EXHIBIT B-1
ASSET TRANSFER AGREEMENT
AMONG
UNION ELECTRIC COMPANY D/B/A AMEREN UE,
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY D/B/A AMEREN CIPS
AND
AMEREN CORPORATION
DATED AS OF , 2000
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TABLE OF CONTENTS
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ARTICLE I. TRANSFER OF ASSETS..................................................2
1.1 Identification of Assets.............................................2
(a) Inventory.....................................................2
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(b) Fixed Assets..................................................2
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(c) Real Property.................................................2
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(d) Leased Property...............................................2
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(e) Intellectual Property Rights..................................3
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(f) Business Records..............................................3
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(g) Contracts.....................................................3
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(h) Permits.......................................................3
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(i) Insurance.....................................................3
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(j) Rolling Stock and Vehicles....................................3
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(k) Petty Cash....................................................3
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(l) Accounts Receivable...........................................3
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(m) Uncollectible Accounts........................................4
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(n) Accrued Revenues..............................................4
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(o) Environmental Cleanup.........................................4
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(p) Customer Deposits.............................................4
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(q) Miscellaneous.................................................4
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1.2 Dividend and Transfer of Assets......................................4
1.3 Contribution of Assets...............................................5
1.4 Retained Assets......................................................5
(a) Designated Assets.............................................5
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(b) Non-Assigned Contracts........................................5
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(c) Employee Plan Assets..........................................5
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(d) Corporate Records.............................................5
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(e) This Agreement................................................6
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(f) Third Party Actions...........................................6
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(g) Subsidiaries..................................................6
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(h) Cash and Cash Equivalents.....................................6
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(i) Discontinued Operations.......................................6
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(j) Miscellaneous.................................................6
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1.5 Assignability and Consents...........................................6
(a) Required Consents.............................................6
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(b) Nonassignable Items...........................................7
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ARTICLE II. LIABILITIES........................................................7
2.1 Assumption of Liabilities............................................7
(a) Balance Sheet.................................................7
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(b) Trade Payables................................................7
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(c) Contracts.....................................................8
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(d) Liabilities and Obligations...................................8
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(e) Litigation....................................................8
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(f) Environmental Liabilities.....................................8
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(g) Accounts Payable..............................................9
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(h) Accrued Payroll...............................................9
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(i) Vacation Liability............................................9
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(j) Customer Liabilities..........................................9
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(k) Taxes.........................................................9
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2.2 Retained Liabilities.................................................9
(a) Pre-Closing...................................................9
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(b) Liabilities Relating to the Transfer of Acquired Assets......10
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(c) Employee-Related Liabilities.................................10
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(d) Litigation...................................................10
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(e) Product, Environmental and Safety Liability..................10
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(f) Taxes........................................................11
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(g) Liabilities Relating to Retained Assets......................11
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ARTICLE III. TRANSFER AND EXCHANGE............................................11
3.1 Payment.............................................................11
3.2 Prorations..........................................................11
ARTICLE IV. CLOSING...........................................................12
4.1 General.............................................................12
4.2 Documents to be Delivered by Transferor.............................12
4.3 Documents to be Delivered by Transferee.............................13
4.4 Documents to be Delivered by Parent.................................14
4.5 Documents to be Delivered by Transferee and Transferor..............14
4.6 Post Closing........................................................15
ARTICLE V. REPRESENTATIONS AND WARRANTIES.....................................15
5.1 Representations and Warranties of Transferor........................15
(a) Organization and Standing; Power and Authority...............15
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(b) Conflicts; Defaults..........................................15
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(c) Acquired Assets; Title to the Acquired Assets................16
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(d) Contracts....................................................17
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(e) Environmental and Safety Compliance..........................17
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(f) Approvals....................................................19
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(g) Real Property................................................19
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(h) Lease Agreements.............................................20
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5.2 Representations and Warranties of Transferee........................20
(a) Organization and Standing; Corporate Power and Authority.....20
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(b) Conflicts; Defaults..........................................20
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5.3 Representations and Warranties of Parent............................20
(a) Organization and Standing; Power and Authority...............21
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(b) Conflicts; Defaults..........................................21
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(c) Dividend Assets; Title to the Dividend Assets................21
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(d) Approvals....................................................22
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ARTICLE VI. CONDITIONS TO CLOSING.............................................22
6.1 Conditions to Transferee's Obligations..............................22
(a) Representations and Warranties...............................22
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(b) Covenants....................................................22
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(c) Consents.....................................................22
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(d) No Proceeding or Litigation..................................22
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(e) Certificate of Transferor and Parent.........................23
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(f) Certificate; Documents.......................................23
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6.2 Conditions to Transferor's Obligations..............................23
(a) Representations and Warranties...............................23
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(b) Covenants....................................................23
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(c) Consents.....................................................23
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(d) No Proceeding or Litigation..................................23
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(e) Certificate of Transferee and Parent.........................23
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(f) Certificates; Documents......................................23
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6.3 Conditions to Parent's Obligations..................................24
(a) Representations and Warranties...............................24
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(b) Covenants....................................................24
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(c) Consents.....................................................24
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(d) No Proceeding or Litigation..................................24
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(e) Certificate of Transferee and Transferor.....................24
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(f) Certificates; Documents......................................24
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ARTICLE VII. COVENANTS OF TRANSFEROR..........................................25
7.1 Conduct of Business.................................................25
ARTICLE VIII. COVENANTS OF TRANSFEREE.........................................25
8.1 Maintenance of, and Access to, Records..............................25
8.2 Closing.............................................................25
ARTICLE IX. CERTAIN ADDITIONAL COVENANTS......................................25
9.1 Expenses; Transfer Taxes............................................25
9.2 Bulk Transfer Laws..................................................26
9.3 Regulatory Approvals................................................26
9.4 Employee Matters....................................................26
ARTICLE X. TERMINATION........................................................26
10.1 Termination.........................................................26
(a) Mutual Consent...............................................26
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(b) Court Order..................................................26
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(c) Transferee's Conditions......................................26
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(d) Transferor's Conditions......................................26
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(e) Parent's Conditions..........................................27
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10.2 Effect of Termination...............................................27
ARTICLE XI. INDEMNIFICATION...................................................27
11.1 Indemnification by Transferee.......................................27
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(a) General......................................................27
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(b) Environmental Indemnification................................27
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11.2 Indemnification by Transferor.......................................28
(a) General......................................................28
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(b) Environmental Indemnification................................28
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11.3 Notice of Claim; Right to Participate in and Defend Third
Party Claim.........................................................28
11.4 Time Limitations on Claims for Indemnification......................29
ARTICLE XII. MISCELLANEOUS....................................................29
12.1 Amendments.........................................................29
12.2 Entire Agreement...................................................30
12.3 Governing Law......................................................30
12.4 Notices............................................................30
12.5 Counterparts.......................................................31
12.6 Assignment.........................................................31
12.7 Waivers............................................................31
12.8 Third Parties......................................................31
12.9 Schedules, Addenda and Exhibits....................................31
12.10 Headings...........................................................31
12.11 Certain Definitions................................................31
12.12 Remedies Not Exclusive.............................................32
12.13 Gender and Number..................................................32
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ASSET TRANSFER AGREEMENT
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THIS ASSET TRANSFER AGREEMENT (this "Agreement") dated as of , 2000,
by and among Union Electric Company d/b/a AmerenUE, a Missouri corporation
("Transferor"), Central Illinois Public Service Company d/b/a AmerenCIPS, an
Illinois corporation ("Transferee"), and Ameren Corporation, a Missouri
corporation ("Parent").
