until an acceptable individual is selected as the third member of
the Panel or until only one name remains (in which case the individual whose
name remains shall be the third member of the Panel). Within fifteen (15) days
after the selection of the third member of the Panel, the Parties will agree
upon a process which is appropriate for the resolution of the dispute, including
the presentation of live testimony or documentary evidence, as they deem
appropriate, and shall further agree upon such other procedures, such as the
presentation of summation papers or closing argument, as they deem appropriate.
The Panel will render a binding decision no later than thirty (30) days
following the selection of the third member of such Panel, unless the Parties
agree upon an extension of such thirty (30)-day period. The decision of the
Panel shall be final and binding on all Parties. All dispute resolution
proceedings shall be held in Boston, Massachusetts. All documents, information
and other evidence produced for or in connection with such proceeding shall be
held in confidence by the Parties. Each Party shall bear the compensation and
expenses of its chosen Dispute Representative, and the expenses of the third
member of the Panel shall be borne equally by the Buyer, on the one hand, and
the Sellers, on the other hand. Each Party shall bear the compensation and
expenses of its legal counsel, witnesses and employees.
13. DEFINITIONS.
-----------
"345 KV SUBSTATION" means those assets described on Schedule 2.1(y) and
shown on the drawing referenced therein.
"ACCEPTABLE GUARANTOR" means a Person with a rating of its long-term
unsecured debt obligations of not less than Investment Grade.
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"ACCEPTABLE GUARANTY" means a guaranty issued by an Acceptable
Guarantor, substantially in the form of Exhibit H attached hereto.
---------
"ACQUIRED ASSETS" has the meaning set forth in Section 2.1.
"ACQUIRED ASSETS EMPLOYEE RECORDS" means all personnel records
maintained by or on behalf of the Sellers relating to the Acquired Assets
Employees to the extent such files contain (a) names, addresses, dates of birth,
job titles and descriptions; (b) starting dates of employment; (c) salary and
benefits information; (d) resumes and job applications; (e) Occupational Safety
and Health Administration reports (or the equivalent); (f) active medical
restriction forms; (g) fitness for duty and disciplinary action information; and
(h) any other documents relating to Acquired Assets Employees.
"ACQUIRED ASSETS EMPLOYEEs" has the meaning set forth in Section
5.7(b).
"ACT OF BANKRUPTCY" means the filing of a petition in bankruptcy (or
other commencement of a bankruptcy or similar proceeding) by or against the
Buyer under the Bankruptcy Code or other applicable bankruptcy, insolvency or
similar Law, whether federal or state, as now or hereafter in effect.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"AGREEMENT" has the meaning set forth in the preamble to this
Agreement, together with Schedules and Exhibits hereto, as the same may be
amended from time to time.
"AGREEMENT TO AMEND TRANSMISSION SUPPORT AGREEMENT" means the Agreement
to Amend Transmission Support Agreement in substantially the form attached
hereto as Exhibit N.
---------
"ANI" means American Nuclear Insurers, or any successor thereto.
"ANNOUNCEMENT DATE" means following the close of business on April 15,
2002.
"APPLICATION" means all necessary or appropriate actions to request NRC
approval in respect of a Transfer of License for a Facility, including a change
in the operator of such Facility.
"ASSET DEMARCATION AGREEMENT" means the Asset Demarcation Agreement
between the Buyer and the Sellers, in substantially the form attached hereto as
Exhibit C.
---------
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and
Assumption Agreement between the Buyer and the relevant party thereto, in
substantially the form attached hereto as Exhibit D.
---------
"ASSUMED LIABILITIES" has the meaning set forth in Section 2.3.
"ATOMIC ENERGY ACT" means the Atomic Energy Act of 1954, as amended,
42 U.S.C. Section 2011 et seq., or any successor statute.
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"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor statute.
"XXXX OF SALE" means the Xxxx of Sale, in substantially the form of
Exhibit B attached hereto.
---------
"BOND COUNSEL" has the meaning set forth in Section 5.8(d)(ii).
"BUSINESS DAY" means any day other than a Saturday, Sunday or day on
which banks are legally closed for business in New York, New York.
"BUSINESS PLAN" means "Seabrook Station Business Strategy, 2002-2005."
"BUYER" has the meaning set forth in the preamble above.
"BUYER INDEMNIFIED PARTIES" has the meaning set forth in Section 9.3.
"BUYER REGULATORY APPROVALS" means those approvals identified on
Schedule 6.1(c) attached hereto to be obtained by the Buyer as a condition to
--------------
the Buyer's obligations under this Agreement.
"BUYER'S DECOMMISSIONING FUND" has the meaning set forth in
Section 5.10(a)
"BUYER'S PLAN" has the meaning set forth in Section 5.7(c).
"BUYER'S NONQUALIFIED DECOMMISSIONING FUND" has the meaning set forth
in Section 5.10(a).
"BUYER'S QUALIFIED DECOMMISSIONING FUND" has the meaning set forth in
Section 5.10(a).
"CANAL" has the meaning set forth in the preamble of this Agreement.
"CASH" means cash and cash equivalents (including marketable securities
and short term investments) calculated in accordance with GAAP.
"CL&P" has the meaning set forth in the preamble of this Agreement.
"CLOSING" has the meaning set forth in Section 2.10.
"CLOSING DATE" has the meaning set forth in Section 2.10.
"CLOSING PARTY" and "Closing Parties" have the meanings as set forth in
Section 9.2
"COBRA" means the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended and the applicable regulations promulgated thereunder.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLECTIVE BARGAINING AGREEMENTS" has the meaning set forth in Section
3.16.
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"COMMERCIALLY REASONABLE EFFORTS" means efforts which are reasonably
within the contemplation of the Parties at the Effective Date and which do not
require the performing Party to expend any funds other than expenditures which
are customary and reasonable in nature and amount in transactions of the kind
and nature contemplated by this Agreement in order for the performing Party to
satisfy its obligations hereunder or otherwise assist in the consummation of the
transactions contemplated by this Agreement.
"COMMUNICATION" has the meaning set forth in Section 11.10.
"CONTESTED PROCEEDING" when used in connection with a Transfer of
License, means a proceeding commenced by the issuance of a "notice of hearing"
under 10 C.F.R. Section 2.104 or Section 2.105 Subsection (e)(2), as the case
may be, or 10 C.F.R. Section 2.1308 or Section 2.1309.
"COORDINATION DATE" has the meaning set forth in Section 6.3(a).
"DECOMMISSIONING" means to remove of the Facility from service and
restore the Site, in accordance with applicable Laws, including (a) the
dismantlement, decontamination, and/or safe storage of the Facility, in whole or
in part, and any reduction or removal, whether before or after termination of
the applicable NRC License, of radioactivity at the Site, and (b) all
activities, necessary for the retirement, dismantlement, and decontamination of
the Facility to comply with all applicable Nuclear Laws and Environmental Laws,
including the applicable requirements of the Atomic Energy Act, the NRC's rules,
regulations, orders and pronouncements thereunder, the NRC Licenses, any related
decommissioning plan, all applicable requirements of New Hampshire Laws and
regulations (including but not limited to RSA 162-F:15) and other applicable
Laws. The parties understand and acknowledge that, as of the Effective Date,
entombment is not considered to be an acceptable form of Decommissioning in New
Hampshire.
"DECOMMISSIONING FUNDS" means the Qualified Decommissioning Funds and
the Nonqualified Decommissioning Funds.
"DECOMMISSIONING TRUST AGREEMENT" means the Trust Agreement dated
October 11, 1988 among New Hampshire Yankee Division of Public Service Company
of New Hampshire, as agent, First NH Investment Services, Corp., as Trustee, and
the Treasurer of the State of New Hampshire as modified, supplemented and
amended through the Effective Date.
"DECOMMISSIONING TRUST CLOSING AMOUNT" means the amount determined
pursuant to Section 5.10(a).
"DECOMMISSIONING TRUSTS" means the irrevocable trusts created pursuant
to the Decommissioning Trust Agreement, consisting of assets held in Qualified
Decommissioning Funds and Nonqualified Decommissioning Funds.
"DEEDS" means the Deed for the NAEC Real Property substantially in the
form of Exhibit A(i) attached hereto, and the Deed for the Jointly Owned Real
-----------
Property substantially in the form of Exhibit A(ii) attached hereto.
------------
"DEFERRAL DATE" has the meaning set forth in Section 6.3(a).
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"DISBURSING AGENT AGREEMENT" means the Agreement for Seabrook Project
Disbursing Agent, dated as of May 23, 1984, by and among the Participants and
NAESCO, as amended and restated.
"DISCLOSING PARTY" has the meaning set forth in the definition of
"Proprietary Information."
"DISPUTE REPRESENTATIVE" has the meaning set forth in Section 12.
"DISQUALIFICATION EVENT" means any amendment to the Decommissioning
Trust Agreements which, assuming that the Qualified Decommissioning Funds were
not disqualified at the Closing Date, would disqualify such Qualified
Decommissioning Funds under (a) Section 468A of the Code and the Regulations
promulgated thereunder as in effect on the Closing Date; (b) any Final,
temporary or proposed regulations published by the Department of Treasury; or
(c) any other written guidance published by the IRS.
"DIVESTITURE SITE MANAGER" means that NAESCO employee who is the
project manager for the Seabrook divestiture.
"DOE" means the U.S. Department of Energy or any successor thereto.
"DOE STANDARD CONTRACT" means the Contract for Disposal of Spent
Nuclear Fuel and/or High Level Radioactive Xxxxx, Xx.XX-XX00-00XX00000, dated as
of June 27, 1986, between the United States of America, represented by the
United States Department of Energy, and the Sellers or their Affiliates.
"DOLLARS" or "$" means lawful currency of the United States of America.
"DPUC" means the State of Connecticut Department of Public Utility
Control, or any successor commission, agency or officer.
"EASEMENT AGREEMENT" means the agreement with respect to certain
easements in the form of Exhibit M.
---------
"EFFECTIVE DATE" means the date on which this Agreement has been duly
executed and validly delivered by the Parties.
"ELECTING REQUIRED SELLER" has the meaning set forth in Section 6.3(a).
"ELIGIBLE ACQUIRED ASSETS EMPLOYEES" means an Acquired Assets Employee
whose age is between 50 and 54 as of the Announcement Date, and whose age plus
years of credited service as determined under the Plan as of such Announcement
Date equals or exceeds 65.
"EMERGENCY PREPAREDNESS AGREEMENTS" has the meaning set forth in
Section 2.1(n).
"EMERGENCY PREPAREDNESS ASSETS" has the meaning set forth in Section
2.1(n).
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"EMPLOYEE BENEFIT PLAN" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee Pension
Benefit Plan, (b) qualified defined contribution retirement plan or arrangement
which is an Employee Pension Benefit Plan, (c) qualified defined benefit
retirement plan or arrangement which is an Employee Pension Benefit Plan, (d)
Employee Welfare Benefit Plan or material fringe benefit plan, program or
arrangement or (e) profit sharing, bonus, stock option, stock purchase, equity,
stock appreciation, deferred compensation, incentive, severance plan or other
benefit plan.
"EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA
Section 3 Subsection (2).
"EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA
Section 3 Subsection (1).
"ENVIRONMENT" means soil, land surface or subsurface strata, real
property, surface waters (including navigable waters, ocean waters, streams,
ponds, drainage basins and wetlands), groundwater, water body sediments,
drinking water supply, stream sediments, ambient air (including indoor air),
plant and animal life (including fish and all other aquatic life) and any other
environmental medium or natural resource.
"ENVIRONMENTAL CLAIM" means a claim by any Person based upon a breach
of Environmental Law or an Environmental Liability alleging loss of life, injury
to persons, property or business, damage to natural resources or trespass to
property.
"ENVIRONMENTAL CLEAN-UP SITE" means any location which is listed or
formally proposed for listing on the National Priorities List, the Comprehensive
Environmental Response, Compensation and Liability Information System, or on any
similar state list of sites requiring investigation or cleanup, or which is the
subject of any action, suit, proceeding, or investigation which has been
disclosed in writing to any Seller for any alleged violation of any
Environmental Laws.
"ENVIRONMENTAL LAWS" means all applicable Laws and any binding
administrative or judicial interpretations thereof relating to: (a) the
regulation, protection and use of the Environment; (b) the conservation,
management, development, control and/or use of land (including zoning Laws and
ordinances), natural resources and wildlife; (c) the management, manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, Release, abatement, removal, remediation, or handling of, or exposure
to, any Hazardous Substances; or (d) noise; and includes, without limitation,
the following federal statutes (and their implementing regulations): the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended; the Solid Waste Disposal Act, as amended, 42 U.S.C. paragraph 6901
et seq.; the Federal Water Pollution Control Act of 1972, as amended, 33 U.S.C.
paragraph 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15
U.S.C. paragraph 2601 et. seq.; the Clean Air Act of 1966, as amended, 42 U.S.C.
paragraph 7401 et. seq.; the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended, 7 U.S.C. paragraph 136 et. seq.; the Coastal Zone Management
Act of 1972, as amended, 16 U.S.C. paragraph 1451 et seq.; the Oil Pollution Act
of 1990, as amended, 33 U.S.C. paragraph 2701 et seq.; the Rivers and Harbors
Act of 1899, as amended, 33 U.S.C. paragraph 401 et seq.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. paragraph 1801 et seq.; the
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Endangered Species Act of 1973, as amended, 16 U.S.C. paragraph 1531 et seq.;
and the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. paragraph 300(f)
et seq.; and all analogous or comparable state statutes and regulations;
provided, however, that in no event shall "Environmental Laws" include any
Nuclear Law.