W I T N E S S E T H:
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WHEREAS, Parent owns 100% of the common stock of each of Transferor
and Transferee; and
WHEREAS, Transferor is a public utility company as defined in Section
3-105 of the Illinois Public Utilities Act (220 ILCS 5/3-105) and is a public
utility as defined in Section 386.020 of the Missouri Public Service Commission
Law (ss.386.020 RSMo 1994) and presently operates as a vertically integrated
electric generation, transmission and distribution company and as a natural gas
distribution company in the States of Illinois and Missouri; and
WHEREAS, Transferor owns and operates electric transmission and
distribution facilities and natural gas distribution facilities located in the
State of Illinois, which Facilities (as hereinafter defined) are more fully
described in Sections 1.1(c) and 1.1(d) hereof, for use in its business of
transmitting and distributing electricity and gas (the "Business"); and
WHEREAS, Transferor desires to transfer to (1) Parent, by way of an in
kind dividend, a portion of, and (2) to Transferee, the remaining portion of,
substantially all of its assets, properties, rights and interests that are used
in or related to the Business that is conducted at the Facilities and located in
the State of Illinois; and
WHEREAS, Parent desires to contribute that portion of the Business and
Facilities received by it to Transferee and Transferee desires to accept from
Parent and acquire from Transferor, upon the terms and subject to the conditions
hereinafter set forth, in the aggregate substantially all of such assets,
properties, rights and interests of Transferor that are used in or related to
the Business that is conducted at the Facilities; and
WHEREAS, Transferee desires to execute and deliver to Transferor a
subordinated promissory note in exchange for that portion of the Facilities and
Business transferred directly to Transferee from Transferor.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained and other good and valuable consideration had
and received, Parent, Transferee and Transferor, on the basis of, and in
reliance upon, the representations, warranties, covenants, obligations and
agreements set forth in this Agreement, and upon the terms and subject to the
conditions contained herein, hereby agree as follows:
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ARTICLE I. TRANSFER OF ASSETS
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1.1 Identification of Assets. Immediately prior to the Closing (as
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defined in Section 4.1), Transferor shall identify in reasonable detail all of
the assets, properties, rights and interests owned, used, occupied or held by or
for the benefit of Transferor that are used in or related to the operation of
the Business at the Facilities, as the same are expected to exist as of the
Closing Date (as defined in Section 4.1) and as shall be more fully described in
a schedule to be delivered by Transferor to Parent and Transferee or its
authorized representatives at the Closing (the "Schedule"), which Schedule shall
specifically enumerate such assets, properties and rights, including, without
limitation, the following:
(a) Inventory. All inventory, including inventories of products,
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work-in-process, finished goods, raw materials, natural gas storage, fuel stock,
fuel supplies and parts, which is located at the Facilities and used in the
Business (collectively, "Inventory");
(b) Fixed Assets. All tangible personal property, plant and equipment
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including, without limitation, buildings, structures, substations, transmission
lines, distribution facilities, pipelines, fixtures, machinery and equipment,
maintenance machinery and equipment, vehicles and rolling stock, office
furniture and office equipment, other furnishings, leasehold improvements and
construction-in-process, which is located at the Facilities and used in the
Business, including without limitation plant materials and operating supplies
located at the Alton storeroom and truck stock recorded in Account (as defined
in Section 12.11) 154 (collectively, the "Fixed Assets");
(c) Real Property. (i) The real property rights and interests owned
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by Transferor and used in or relating to the operation of the Business in the
State of Illinois, (ii) any easements, rights of way or other interests in real
property necessary for the operation of the Business in Illinois, (iii) all
buildings, structures, and leasehold improvements located at the Facilities and
all appurtenances relating thereto, and (iv) all fixtures, machinery, apparatus
or equipment affixed to said Facilities, including, without limitation, all of
the electrical, heating, plumbing, air conditioning, air compression and all
other systems located on said premises, and all other structures, fences and
improvements (collectively, the "Real Property");
(d) Leased Property. All rights and interests under the lease or
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license agreements (the "Lease Agreements") that relate to the Business that is
conducted in the State of Illinois (the premises subject to the Lease Agreements
being hereinafter collectively referred to as the "Leased Property" and the
premises that comprise the Leased Property and the Real Property being
hereinafter collectively referred to as the "Facilities" or the "Property";
provided, however, that in no event shall "Facilities" or "Property" be deemed
to include any rights or interests outside the State of Illinois);
(e) Intellectual Property Rights. Any and all intellectual property
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owned or possessed by Transferor and relating to the Business that is conducted
at the Facilities including without limitation, copyrights, trade secrets,
trademarks and patents;
(f) Business Records. All books and records that relate to the
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Business that is conducted at the Facilities, including, without limitation, all
files, invoices, forms, accounts, correspondence, production records, technical,
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accounting, manufacturing and procedural manuals, employment records, studies,
reports or summaries relating to any Environmental Requirements (as defined in
Section 5.1(e)), and other books and records relating to the operation of any of
the Acquired Assets (as defined in this Section 1.1) or other assets or
properties associated with the Business that is conducted at the Facilities, and
any confidential information which has been reduced to writing or other tangible
medium relating to or arising out of the Business that is conducted at the
Facilities (collectively, the "Business Records");
(g) Contracts. Subject to Sections 1.4(b) and 1.5, all rights,
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benefits and interests of Transferor in and to all licenses, leases, contracts,
agreements, commitments and undertakings relating to the Business that is
conducted at the Facilities (collectively, the "Contracts");
(h) Permits. All licenses, permits, approvals, variances, waivers or
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consents (collectively, the "Permits"), to the extent transferable, issued by
any foreign, United States, state or local governmental entity or municipality
or subdivision thereof or any authority, department, commission, board, bureau,
agency, court or instrumentality (collectively, "Governmental Authorities") and
used in or necessary to the operation of the Business that is conducted at the
Facilities;
(i) Insurance. All rights, claims and benefits of Transferor in, to
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or under all insurance policies maintained by Transferor for the Business that
is conducted at the Facilities or for the Acquired Assets;
(j) Rolling Stock and Vehicles. All vehicles and rolling stock used
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in the Business that is conduced at the Facilities and that is included as part
of Fixed Assets; and
(k) Petty Cash. All petty cash maintained at the East St. Louis,
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Illinois office of Transferor (the "Petty Cash").
(l) Accounts Receivable. All accounts receivable of Illinois electric
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and gas customers recorded in Account 142 (the "Accounts Receivable").
(m) Uncollectible Accounts. The provision for uncollectible accounts
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associated with the Accounts Receivable.
(n) Accrued Revenues. Accrued Illinois electric and gas revenues for
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services not billed at the time of the transfer contemplated hereby, which are
recorded in Account 173.
(o) Environmental Cleanup. Amounts collected for environmental
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cleanup that are recorded in Account 186.
(p) Customer Deposits. Customer deposits related to Illinois electric
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customers that are recorded in Account 235.
(q) Miscellaneous. Except for the Retained Assets (as defined in
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Section 1.4), all other assets, properties, rights and interests of Transferor
otherwise employed in or related to the operation of the Business at the
Facilities, of every kind, nature and description, whether tangible or
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intangible, real, personal or mixed, located in the State of Illinois, all of
which are to be transferred, conveyed, assigned, contributed and delivered to
Transferee at the Closing pursuant to this Agreement.
All of the assets, properties, rights and interests owned, used, occupied or
held by or for the benefit of the Transferor in the operation of the Business at
the Facilities, which are to be dividended, sold, transferred, conveyed,
assigned and delivered by Transferor at the Closing as contemplated herein,
including without limitation, those described in clauses (a) through (q) above,
but excluding the Retained Assets, are referred to herein collectively as the
"Acquired Assets."
1.2 Dividend and Transfer of Assets. At the Closing, Transferor shall:
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(a) transfer, convey, assign and deliver and pay to Parent by way of
an in kind dividend on its common stock, declared pursuant to a duly adopted
resolution of its Board of Directors, of that portion of the Acquired Assets
designated on the Schedule as subject to such dividend (the "Dividend Assets");
and
(b) transfer, convey, assign, contribute and deliver to Transferee
that portion of the Acquired Assets designated on the Schedule as subject to
such transfer (the "Transferred Assets").
The Dividend Assets and the Transferred Assets shall, in the aggregate, consist
of all the Acquired Assets. The parties agree that the Dividend Assets will
constitute a percentage, based on book value, of all the Acquired Assets and the
Transferred Assets will constitute all of the remainder of the Acquired Assets.
The percentage of Dividend Assets will be determined by Parent immediately prior
to the Closing.
1.3 Contribution of Assets. At the Closing, immediately after receipt
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of the Dividend Assets pursuant to Transferor's dividend referred to in Section
1.2 hereof, Parent shall transfer, convey, assign, and deliver to Transferee by
way of a contribution to capital all of the Dividend Assets.
1.4 Retained Assets. Anything in Sections 1.1 through 1.3 to the
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contrary notwithstanding, the following assets (collectively, the "Retained
Assets") shall be retained by Transferor, and neither Parent nor Transferee
shall in any way be construed to have acquired (or to be obligated to acquire)
any interest whatsoever in any of the following, any of which may be more
particularly described on the Schedule:
(a) Designated Assets. Any of the assets, properties, rights and/or
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interests, owned, used, occupied or held by or for the benefit of Transferor in
the operation of the Business (other than the operation of the Business at the
Facilities); provided, however, that anything in this Agreement to the contrary
notwithstanding, the Retained Assets shall include the Venice electric
generating plant and associated electric transmission facilities;
(b) Non-Assigned Contracts. All of the rights and interests, and all
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of the liabilities and obligations, of Transferor in, under or pursuant to any
license, lease, contract, agreement, commitment or undertaking entered into in
connection with, or otherwise relating to, the operation of the Business (other
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than the operation of the Business at the Facilities) (collectively, the
"Non-Assigned Contracts");
(c) Employee Plan Assets. The rights of Transferor or Parent under,
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and any funds and property held in trust or any other funding vehicle pursuant
to, any "employee benefit plan" (within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended) or any other bonus,
stock option, stock appreciation, stock purchase, severance, termination,
lay-off, leave of absence, disability, workers' compensation, pension, profit
sharing, retirement, vacation or holiday pay, insurance, deferred compensation
or other employee or welfare benefit plan, agreement or arrangement of
Transferor or Parent applicable to past, present or future employees employed in
connection with the Business (collectively, "Employee Plans");
(d) Corporate Records. Transferor's minute books, stock books, stock
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ledger and corporate seal and all other books and records relating to the
Business of the Transferor;
(e) This Agreement. All of Transferor's rights, claims and interests
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under this Agreement and any agreement executed in connection herewith;
(f) Third Party Actions. All of Transferor's rights, claims or causes
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of action against third parties relating to the assets, properties, business or
operations of the Business that is conducted at the Facilities to the extent
such rights, claims or causes of action arise in connection with the discharge
by Transferor of the Retained Liabilities (as defined in Section 2.2);
(g) Subsidiaries. The capital stock of any of Transferor's direct or
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indirect, wholly or partially owned, subsidiaries and their respective assets,
properties and businesses;
(h) Cash and Cash Equivalents. Except for the Petty Cash, any cash or
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cash equivalent of, owned, or held by, Transferor;
(i) Discontinued Operations. All assets, properties, rights and
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interests in, under or to agreements, instruments or contracts relating to
businesses, operations or assets that immediately prior to the Closing have been
(i) closed, wound up or otherwise terminated or (ii) ceased to be held or used
in connection with Transferor's businesses or operations, including the Business
that is conducted at the Facilities; and
(j) Miscellaneous. Those other certain assets, properties, rights and
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interests described on the Schedule.