"ENVIRONMENTAL LIABILITIES" means any Liability under or related to
former or current Environmental Laws or the common law, whether such liability
or obligation or responsibility is known or unknown, contingent or accrued,
arising as a result of or in connection with (a) any violation or alleged
violation of Environmental Laws, prior to, on or after the any Closing Date,
with respect to the ownership, operation or use of the Acquired Assets; (b) loss
of life, injury to persons, property or business or damage to natural resources
(whether or not such loss, injury or damage arose or was made manifest before
any Closing Date or arises or becomes manifest after any Closing Date), caused
(or allegedly caused) by the presence or Release of Hazardous Substances at, on,
in, under, above, adjacent to or migrating from the Acquired Assets prior to, on
or after any Closing Date, including, but not limited to, Hazardous Substances
contained in building materials at the Acquired Assets or in the atmosphere,
soil, surface water, sediments, groundwater, landfill cells, or in other
environmental media at or adjacent to the Acquired Assets; (c) the investigation
and/or Remediation (whether or not such investigation or Remediation commenced
before any Closing Date or commences after any Closing Date) of Hazardous
Substances that are present or have been Released prior to, on or after any
Closing Date at, on, in, under, above, adjacent to or migrating from the
Acquired Assets, including, but not limited to, Hazardous Substances contained
in building materials at the Acquired Assets or in the atmosphere, soil, surface
water, sediments, groundwater, landfill cells, or in other environmental media
at or adjacent to the Acquired Assets; (d) subject to the provisions of Section
5.14, compliance with applicable Environmental Laws prior to, on or after any
Closing Date with respect to the ownership or operation or use of the Acquired
Assets; (e) loss of life, injury to persons, property or business or damage to
natural resources caused (or allegedly caused) by the offsite disposal, storage,
transportation, discharge, Release or recycling, or the arrangement for such
activities, of Hazardous Substances, prior to, on or after any Closing Date, in
connection with the ownership or operation of the Acquired Assets; and (f) the
investigation and/or remediation of Hazardous Substances that are disposed,
stored, transported, discharged, Released, recycled, or the arrangement of such
activities, prior to, on or after any Closing Date, in connection with the
ownership or operation of the Acquired Assets; provided, however, that in no
event shall "Environmental Liabilities" include any Nuclear Liability.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESTIMATED ADJUSTMENT" has the meaning set forth in Section 2.6(d)(i).
"ESTIMATED CLOSING STATEMENT" has the meaning set forth in Section
2.6(d)(i).
"ESTIMATED FACILITY PURCHASE PRICE ADJUSTMENT" has the meaning set
forth in Section 2.6(d)(i).
"ESTIMATED FUEL PURCHASE PRICE ADJUSTMENT" has the meaning as set forth
in Section 2.6(d)(i).
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"ESTIMATED UNIT 2 PURCHASE PRICE ADJUSTMENT" has the meaning set forth
in Section 2.6(d)(i).
"EVENT OF LOSS" has the meaning set forth in Section 5.11.
"EXCLUDED ASSETS" has the meaning set forth in Section 2.2.
"EXCLUDED LIABILITIES" has the meaning set forth in Section 2.4.
"EXHIBITS" means the exhibits to this Agreement.
"EXISTING NDFC ORDER" has the meaning set forth in Section 5.10(a).
"FACILITY" means all of the real and personal property (including the
Acquired Assets) constituting the nuclear power plant known as Seabrook Station.
"FACILITY LEASE" means the Facility Lease, dated as of August 1, 1990,
as supplemented between UI and the Owner Trustee, pursuant to which UI leases
the Undivided Interest.
"FACILITY PURCHASE PRICE" has the meaning set forth in Section 2.5(a).
"FACILITY PURCHASE PRICE ADJUSTMENT" has the meaning set forth in
Section 2.6(d)(ii).
"FERC" means the Federal Energy Regulatory Commission, or its
regulatory successor, as applicable.
"FINAL" or "FINALLY," when applied to a decision, approval or act of
any Governmental Authority, means that the decision, approval or act has
occurred, purports to be the final resolution and has not been stayed by any
Governmental Authority, and all periods, up to ninety (90) days, for appeal,
rehearing or reconsideration within the Governmental Authority making such
decision have expired.
"FINAL SAFETY ANALYSIS REPORT" or "FSAR" means the report, as updated,
that is required for the Facility in accordance with the requirements of 10
C.F.R. ss. 50.71(e).
"FIRPTA AFFIDAVIT" means the affidavit to be delivered by each Seller
at the Closing at which it is transferring its Ownership Share in substantially
the form of Exhibit G attached hereto.
"FUEL PURCHASE PRICE" has the meaning set forth in Section 2.5(a).
"FUEL PURCHASE PRICE ADJUSTMENT" has the meaning set forth in Section
2.6(d)(ii).
"FUNDING ASSURANCE" has the meaning set forth in RSA 162-F.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"GBP" has the meaning set forth in the preamble of this Agreement.
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"GOOD UTILITY PRACTICES" means any of the practices, methods and acts
engaged in or approved by a significant portion of the nuclear electric utility
industry during the relevant time period, or any of the practices, methods or
acts which, in the exercise of reasonable judgment in light of the facts known
at the time the decision was made, could have been expected to accomplish the
desired result at a reasonable cost consistent with good business practices,
reliability, safety and expedition. Good Utility Practices are not intended to
be limited to the optimum practice, method or act to the exclusion of all
others, but rather to be acceptable practices, methods or acts generally
accepted in the United States.
"GOVERNMENTAL AUTHORITY" means any federal, state, local or other
governmental, regulatory or administrative agency, commission, department,
board, or other governmental subdivision, court, tribunal, arbitral body or
other governmental authority.
"XXXX-XXXXX-XXXXXX ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"HAZARDOUS MATERIAL" or "HAZARDOUS MATERIALS" means oil and hazardous
materials or wastes, air emissions, hazardous or toxic substances, wastewater
discharges and any chemical, material or substance or other emissions that may
give rise to Liability under, or is listed or regulated under, applicable
Environmental Laws as a "hazardous" or "toxic" substance or waste, or as a
"contaminant," or is otherwise listed or regulated under applicable
Environmental Laws because it poses a hazard to human health or the environment;
provided, however that in any case "Hazardous Materials" shall not include any
Nuclear Material, High Level Waste or Low Level Waste.
"HAZARDOUS SUBSTANCE" means any Hazardous Material.