1.5 Assignability and Consents.
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(a) Required Consents. Transferor shall deliver to Parent and
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Transferee or their authorized representatives, at or prior to the Closing, a
list of (i) Acquired Assets, including Contracts, Permits and Lease Agreements
(but excluding leases of office equipment involving future payments of less than
$500,000 in the aggregate), that are non-assignable or non-transferable or
cannot be subleased to Transferee without the consent of some other individual,
partnership, corporation, association, joint stock company, trust, joint
venture, limited liability company or Governmental Authority (collectively,
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"Person") and (ii) approvals of Governmental Authorities, including the Illinois
Commerce Commission (the "ICC"), the Missouri Public Service Commission, the
Federal Energy Regulatory Commission, the Securities and Exchange Commission and
the Federal Communications Commission that are required for the consummation of
the transactions contemplated by this Agreement. Transferor has commenced and
shall continue to take, or cause to be taken by others, all necessary actions
required to obtain or satisfy, at the earliest practicable date, all consents,
novations, approvals, authorizations, requirements (including filing and
registration requirements), waivers and agreements ("Consents") from any Persons
necessary to authorize, approve or permit the full and complete conveyance,
assignment, sublease or transfer of the Acquired Assets, and to consummate and
make effective the transactions contemplated by this Agreement and to continue
such efforts as may be required after the Closing Date to facilitate the full
and expeditious transfer of legal title, or the sublease, as the case may be, of
the Acquired Assets.
(b) Nonassignable Items. Anything in this Agreement to the contrary
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notwithstanding, this Agreement shall not constitute an Agreement to sell,
convey, assign, sublease or transfer any Acquired Assets, including Contracts,
Permits and Lease Agreements, if an attempted conveyance, assignment, sublease
or transfer thereof, without the Consent of another party thereto or a
Governmental Authority would constitute a breach of, or in any way affect the
rights of Transferor or Transferee with respect to such Acquired Asset
("Nonassignable Items"). Transferor shall use its best efforts and Transferee
shall cooperate in all reasonable respects with Transferor to obtain and satisfy
all Consents and to resolve all impracticalities of conveyance, assignment,
sublease or transfer necessary to convey to Transferee all Nonassignable Items.
ARTICLE II. LIABILITIES
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2.1 Assumption of Liabilities. On the terms and subject to the
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conditions set forth in this Agreement, Transferee shall assume, at the Closing
and effective as of the Closing Date, and shall thereafter pay, perform and
discharge as and when due the following, and only the following, liabilities and
obligations of Transferor (collectively, the "Assumed Liabilities"):
(a) Balance Sheet. All liabilities and obligations of Transferor as
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set forth on the unaudited balance sheet (the "Balance Sheet") relating to the
Business that is conducted at the Facilities prepared by Transferor as of the
Closing or other appropriate date determined by the parties (the "Balance Sheet
Date"), including without limitation any indebtedness to be assumed by
Transferee (the "Assumed Indebtedness"), less payments thereon or discharges
thereof prior to the Closing Date;
(b) Trade Payables. All liabilities and obligations of Transferor
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relating to the Business that is conducted at the Facilities that constitute
trade payables due to suppliers as payment for Inventory included in the
Acquired Assets and incurred by Transferor in the ordinary and normal course of
business at the Balance Sheet Date (in transactions in the ordinary and normal
course) and consistent with past practice and the representations, warranties,
covenants, obligations and agreements set forth in this Agreement;
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(c) Contracts. All liabilities and obligations of Transferor arising
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under the terms of the Contracts other than contracts that constitute
Non-Assigned Contracts but only to the extent such liabilities and obligations
arise or accrue after the Closing Date in the ordinary and normal course and
consistent with the representations, warranties, covenants, obligations and
agreements set forth in this Agreement; provided, however, that Transferee shall
not assume or be responsible for any such liabilities or obligations which arise
from breaches thereof or defaults thereunder by Transferor, all of which
liabilities and obligations shall constitute Retained Liabilities;
(d) Liabilities and Obligations. All liabilities and obligations of
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Transferor relating to environmental permits, variances or orders issued by
local, state or federal governmental authorities that relate to the Business
that is conducted at the Facilities;
(e) Litigation. All liabilities and obligations relating to any
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litigation, action, suit, claim, notice of violation, investigation, inquiry or
proceeding (collectively "Claims") instituted hereafter, based in whole or in
part on events or conditions occurring or existing in connection with, or
arising out of, or otherwise relating to, the Business that is conducted at the
Facilities as operated by Transferee or any of its Affiliates (as defined in
Section 12.11) (or any of their respective predecessors-in-interest) after the
date hereof, or the ownership, possession, use, operation, sale or other
disposition after the Closing Date of any of the Acquired Assets (or any other
assets, properties, rights or interests associated, at any time after the
Closing Date, with the Business that is conducted at the Facilities); and
(f) Environmental Liabilities. All liabilities and obligations
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relating to the Business or the Acquired Assets (or any other assets,
properties, rights or interests associated, at any time after the Closing Date,
with the Business or the Acquired Assets), based in whole or in part on events
or conditions occurring or existing after the Closing Date and connected with,
arising out of or relating to Hazardous Materials, Environmental Requirements or
Environmental Damages (all as defined in Section 5.1(e)), (the "Assumed
Environmental Liabilities"); provided, however, that the Assumed Environmental
Liabilities shall also include (i) the environmental cleanup liability at the
Alton Town Gas Site that is recorded in Account 253 and (ii) any liabilities and
obligations relating to the Business or the Acquired Assets (or any other
assets, properties, rights or interests associated, at any time prior to the
Closing Date, with the Business or the Acquired Assets), based in whole or in
part on events or conditions occurring or existing prior to the Closing Date and
connected with, arising out of or relating to Hazardous Materials, Environmental
Requirements or Environmental Damages, if and to the extent that such
liabilities and obligations are covered by Transferor's existing ICC-approved
electric and gas environmental adjustment clause riders in effect immediately
prior to the Closing.