"HIGH LEVEL WASTE" means (a) Spent Nuclear Fuel, (b) the highly
radioactive material resulting from the reprocessing of Spent Nuclear Fuel,
including liquid wastes produced directly in reprocessing and any solid material
derived from such liquid waste that contains fission products in sufficient
concentrations or quantities that exceed NRC requirements for classifications as
Low Level Waste, and (c) other highly radioactive material that the NRC,
consistent with existing law, determines by rule requires permanent isolation.
"IMPROVEMENTS" means all buildings, structures (including all fuel
handling and storage facilities), machinery and equipment, fixtures,
construction in progress, including all piping, cables and similar equipment
forming part of the mechanical, electrical, plumbing or HVAC infrastructure of
any building, structure or equipment, located on and affixed to the Site, or
used in or for the operation of the Facility.
"INCOME TAX" means any federal, state, local or foreign Tax (a) based
upon, measured by or calculated with respect to net income, profits or receipts
(including, without limitation, capital gains Taxes and minimum Taxes) or (b)
based upon, measured by or calculated with respect to multiple bases (including,
without limitation, corporate franchise taxes) if one or more of the bases on
which such Tax may be based, measured by or calculated with respect to, is
described in clause (a), in each case together with any interest, penalties or
additions to such Tax.
"INDEMNIFIED PARTY" has the meaning set forth in Section 9.6(a).
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"INDEMNIFYING PARTY" has the meaning set forth in Section 9.6(a).
"INDENTURE" means the Indenture of Mortgage and Deed of Trust, dated as
of August 1, 1990 among the Owner Trustee, and UI and The Bank of New York.
"INDEPENDENT ACCOUNTING FIRM" means an independent accounting firm of
national standing as is mutually appointed by the Buyer and the Sellers.
"INDEPENDENT APPRAISER" has the meaning set forth in Section 2.8.
"INITIAL CLOSING" has the meaning set forth in Section 6.3.
"INITIAL CLOSING DATE" has the meaning set forth in Section 2.10.
"INPO" means Institute of Nuclear Power Operations.
"INTELLECTUAL PROPERTY" means all trade secrets, copyrights, copyright
applications, patents, patent applications, patent rights, trademarks, trademark
applications, trade names, service marks, service xxxx applications, computer
programs and other computer software, inventions, designs, samples,
specifications, schematics, know-how, proprietary processes, domain names,
websites, source and object code and other intellectual property rights.
"INTELLECTUAL PROPERTY LICENSES" means those agreements related to
Licensed Intellectual Property.
"INTERCONNECTION AGREEMENT" means the Interconnection Agreement between
the Buyer and PSNH relating to certain interconnection services to be performed
by PSNH, substantially in the form of Exhibit E attached hereto.
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"INTERIM PERIOD" means that period of time commencing on the Effective
Date and ending on the Initial Closing Date.
"INTERIM SERVICES AGREEMENT" means the Interim Services Agreement
between Buyer and NUSCO, substantially in the form of Exhibit J attached hereto.
"INVENTORY" or "INVENTORIES" means all materials and supplies
(designated as "Materials and Supplies" in books and records of NAESCO)
including fuel inventories (excluding Nuclear Fuel or Spent Nuclear Fuel),
materials, spare parts, consumable supplies and chemical and gas inventories
located at the Site, in transit to the Site or identified in any Schedule to the
extent owned or paid for, for use at the Site prior to the applicable Closing.
"INVENTORY DEFICIT AMOUNT" has the meaning set forth in Section 2.6(a).
"INVENTORY EXCESS AMOUNT" has the meaning set forth in Section 2.6(a).
"INVESTMENT GRADE" means one of the four highest generic rating
categories assigned by S&P, Xxxxx'x or any other nationally recognized
statistical rating organization.
"IRS" means the Internal Revenue Service or any successor agency.
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"IRS RULING AMOUNT" has the meaning set forth in Section 3.8.
"ISO-NE" means ISO New England Inc., or its successor.
"JOINTLY OWNED REAL PROPERTY" has the meaning set forth in Section
2.1(a)(ii).
"JOINT OWNERSHIP AGREEMENt" means the Agreement for Joint Ownership,
Construction and Operation of the New Hampshire Nuclear Units, dated as of May
1, 1973, as supplemented and amended through the date hereof, among the
Participants.
"KNOWLEDGE" means the actual, current knowledge of a Party's board of
directors, board of trustees, any of its statutory or non-statutory officers or
managers charged with responsibility for the function, or any person who reports
directly to such board or trustees, at the relevant time or, with respect to any
certificate delivered pursuant to this Agreement, on the date of delivery of the
certificate.
"LAW" or "LAWS" means all laws, rules, regulations, codes, injunctions,
judgments, orders, decrees, rulings, interpretations, constitution, ordinance,
common law, or treaty, of any Governmental Authority.
"LBP" has the meaning set forth in the preamble of this Agreement.
"LEASED PROPERTIES" means leasehold interests in certain real property
identified as lessee interests on Schedule 2.1(e).
"LEASES" has the meaning set forth in Section 2.1(e).
"LIABILITY" or "LIABILITIES" means any liability or obligation (whether
known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
whether incurred or consequential and whether due or to become due), including
any liability for Taxes. Without limiting the generality of the foregoing, in
the case of the NRC Licenses "Liabilities" shall include NRC Commitments.
"LICENSED INTELLECTUAL PROPERTY" means the Intellectual Property set
forth on Schedule 2.1(x).
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"LIEN" means any mortgage, pledge, lien, security interest, charge,
claim, equitable interest, infringement of a third party patent, copyright,
trade secret or other intellectual property right, encumbrance, restriction on
transfer, conditional sale or other title retention device or arrangement
(including, without limitation, a capital lease), transfer for the purpose of
subjection to the payment of any indebtedness, or restriction on the creation of
any of the foregoing, whether relating to any property or right or the income or
profits therefrom; provided, however, that the term "Lien" shall not include any
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Permitted Encumbrances.
"LOCAL" means Local Union Number 55 of the Utility Workers of America.
"LOSSES" has the meaning set forth in Section 9.2.
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"LOW LEVEL WASTE" means radioactive material that (a) is not High Level
Waste, Spent Nuclear Fuel, or byproduct material (as defined in the Atomic
Energy Act) and (b) the NRC, consistent with existing law, classifies as
low-level radioactive waste.
"MAJOR LOSS" has the meaning set forth in Section 5.11(b).
"MANAGING AGENT OPERATING AGREEMENT" means the Seabrook Project
Managing Agent Operating Agreement, dated as of June 29, 1992, between NAESCO
and the Participants, as supplemented and amended.
"MATERIAL CONTRACTS" has the meaning set forth in Section 2.1(g).
"MATERIAL ADVERSE EFFECT" means, when used in connection with any
person, any change, effect, event, occurrence or state of facts (i) that is, or
would likely be, materially adverse to the business, assets, properties,
financial condition, results of operations of such person and its subsidiaries
taken as a whole or (ii) that prevents, or can reasonably be expected to
prevent, such person from performing any of its material obligations under this
Agreement or consummation of the transactions contemplated hereby; provided,
however, that Material Adverse Effect shall not include any change (or changes
taken together) generally affecting the international, national, regional or
local wholesale or retail electric industry as a whole or nuclear generating
facilities of their operations or operators as a whole which does not affect the
Acquired Assets or the Parties in any manner or degree significantly different
than the industry as a whole, including but not limited to (a) changes in
markets for electric power or fuel used in connection with the Acquired Assets,
(b) changes resulting from or associated with acts of war or terrorism or
changes imposed by a Governmental Authority associated with additional security
to address the events of September 11, 2001, or (c) changes (individually or
taken together) in the North American, national, regional or local electric
transmission systems or operations thereof; and provided, further, that any
loss, claim, occurrence, change or effect that is cured prior to the Initial
Closing Date or a Subsequent Closing Date, as the case may be, at the Sellers'
expense shall not be considered a Material Adverse Effect.
"MDTE" means the Massachusetts Department of Telecommunications and
Energy, and its successors.
"MEMORANDUM OF UNDERSTANDING WITH THE TOWN OF SEABROOK" means the
Memorandum of Understanding, dated April 10, 2001, between the Participants, the
Town of Seabrook, New Hampshire and the State of New Hampshire regarding the
mitigation of the off-site visual impact of the Unit 2 containment building.
"MINIMUM EMPLOYMENT PERIOD" has the meaning set forth in Section
5.7(a).
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"MORTGAGE INDENTURE" means the First Mortgage Indenture and Deed of
Trust dated May 1, 1921 between CL&P and the trustee named therein, as amended
and supplemented to the date hereof and any other similar instrument or
agreement entered into by any Seller.
"MULTIEMPLOYER PLAN" has the meaning set forth in ERISA Section 3(37).
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"NAEC" has the meaning set forth in the preamble to this Agreement.
"NAEC Real Property" has the meaning set forth in Section 2.1(a)(i).
"NAEC Real Property Purchase Price" has the meaning set forth in
Section 2.5(a).
"NAESCO" means North Atlantic Energy Service Corporation, a New
Hampshire corporation.
"NDFC" means the New Hampshire Nuclear Decommissioning Financing
Committee or any successor committee, agency or officer.
"NEI" means Nuclear Energy Institute, or any successor thereto.
"XXXX" means Nuclear Electric Insurance Limited, or any successor
thereto.
"NEP" has the meaning set forth in the preamble to this Agreement.
"NEPOOL" means the New England Power Pool, established by the NEPOOL
Agreement, or its successor.
"NEPOOL AGREEMENT" means the New England Power Pool Agreement, dated
September 1, 1971, as amended by the Restated New England Power Pool Agreement
filed with FERC on June 22, 1998, as Finally approved by FERC and as further
amended from time to time.
"NHEC" has the meaning set forth in the preamble of this Agreement.
"NHPUC" means the New Hampshire Public Utilities Commission or any
successor commission, agency or officer.
"NON-ASSIGNED CONTRACT" has the meaning set forth in Section 2.2(g).
"NONQUALIFIED DECOMMISSIONING FUNDS" means the external trust funds
that do not meet the requirements of Code Section 468A or Treas. Reg. ss.
1.46A-5, maintained by the Sellers with respect to the Facility prior to a
Closing pursuant to such Seller's Decommissioning Trust Agreement.
"NON-REPRESENTED PLANT EMPLOYEES" has the meaning set forth in Section
5.7(b).
"NPCC" has the meaning set forth in Section 3.30.
"NRC" means the United States Nuclear Regulatory Commission, as
established by Section 201 of the Energy Reorganization Act of 1974, as amended,
42 U.S.C. Section 5841, or any successor commission, agency or officer.
"NRC COMMITMENTS" means all written commitments made by the Sellers, as
documented in their NRC commitment tracking system, to the NRC and as identified
on Schedule 3.11(iv).
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"NRC LICENSES" means Facility Operating License No. NPF-86 and
Materials License No. 00-00000-00 on the basis of which the Sellers are
authorized to own, possess and operate the Facility and Nuclear Materials prior
to the Initial Closing Date, and on the basis of which the Buyer is authorized
to own, possess and operate the Facility and Nuclear Materials after the Initial
Closing Date.
"NRC STAFF" means the regulatory staff of the NRC.
"NUCLEAR FUEL" means all nuclear fuel assemblies in the Facility
reactor on a Closing Date and any irradiated nuclear fuel assemblies that have
been temporarily removed from the Facility reactor as of a Closing Date and all
nuclear unirradiated fuel assemblies awaiting insertion into the Facility
reactor, as well as all nuclear fuel constituents in any stage of the fuel cycle
which are in the process of production, conversion, enrichment or fabrication
for use in the Facility or which have been or will be purchased for the
Facility.
"NUCLEAR FUEL CONTRACTS" means contracts between the Sellers or their
Affiliates and a Third Party providing for the purchase and sale of Nuclear Fuel
for the Facility.
"NUCLEAR INSURANCE POLICIES" means all nuclear insurance policies
described in Schedule 2.1(r) carried by or for the benefit of the Sellers with
respect to the ownership, operation or maintenance of the Facility, including
all Nuclear Liability, property damage and business interruption policies in
respect thereof.
"NUCLEAR LAWS" means all applicable Federal, state, local, provincial,
foreign and international civil and criminal laws, regulations, rules,
ordinances, codes, decrees, judgments, directives, or judicial or administrative
orders relating to the regulation of nuclear power plants, source material,
byproduct material and special nuclear materials (as defined in the Atomic
Energy Act); the regulation of Low Level Waste and High Level Waste; the
transportation and storage of Nuclear Materials; the regulation of safeguards
information; the regulation of nuclear fuel; the enrichment of uranium; the
disposal and storage of High Level Waste and Spent Nuclear Fuel; contracts for
any payments into the Nuclear Waste Fund; and as applicable, the antitrust laws
and the Federal Trade Commission Act to specified activities or proposed
activities of certain licenses of commercial nuclear reactors, but shall not
include Environmental Laws. "Nuclear Laws" include the Atomic Energy Act of
1954, as amended (42 U.S.C. paragraph 2011 et seq.); the Xxxxx-Xxxxxxxx Act
(paragraph 170 of the Atomic Energy Act of 1954, as amended); the Energy
Reorganization Act of 1974 (42 U.S.C. paragraph 5801 et seq.); Convention on the
Physical Protection of Nuclear Material Implementation Act of 1982 (Public Law
97-351; 96 Stat. 1663); the Foreign Assistance Act of 1961 (22 U.S.C. paragraph
2429 et seq.); the Nuclear Non-Proliferation Act of 1978 (22 U.S.C. paragraph
3201); the Low-Level Radioactive Waste Policy Act (42 U.S.C. paragraph 2021b et
seq.); the Nuclear Waste Policy Act, (42 U.S.C. paragraph 10101 et seq., as
amended); the Low-Level Radioactive Waste Policy Amendments Act of 1985 (42
U.S.C. paragraph 2021d, 471); the Energy Policy Act of 1992 (4 U.S.C. paragraph
13201 et seq.); and RSA 162-F; and any applicable state or local Laws analogous
to the foregoing.