(g) Accounts Payable. Accounts payable for the amount of natural gas
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purchased for resale but not yet paid that are recorded in Account 232.
(h) Accrued Payroll. Accrued payroll payables that are recorded in
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Account 232.
(i) Vacation Liability. Accrued vacation liabilities for electric and
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gas employees that are recorded in Account 242.
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(j) Customer Liabilities. All liabilities and obligations relating to
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the Business or the Acquired Assets (or any other assets, properties, rights or
interests associated, at any time prior to or following the Closing Date, with
the Business or the Acquired Assets), based in whole or in part on events or
conditions occurring or existing prior to or following the Closing Date and
connected with, arising out of or relating to any disputes for services rendered
or goods manufactured that are instituted or maintained by or in the right of
any customer, including without limitation, product warranty Claims and product
liability Claims, and Claims for refunds, returns, personal injury and property
damages.
(k) Taxes. All liabilities and obligations relating to the Business
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or the Acquired Assets (or any other assets, properties, rights or interests
associated, at any time prior to or following the Closing Date, with the
Business or the Acquired Assets), whether due or becoming due and whether based
on or arising out of events prior or subsequent to the Closing Date, relating to
the payment of franchise fees, gross receipts or utility Taxes (as hereinafter
defined) of any kind (the "Assumed Tax Liabilities").
2.2 Retained Liabilities. Except to the extent transferred to
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Transferee as an Assumed Liability pursuant to Section 2.1, including without
limitation with respect to Assumed Environmental Liabilities, Transferor shall
retain, and Transferee shall not assume, or be responsible for or liable with
respect to, any liabilities or obligations of, Transferor, or otherwise relating
to the Business, whether or not of, associated with, or arising from, any of the
Acquired Assets, and whether fixed, contingent or otherwise, known or unknown
(collectively referred to hereinafter as the "Retained Liabilities"), including,
without limitation, the following:
(a) Pre-Closing. All liabilities and obligations relating to, based
-----------
in whole or in part on events or conditions occurring or existing in connection
with, or arising out of, the Business as operated prior to the Closing Date, or
the ownership, possession, use, operation or other disposition prior to the
Closing Date of any of the Acquired Assets (or any other assets, properties,
rights or interests associated, at any time prior to the Closing Date, with the
Business);
(b) Liabilities Relating to the Transfer of Acquired Assets. All
-------------------------------------------------------
liabilities and obligations of Transferor or any of its Affiliates except
Transferee, or their respective directors, officers, shareholders or agents,
arising out of, or relating to, this Agreement or the transactions contemplated
hereby, whether incurred prior to, at, or subsequent to the Closing Date;
(c) Employee-Related Liabilities. All liabilities and obligations to
----------------------------
any persons at any time employed by Transferor or its Affiliates except
Transferee or their respective predecessors-in-interest in the Business or
otherwise, at any time or to any such person's spouses, children, other
dependents or beneficiaries, with respect to incidents, events, exposures or
circumstances occurring at any time during the period or periods of any such
persons' employment with Transferor or its Affiliates except Transferee or their
respective predecessors-in-interest, whenever such claims mature or are
asserted, including, without limitation, all liabilities and obligations arising
(i) under any Employee Plans, (ii) under any employment, wage and hour
restriction, equal opportunity, discrimination, plant closing or immigration and
naturalization Laws (as hereinafter defined), (iii) under any collective
bargaining Laws, agreements or arrangements, or (iv) in connection with any
workers' compensation or any other employee health, accident, disability or
8
<PAGE>
safety claims. For purposes of this Agreement, the term "Laws" shall mean any
statutes, laws, rules, regulations, orders, ordinances, codes and decrees of
Governmental Authorities;
(d) Litigation. All liabilities and obligations relating to any
----------
Claims pending on the date hereof, or instituted hereafter, based in whole or in
part on events or conditions occurring or existing in connection with, or
arising out of, or otherwise relating to, the Business as operated by Transferor
or any of its Affiliates (or any of their respective predecessors-in-interest)
except Transferee, or the ownership, possession, use, operation, sale or other
disposition prior to the Closing Date of any of the Acquired Assets (or any
other assets, properties, rights or interests associated, at any time prior to
the Closing Date, with the Business);
(e) Product, Environmental and Safety Liability. All liabilities and
-------------------------------------------
obligations relating to the Business or the Acquired Assets (or any other
assets, properties, rights or interests associated, at any time prior to the
Closing Date, with the Business or the Acquired Assets), based in whole or in
part on events or conditions occurring or existing prior to the Closing Date and
connected with, arising out of or relating to (i) any dispute for services
rendered or goods manufactured, including, without limitation, product warranty
Claims and product liability Claims, and Claims for refunds, returns, personal
injury and property damage, (ii) Hazardous Materials, Environmental Requirements
or Environmental Damages other than liabilities or obligations that constitute
Assumed Environmental Liabilities (the "Non-Assumed Environmental Liabilities"),
(iii) Claims relating to employee health and safety, including Claims for
injury, sickness, disease or death of any Person, or (iv) compliance with any
Laws relating to any of the foregoing;
(f) Taxes. Except for the Assumed Tax Liabilities, all liabilities
-----
and obligations of Transferor or any of its Affiliates (or any of their
respective predecessors-in-interest) for any Taxes due or becoming due by reason
of (i) the conduct of the Business, or (ii) the ownership, possession, use,
operation, purchase, acquisition, sale or disposition, of any of the Acquired
Assets, including, without limitation, (i) Taxes attributable to the sale of
electricity and employee withholding tax obligations; (ii) Taxes imposed on, or
accruing as a result of the transfer of the Acquired Assets; and (iii) Taxes
attributable to, or resulting from, recapture of depreciation, other tax benefit
items, or otherwise arising from the transactions contemplated by this
Agreement. For purposes of this Agreement, the term "Tax" or "Taxes" means all
net income, gross income, gross receipts, sales, use, ad valorem, personal
property, real property, transfer, franchise, profits, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property or
windfall profits, taxes, customs duties or other taxes, fees, assessments or
charges of any kind whatsoever, including without limitation, any assessment
which Transferor may have had the option to pay in installment payments over a
period of time which extends beyond the Closing Date, together with any interest
and any penalties, additions to tax or additional amounts imposed by any taxing
authority (domestic or foreign); and
(g) Liabilities Relating to Retained Assets. All liabilities and
---------------------------------------
obligations relating to, based in whole or in part on events or conditions
occurring or existing in connection with, or arising out of, any and all assets,
properties, rights and interests which are not being acquired by Transferee
hereunder, including, without limitation, the Retained Assets.