"NUCLEAR LIABILITY" means any Liability arising out of or resulting
from the hazardous or radioactive properties of (i) Nuclear Material or any
other fissionable isotope and (ii) any fission product resulting from the
fission process.
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"NUCLEAR MATERIAL" means any source, special nuclear or byproduct
material, as defined in the Atomic Energy Act of 1954, as amended.
"NUSCO" means Northeast Utilities Service Company, a wholly owned
subsidiary of Northeast Utilities and an Affiliate of NAEC, PSNH and CL&P.
"OFFSITE HAZARDOUS SUBSTANCE FACILITY" means a location, or transport
vehicle or vessel, which accepts or accepted Hazardous Substances.
"OTHER ASSIGNED CONTRACTS" has the meaning set forth in Section 2.1(p).
"OTHER RELATED ASSETS" has the meaning set forth in Section 21.(v).
"OWNED INTELLECTUAL PROPERTY" means the Intellectual Property set forth
on Schedule 2.1(q).
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"OWNERSHIP SHARE" means, with respect to each Seller and expressed as a
percentage, the undivided ownership interest and obligation, as tenant in
common, of such Seller in the Facility as set forth in Schedule 1(a) provided,
------------
however, that, in the case of UI, Ownership Share shall include the Undivided
Interest.
"OWNER TRUSTEE" means First Union Trust Company, National Association,
not in its individual capacity but solely as successor Owner Trustee under the
Trust Agreement, dated as of August 1, 1990, as supplemented, with Financial
Leasing Corporation.
"OWNER TRUSTEE DEED AND XXXX OF SALE" means the Deed and Xxxx of Sale,
in substantially the form of Exhibit K hereto.
"PANEL" has the meaning set forth in Section 12.
"PARTICIPANTS" means those Persons that are parties to the Joint
Ownership Agreement.
"PARTY" or "PARTIES" has the meaning set forth in the preamble to this
Agreement.
"PC BONDHOLDERS" has the meaning set forth in Section 5.8(d).
"PERMITS" means all certificates, licenses, permits, approvals,
consents, orders, exemptions, decisions and other actions of a Governmental
Authority to the extent pertaining to a particular Acquired Asset, the Facility
and the Site or the ownership, operation or use thereof.
"PERMITTED ENCUMBRANCES" means and includes: (a) Liens for Taxes or
other charges or assessments by any Governmental Authority to the extent that
the payment thereof is not in arrears or otherwise due or is being contested in
good faith; (b) encumbrances in the nature of zoning restrictions, building and
land use Laws, ordinances, orders, decrees, restrictions or any other conditions
imposed by or pursuant to any agreement with any Governmental Authority provided
the same do not materially detract from operation or use of such property or in
the business conducted at the Facility; (c) easements (including without
limitation, the Seller Easements) granted or reserved by an instrument executed
in connection with this Agreement or
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the Related Agreements or the transactions contemplated hereby or thereby, but
excluding such encumbrances that secure indebtedness; (d) deposits or pledges
made in connection with, or to secure payment of, workers' compensation,
unemployment insurance, pension programs mandated under applicable Laws or other
social security regulations; (e) statutory or common law liens in favor of
carriers, warehousemen, mechanics and materialmen, statutory or common law liens
to secure claims for labor, materials or supplies and other like liens, which
secure obligations to the extent that payment thereof is not in arrears or
otherwise due; (f) any Lien or title imperfection with respect to the Acquired
Assets created by or resulting from any act or omission of the Buyer and in any
case of any representation or warranty required from a Seller pursuant to
Section 3.7 in connection with a Subsequent Closing, any Lien which first arises
after the Initial Closing created or resulting from any act or omission of any
owner of the Facility other than said Seller, and (g) any exception set forth in
the Title Commitments.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company, an unincorporated organization, or a Governmental Authority.
"PLAN" has the meaning set forth in Section 5.7(c)(i).
"PLANT EMPLOYEE" has the meaning set forth in Section 5.7(b).
"PLANT MATERIAL ADVERSE EFFECT" means any event, circumstance, claim,
occurrence, change or effect related to the Acquired Assets which could
reasonably be expected to cause a loss and/or the expenditure by the Buyer
within one year following the Initial Closing Date in excess of $2,000,000
individually, or in excess of $10,000,000 in the aggregate; provided, however,
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that Plant Material Adverse Effect shall not include any change (or changes
taken together) generally affecting the international, national, regional or
local wholesale or retail electric industry as a whole or nuclear generating
facilities or their operations or operators as a whole which does not affect the
Acquired Assets or the Parties in any manner or degree significantly different
than the industry as a whole, including but not limited to (a) changes in
markets for electric power or fuel used in connection with the Acquired Assets,
(b) changes resulting from or associated with acts of war or terrorism or
changes imposed by a Governmental Authority associated with additional security
to address the events of September 11, 2001, or (c) changes (individually or
taken together) in the North American, national, regional or local electric
transmission systems or operations thereof; and provided, further, that any
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event, circumstance, claim, occurrence, change or effect that is cured prior to
the Initial Closing Date or any Subsequent Closing Date, as the case may be, at
the Sellers' expense shall not be considered a Plant Material Adverse Effect.
"POLLUTION CONTROL FACILITIES" has the meaning set forth in Section
5.8(d).
"POLLUTION CONTROL BONDS" has the meaning set forth in Section 2.4(m).
"POST-CLOSING STATEMENT" has the meaning set forth in Section
2.6(d)(ii).
"PRE-APPROVED CAPITAL EXPENDITURES" means those capital expenditures
set forth on Schedule 5.3 as the same may be amended from time to time by mutual
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agreement of the Sellers acting in accordance with the Managing Agent Operating
Agreement and the Buyer.
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"PRIVATE LETTER RULING REQUESTS" has the meaning set forth in Section
5.20.