9
<PAGE>
ARTICLE III. TRANSFER AND EXCHANGE
----------------------------------
3.1 Payment. (a) In full consideration for the transfer of the
-------
Transferred Assets, but subject to the adjustment, if any, required by Section
3.2, at the Closing, Transferee shall deliver to Transferor a subordinated
promissory note in the form of Exhibit 3.1 hereto (the "Transferee Note") in an
amount equal to the book value of the Transferred Assets determined as provided
herein.
(b) No amount shall be paid to Parent in connection with the
contribution by Parent of the Dividend Assets.
3.2 Prorations. (a) Transferor and Transferee shall prorate, as of the
----------
Closing Date, all real estate taxes payable with respect to the Real Property
(but not including any current assessments against the Real Property which
Transferor is required to have paid in full prior to the Closing Date as
provided under Section 2.2(f) herein).
(b) Transferee and Transferor shall use their reasonable best efforts
to calculate all prorations. The credit that Transferee is entitled to receive
from Transferor for the unpaid portion (as of the Closing Date) of the 1999 real
estate taxes shall be referred to herein as the "1999 Real Estate Tax Credit,"
and the credit that Transferee is entitled to receive from Transferor for the
2000 real estate taxes owed for the period during which Transferor owned the
Real Property during the year 2000 shall be referred to herein as the "2000 Real
Estate Tax Credit."
ARTICLE IV. CLOSING
-------------------
4.1 General. As used in this Agreement, the "Closing" shall mean the
-------
time at which Transferor consummates the assignment, transfer and delivery of
the Acquired Assets to Transferee and Parent and Parent consummates the
assignment, transfer and delivery of the Dividend Assets to Transferee as
provided herein by the execution and delivery by Transferor and Parent of the
documents and instruments referred to in Sections 4.2 and 4.4 against delivery
by Transferee of the documents and payments provided in Sections 3.1 and 4.3,
and delivery by Transferor, Transferee and the other Persons referred to herein
of the additional documents referred to in Section 4.5. In the absence of a
prior termination of this Agreement by one of the parties in accordance with
Article X, the Closing shall take place at the offices of the Parent, One Ameren
Plaza, 1901 Chouteau Avenue, St. Louis, Missouri at 8:00 a.m. on , 2000,
or at such other time and place and on such other day as shall be mutually
agreed upon in writing by the parties hereto (the "Closing Date"). Legal title,
equitable title and risk of loss with respect to the Acquired Assets shall not
pass to Transferee until the Acquired Assets are transferred at the Closing,
which transfer, once it has occurred, shall be deemed effective for tax,
accounting and other computational purposes as of the Closing Date.
4.2 Documents to be Delivered by Transferor. At the Closing,
---------------------------------------
Transferor shall deliver to Transferee and Parent (unless otherwise agreed to by
the parties):
(a) Copies of (i) the resolutions of the Boards of Directors of
Transferor authorizing and approving this Agreement and all other transactions
and agreements contemplated hereby, (ii) Transferor's Articles of Incorporation,
and (iii) Transferor's Bylaws, all certified by the respective corporate
10
<PAGE>
Secretaries or Assistant Secretaries of Transferor to be true, correct, complete
and in full force and effect and unmodified as of the Closing Date;
(b) Instruments transferring the Transferred Assets to Transferee and
the Dividend Assets to Parent, in each case, free and clear of any and all
liens, equities, Claims, prior assignments, mortgages, charges, security
interests, pledges, conditional sales contracts, collateral security
arrangements and other title retention arrangements, restrictions (including, in
the case of real property, rights of way, use restrictions, and other variances,
reservations or limitations of any nature) or encumbrances whatsoever
(collectively, "Liens");
(c) Copies of all Consents to the transfer, assignment or sublease to
Transferee or Parent of each Acquired Asset that requires such Consent,
including, without limitation, orders or approvals of the regulatory bodies
referred to in Sections 1.5, 5.1(f) and 9.3 hereof;
(d) The Officer's Certificate (as defined in Section 6.1(e)) required
by Sections 6.1(e) and 6.3(e);
(e) Special Warranty Deeds (the "Deeds") in recordable form and in
form and substance satisfactory to Parent and Transferee conveying the Real
Property to Transferee or Parent as the case may be, free and clear of all Liens
whatsoever except for Permitted Liens (as defined in Section 5.1(c));
(f) Releases, including, without limitation, termination statements
under the Uniform Commercial Code (the "UCC") of any financing statements filed
against any Acquired Assets, evidencing discharge, removal and termination of
all Liens to which the Acquired Assets are subject (other than Liens relating to
Assumed Indebtedness) in connection with any indebtedness described to be
discharged by Closing, which releases shall be effective at or prior to the
Closing;
(g) A Non-Foreign Person Affidavit as required by Section 1445 of the
Internal Revenue Code of 1986, as amended (a "FIRPTA Affidavit"); and
(h) Such other deeds, endorsements, assignments, affidavits and other
good and sufficient instruments of assignment, conveyance and transfer in form
and substance satisfactory to Transferee, as are required to effectively vest in
Transferee or Parent, as the case may be, good and marketable title in and to
all of the Acquired Assets, free and clear of any and all Liens other than
Permitted Liens.
4.3 Documents to be Delivered by Transferee. At the Closing,
---------------------------------------
Transferee shall deliver to Transferor and Parent, as applicable (unless
otherwise agreed to by the parties):
(a) A copy of (i) the resolutions of the Board of Directors of
Transferee authorizing and approving this Agreement and all other transactions
and agreements contemplated hereby, (ii) Transferee's Articles of Incorporation,
and (iii) Transferee's Bylaws, all certified by the Secretary or an Assistant
Secretary of Transferee to be true, correct, complete and in full force and
effect and unmodified as of the Closing Date;
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(b) The Officer's Certificate required by Sections 6.2(e) and 6.3(e);
(c) The Transferee Note to Transferor, duly executed on behalf of
Transferee, and in substantially the form attached hereto as Exhibit 3.1; and
(d) An instrument of assumption of the Assumed Liabilities.
4.4 Documents to be Delivered by Parent. At the Closing, Parent shall
-----------------------------------
deliver to Transferee and Transferor, as applicable (unless otherwise agreed to
by the parties):
(a) Copies of (i) the resolutions of the Board of Directors of Parent
authorizing and approving this Agreement and all other transactions and
agreements contemplated hereby, (ii) Parent's Articles of Incorporation, and
(iii) Parent's Bylaws, all certified by the respective corporate Secretaries or
Assistant Secretaries of Parent to be true, correct, complete and in full force
and effect and unmodified as of the Closing Date;
(b) Instruments transferring the Dividend Assets to Transferee free
and clear of any and all Liens;
(c) Copies of all Consents to the transfer, assignment or sublease to
Transferee of each Dividend Asset that requires such Consent, including, without
limitation, orders or approvals of the regulatory bodies referred to in Sections
1.5, 5.1(f) and 9.3 hereof;
(d) The Officer's Certificate required by Sections 6.1(e) and 6.2(e);
(e) Deeds in recordable form and in form and substance satisfactory
to Transferee conveying the Real Property to Transferee, free and clear of all
Liens whatsoever except for Permitted Liens;
(f) Releases, including, without limitation, termination statements
under the UCC of any financing statements filed against any Dividend Assets,
evidencing discharge, removal and termination of all Liens to which the Dividend
Assets are subject (other than Liens relating to Assumed Indebtedness) in
connection with any indebtedness described to be discharged by Closing, which
releases shall be effective at or prior to the Closing;
(g) FIRPTA Affidavit; and
(h) Such other deeds, endorsements, assignments, affidavits, and
other good and sufficient instruments of assignment, conveyance and transfer in
form and substance satisfactory to Transferee, as are required to effectively
vest in Transferee good and marketable title in and to all of the Dividend
Assets, free and clear of any and all Liens other than Permitted Liens.
12
<PAGE>
4.5 Documents to be Delivered by Transferee and Transferor. At the
------------------------------------------------------
Closing, Transferee and Transferor shall execute and deliver:
(a) Easement Agreements from Transferee to Transferor for each Real
Property conveyed by Transferor to Transferee in a form and substance
satisfactory to Transferor; and
(b) An assignment of all of Transferor's right, title and interest to
the Leased Property and assumption of all obligations relating to the same free
and clear of all Liens whatsoever except for the Permitted Liens and otherwise
in form and substance satisfactory to Transferor and Transferee.
4.6 Post Closing. (a) Within 60 days after the Closing Date,
------------
Transferor shall deliver to Transferee the Balance Sheet as of the Balance Sheet
Date referred to in Section 2.1(a);
(b) Transferee shall calculate the 1999 Real Estate Tax Credit and
the 2000 Real Estate Credit promptly after the relevant tax bills have been
received and shall deliver such calculation to Transferor. Transferee shall be
entitled to deduct an amount equal to the 1999 Real Estate Tax Credit and 2000
Real Estate Tax Credit from amounts owed to Transferor under the Transferee
Note. Transferor will, at the request of Transferee, give Transferee a receipt
evidencing payment on the Transferee Note equal to such credits; and
(c) Promptly upon delivery of the Balance Sheet referred to in
Section 4.6(a) the principal amount of and amortization schedule of the
Transferee Note shall be adjusted, to the extent necessary, to reflect the
actual net depreciated book value of the Transferred Assets as of the Balance
Sheet Date. The Transferee shall execute and deliver a revised Transferee Note
as may be necessary to reflect any such change.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
-----------------------------------------
5.1 Representations and Warranties of Transferor. Subject only to
--------------------------------------------
those exceptions and qualifications listed and described (including an
identification by section reference to the representations and warranties to
which such exceptions and qualifications relate) on the Schedule, Transferor
hereby represents and warrants to Transferee (it being understood that for
purposes of this Article V, the portion of the Acquired Assets comprising the
Dividend Assets will first be dividended to Parent and then contributed to
Transferee) that:
(a) Organization and Standing; Power and Authority. Transferor is a
----------------------------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Missouri, and has full corporate power and authority to operate
the Business, to own or lease the Acquired Assets, to carry on its Business as
now being conducted, and to enter into and perform this Agreement and the
transactions and other agreements and instruments contemplated by this
Agreement. This Agreement and all other agreements and instruments executed and
delivered or to be executed and delivered by Transferor in connection herewith
(collectively, the "Transaction Documents") have been, or upon execution thereof
will be, duly executed and delivered by Transferor, as the case may be. This
Agreement and the transactions and other agreements and instruments contemplated
hereby have been duly approved by the Board of Directors of Transferor, and
13
<PAGE>
constitute the valid and binding obligations of Transferor, enforceable in
accordance with their respective terms.