"PROPERTY TAX AGREEMENTS" means agreements between the Buyer and each
taxing authority having jurisdiction and powers to impose real property Tax or
personal property Tax or other Taxes on the Acquired Assets.
"PROPORTIONATE OWNERSHIP" means a Seller's percentage ownership of that
portion of the Facility being transferred to the Buyer, as set forth in
Schedule 3.1(i), which in the case of UI shall include the Undivided Interest.
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The sum of the Proportionate Ownership of all Sellers in each of the Acquired
Assets (other than the NAEC Real Property) shall equal 100%.
"PROPOSED IMPROVEMENTS" has the meaning set forth in Section 5.3(b).
"PROPRIETARY INFORMATION" means this Agreement, the Related Agreements,
all information concerning the Facility, this Agreement and the Related
Agreements and the discussions and negotiations leading up to the execution of
this Agreement, and all information about a Party or its properties or
operations furnished by such Party (the "Disclosing Party") or its
Representatives to the other Party (the "Receiving Party") or its
Representatives, which information either is not available in the public domain
or is marked or designated in writing by the Disclosing Party as "confidential,"
regardless of the manner or medium in which it is furnished. Proprietary
Information does not include information that (a) is or becomes generally
available to the public, other than as a result of a disclosure by the Receiving
Party or its Representatives in violation of this Agreement; (b) was available
to the Receiving Party on a nonconfidential basis prior to its disclosure by the
Disclosing Party or its Representatives; (c) becomes available to the Receiving
Party on a nonconfidential basis from a Person, other than the Disclosing Party
or its Representatives, each of whom, to the Receiving Party's Knowledge, is not
otherwise bound by a confidentiality agreement with the Disclosing Party or its
Representatives, or is not otherwise under any obligation to the Disclosing
Party or any of its Representatives not to transmit the information to the
Receiving Party or its Representatives, or (d) the Disclosing Party discloses to
others on a non-confidential basis.
"PSNH" means Public Service Company of New Hampshire, a New Hampshire
corporation.
"QUALIFIED DECOMMISSIONING FUNDS" means the external trust funds that
meet the requirements of Code Section 468A and Treas. Reg. ss. 1.468A-5,
maintained by the Sellers with respect to the Facility prior to a Closing
pursuant to such Seller's Decommissioning Trust Agreement.
"QUALIFIED DEPOSITS" has the meaning set forth in Section 5.10(c).
"RADIOACTIVE MATERIAL" means any material that is radioactive or
contaminated with radioactivity.
"REAL PROPERTY" has the meaning set forth in Section 2.1(a)(ii).
"RECEIVING PARTY" has the meaning set forth in the definition of
Proprietary Information.
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"REFUELING OUTAGE" means the refueling outage number ORO9 for the
Facility currently scheduled to commence in October, 2003, including the
refueling of the Facility and the performance of certain maintenance, inspection
and other work in connection therewith.
"RELATED AGREEMENTS" means the Deeds, Assignment and Assumption
Agreement, Xxxx of Sale, Owner Trustee Deed and Xxxx of Sale, Asset Demarcation
Agreement, Interconnection Agreement, Releases of Mortgage Indenture, Easement
Agreement, Interim Services Agreement and Agreement to Amend Transmission
Support Agreement.
"RELEASE" means any actual, threatened or alleged spilling, leaking,
pumping, pouring, emitting, dispersing, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing of any Hazardous Substance into the
Environment that may cause an Environmental Liability (including the disposal or
abandonment of barrels, containers, tanks or other receptacles containing or
previously containing any Hazardous Substance).
"RELEASE OF MORTGAGE INDENTURE" means a release of mortgage indenture,
in the case of CL&P, substantially in the form of Exhibit F attached hereto.
---------
"RELEVANT FACILITY PURCHASE PRICE" has the meaning set forth in Section
2.5(b).
"RELEVANT FUEL PURCHASE PRICE" has the meaning set forth in Section
2.5(b).
"RELEVANT XXXX 0 XXXXXXXX XXXXX" has the meaning set forth in Section
2.5(b).
"REMAINING SELLERS" has the meaning set forth in Section 6.3.
"REMEDIATE" or "REMEDIATION" means any or all of the following
activities to the extent required to address the presence or Release of
Hazardous Substances: (a) monitoring, investigation, assessment, treatment,
cleanup containment, removal, mitigation, response or restoration work as well
as obtaining any permits, consents, approvals or authorizations of any
Governmental Authority necessary to conduct any such activity; (b) preparing and
implementing any plans or studies for any such activity; (c) obtaining a written
notice from a Governmental Authority with competent jurisdiction under
Environmental Laws, that no material additional work is required; and (d) any
other activities reasonably determined by a party to be necessary or appropriate
or required under Environmental Laws.
"REPRESENTED EMPLOYEES" has the meaning set forth in Section 5.7(a).
"REPRESENTED PLANT EMPLOYEES" has the meaning set forth in Section
5.7(a).
"REPRESENTATIVE" means, as to any Person, such Person's Affiliates and
its and their directors, trustees, officers, employees, agents, consultants,
advisors (including, without limitation, financial advisors, counsel and
accountants).
"REQUESTED RULINGS" has the meaning set forth in Section 5.20.
"REQUIRED ASSETS" has the meaning set forth in Section 6.3.
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"REQUIRED EXPENDITURE" has the meaning set forth in Section 5.3(a).
"REQUIRED NUCLEAR EXPENDITURE" means a capital expenditure that is (a)
required in order to satisfy an order from the NRC or other applicable legal
requirement, (b) required in order to preclude, forestall or satisfy any form of
NRC enforcement action (including, without limiting the generality of the
foregoing, a so-called "confirmatory action letter"), or (c) necessary in order
to cause the Facility to meet NRC regulations; provided however, that Required
Nuclear Expenditures shall not include expenses associated with a Refueling
Outage.
"REQUIRED SELLERS" has the meaning set forth in Section 6.3.
"RIPUC" means the Rhode Island Public Utility Commission.
"RSA" means New Hampshire Revised Statutes Annotated.
"RULE OF 85" has the meaning set forth in Section 5.7(c)(iii).
"SEABROOK" has the meaning set forth in the preamble to this Agreement.
"SEABROOK UNIT 1 SECURED LEASE OBLIGATION BONDS" means those bonds
issued by the Owner Trustee under and secured by the Indenture.
"SCHEDULE" means a schedule to this Agreement.
"S&P" means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx
Corporation, or any successor thereto.
"SEC" means the Securities and Exchange Commission, or any successor
thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SELLER EASEMENT" means an easement for use of any Real Property
granted to PSNH pursuant to an Easement Agreement.
"SELLER ENVIRONMENTAL LIABILITIES" has the meaning set forth in Section
5.12.
"SELLER INDEMNIFIED PARTIES" has the meaning specified in Section 9.4.
"SELLER REGULATORY APPROVALS" means those approvals identified on
Schedule 6.2(c) hereto to be obtained by each Seller as a condition to such
--------------
Seller's obligations under this Agreement.
"SELLER REPRESENTATIVES" means NAEC and CL&P.
"SELLER REPRESENTATIVE ACTIONS" has the meaning set forth in Section
11.3.
"SELLER" or "SELLERS" has the meaning set forth in the preamble to
this Agreement.
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"SITE" means the Real Property on which the Facility is located or
which forms part of, or is used or usable in connection with, the operation of
the Facility, and includes all NAEC Real Property described in Schedule
--------
2.1(a)(i), all Jointly Owned Real Property described in Schedule 2.1(a)(ii) and
--------- ------------------
all Leased Property. Any reference to the Site shall include, by definition, the
surface and subsurface elements, including the soils and groundwater present at
the Site, and any reference to items "at the Site" shall include all items "at,
on, in, upon, over, across, under and within" the Site.
"SOLVENT" means, as to any Person, that such Person has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage and is able to pay its debts as they
mature and owns property having a value, both at fair valuation and at present
fair saleable value, greater than the amount required to pay its debts.
"SPENT NUCLEAR FUEL" means uranium fuel and other radioactive materials
associated with nuclear fuel assemblies that has been permanently withdrawn from
a nuclear reactor following irradiation, and has not been chemically separated
into its constituent elements by reprocessing.
"SUBSEQUENT CLOSING" has the meaning set forth in Section 6.3.
"SUBSEQUENT CLOSING DATE" has the meaning set forth in Section 2.10.
"SUPPLEMENTAL INDENTURE" means a supplemental indenture between each
Seller, the Buyer, the Trustee and the Treasurer of the State of New Hampshire
amending and supplementing the Decommissioning Trust Agreement in a manner
acceptable to the Buyer and the Sellers, pursuant to which (a) the Buyer shall
agree to assume the due and punctual performance of all Liabilities of each
Seller arising after the relevant Closing Date under the relevant trust
agreement, (b) the Buyer shall succeed to and be substituted for such Seller
thereunder, and (c) the relevant trust agreement shall be amended as necessary
to ensure that the Buyer has the right to appoint and remove the trustee and the
investment manager and the ability to direct the investment of funds in the
Decommissioning Trust in any investment permitted by applicable Law, rule or
regulation.
"TAKING" has the meaning set forth in Section 5.11.
"TAX" or "TAXES" means any federal, state, local, or foreign income,
gross receipts, business enterprise, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Section 59A of the Code), customs duties, capital stock,
franchise, profits, withholding, social security (or similar, including FICA),
unemployment, disability, real property (including the Utility Property Tax),
recordation, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of any kind whatsoever,
including any interest, penalty, or addition thereto, whether disputed or not.
"TAX BASIS" means the adjusted tax basis determined for federal income
tax purposes under Section 1011(a) of the Code.
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"TAX RETURN" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"TERMINATION AGREEMENT" means the Termination Agreement, dated as of
November 1, 2001, among Financial Leasing Corporation, the Owner Trustee, The
Bank of New York, as Indenture Trustee, and UI.
"THIRD PARTY" means a Person who is not a Party, an Affiliate of a
Party, a Representative of a Party, a Representative of an Affiliate of a Party
or a shareholder of any Party, a Party's Affiliate or a Party's Representative.
"THIRD PARTY CLAIM" means any claim asserted by a Third Party.
"TITLE COMMITMENTS" has the meaning set forth in Section 3.7.
"TITLE COMPANY" means, Fidelity National Title Insurance Company of New
York, or another title company as selected by the Buyer.
"TRADEMARKS" means any trademarks, service marks, trade dress, and
logos, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith.
"TRANSFER OF LICENSE" means the transfer of any of the NRC Licenses
from the Sellers to the Buyer and includes any act for which the approval of the
NRC is required by Atomic Energy Act Section 184 and 10 C.F.R. Section 50.80 or
otherwise.
"TRANSFERABLE PERMITS" has the meaning set forth in Section 2.1(f).
"TRANSITION EXECUTIVE COMMITTEe" has the meaning set forth in Section
5.3(b).
"TRANSMISSION CREDIT" has the meaning set forth in Schedule 2.6(a)(x).
------------------
"TRANSMISSION SUPPORT AGREEMENT" means the Transmission Support
Agreement, dated as of May 1, 1973, as supplemented and amended, among the
Participants.
"TRUSTEE" means the trustee of the Qualified Decommissioning Funds and
the Nonqualified Decommissioning Funds.
"UI" has the meaning set forth in the preamble of this Agreement.
"UI BOND REDEMPTION CONDITION PRECEDENT" has the meaning set forth in
Section 6.3(a).
"UI BONDS" have the meaning set forth in Section 6.2(m).
"UNDIVIDED INTEREST" means the Owner Trustee's 11.61577% undivided
ownership interest in Unit 1 (as defined in the Facility Lease).
"UNIT 1" means Seabrook Xxxx 0.
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"UNIT 2" has the meaning set forth in Section 2.1(d).
"UNIT 2 PURCHASE PRICE" has the meaning set forth in Section 2.5(a).
"Unit 2 PURCHASE PRICE ADJUSTMENT" has the meaning set forth in Section
2.6(d)(ii).
"UTILITY PROPERTY TAX" means the tax imposed by the State of New
Hampshire under RSA 83-F.
"VEHICLES" has the meaning set forth in Section 2.1(o).
"VTPSB" means the Vermont Public Service Board.
"WARN ACT" means the Workers Adjustment and Retraining Notification Act
of 1988, as amended.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
FPL ENERGY SEABROOK, LLC
By: /s/ X.X. Xxxxx
--------------------------------
Name: X.X. Xxxxx
Title: Vice President
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
NORTH ATLANTIC ENERGY CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President-Administration
Northeast Utilities Service Company,
As Agent for North Atlantic Energy Corporation
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
THE UNITED ILLUMINATING COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chairman of the Board of
Directors and Chief Executive
Officer
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
GREAT BAY POWER CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President and CEO
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
NEW ENGLAND POWER COMPANY
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
THE CONNECTICUT LIGHT AND POWER COMPANY
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President-Administration
Northeast Utilities Service Company,
As Agent for The Connecticut Light
and Power Company
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
CANAL ELECTRIC COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President, Clerk
and General Counsel
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
LITTLE BAY POWER CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President and CEO
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
NEW HAMPSHIRE ELECTRIC COOPERATIVE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: VP, Power Resources, Access
and Pricing
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
NORTH ATLANTIC ENERGY SERVICE CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President-Administration
Northeast Utilities Service Company,
As Agent for North Atlantic Energy
Corporation