(b) Conflicts; Defaults. Neither the execution and delivery of this
-------------------
Agreement and the other agreements and instruments executed or to be executed in
connection herewith by Transferor, nor the performance by Transferor of the
transactions contemplated hereby or thereby, will (i) violate, conflict with, or
constitute a default under, any of the terms of Transferor's Articles of
Incorporation or By-Laws, or any provisions of, or result in the acceleration of
any obligation under, any contract, sales commitment, license, purchase order,
security agreement, mortgage, note, deed, lien, lease, agreement or instrument,
including, without limitation, the Contracts, or any order, judgment or decree,
relating to the Business or the Acquired Assets, or by which Transferor or the
Acquired Assets are bound, (ii) result in the creation or imposition of any
Liens or Claims in favor of any third Person or entity upon any of the Acquired
Assets, (iii) violate any Law, statute, judgment, decree, order, rule or
regulation of any Governmental Authority, (iv) constitute an event which, after
notice or lapse of time or both, would result in such violation, conflict,
default, acceleration, or creation or imposition of Liens or Claims, (v)
constitute an event which, after notice or lapse of time or otherwise would
create, or cause to be exercisable or enforceable, any option, agreement or
right of any kind to purchase any of the Acquired Assets. Except as otherwise
provided herein or in the Schedule, no consent, novation, approval, filing or
authorization will be required to be obtained or satisfied for the continued
performance by Transferee following the Closing of any contract, agreement,
commitment or undertaking included in the Acquired Assets. Transferor is not in
violation of or in default under its Articles of Incorporation or Bylaws, or any
provision of any contract, sales commitment, license, purchase order, security
agreement, mortgage, note, deed, lien, lease, agreement or instrument, including
without limitation, the Contracts, or any order, judgment or decree, relating to
the Business or the Acquired Assets, or by which Transferor or the Acquired
Assets is bound, or in the payment of any of Transferor's monetary obligations
or debts relating to the Business, and there exists no condition or event which,
after notice or lapse of time or both, would result in any such violation or
default.
(c) Acquired Assets; Title to the Acquired Assets. Except for the
---------------------------------------------
Retained Assets, the Acquired Assets are the only assets, properties, rights and
interests used by Transferor in connection with the Business that is conducted
at the Facilities. The Acquired Assets to be conveyed to Transferee under this
Agreement constitute all of the assets, properties, rights and interests
necessary to conduct the Business at the Facilities in substantially the same
manner as conducted by Transferor prior to the date of this Agreement.
Transferor has good, marketable and exclusive title to, and the valid and
enforceable power and unqualified right to use and transfer to Transferee, each
of the Acquired Assets, and the Acquired Assets are free and clear of all Liens
and Claims of any kind or nature whatsoever, except for Permitted Liens. The
consummation of the transactions contemplated by this Agreement (including,
without limitation, the transfer or assignment of the Acquired Assets, and all
rights and interests therein, to Transferee as contemplated herein) will not
adversely affect such title or rights, or any terms of the applicable agreements
(whether written or oral) evidencing, creating or granting such title or rights.
None of the Acquired Assets are subject to, or held under, any lease, mortgage,
security agreement, conditional sales contract or other title retention
agreement, or are other than in the sole possession and under the sole control
of Transferor except as otherwise provided herein. Transferor has the right
under valid and existing leases to occupy, use or control all properties and
14
<PAGE>
assets leased by it and included in the Acquired Assets. The delivery to
Transferee of the instruments of transfer of ownership contemplated by this
Agreement will vest good, marketable and exclusive title (as to all Acquired
Assets owned by Transferor) or full right to possess and use (as to all Acquired
Assets not owned by Transferor) to the Acquired Assets in Transferee, free and
clear of all Liens and Claims of any kind or nature whatsoever, except for (i)
current real estate Taxes or governmental charges or levies which are a Lien but
not yet due and payable, (ii) Liens disclosed as securing specified liabilities
on the Balance Sheet with respect to which no default exists, (iii) Liens
otherwise disclosed herein or in the Schedule and (iv) minor imperfections of
title, if any, none of which are substantial in amount, or materially detract
from the value or impair the use of the property subject thereto or the
operation of the Business at the Facilities and which have arisen only in the
ordinary and normal course of business consistent with past practice (the Liens
described in clauses (i), (ii), (iii) and (iv) being collectively referred to
herein as "Permitted Liens").
(d) Contracts. Transferor has delivered to Transferee or its
---------
authorized representatives a complete list or description of each material
Contract.
(e) Environmental and Safety Compliance.
-----------------------------------
(i) General. Transferee agrees that, except as expressly
-------
contained in this Agreement, no representations by or on behalf of
Transferor have been made as to the condition of the Property and
Fixed Assets, any restrictions related to the development of the
Property and Fixed Assets, the applicability of any governmental
requirements pertaining to the Property and Fixed Assets, or the
suitability of the Property and Fixed Assets for any purpose
whatsoever. Transferor agrees to assign, transfer or otherwise convey
all environmental permits and licenses to Transferee and to take all
necessary steps with the appropriate governmental authorities to
effectuate such transfers. Transferor has delivered to Transferee list
of all applicable permits that are used in the operation of the
Business at the Facilities.
(ii) Definitions.
(A) For purposes of this Agreement, the term "Hazardous Material"
means any substance:
(1) the presence of which requires investigation or remediation
under any federal, state or local statute, regulation,
ordinance, order, action, policy or common law; or
(2) which is or has been identified as a potential "hazardous
waste," "hazardous substance," pollutant or contaminant
under any federal, applicable state or local statute,
regulation, rule or ordinance or amendments thereto
including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42
U.S.C.ss.ss.9601 et seq.) and/or the Resource Conservation
and Recovery Act (42 U.S.C. ss.ss.6901 et seq.); or
15
<PAGE>
(3) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, reactive, or otherwise
hazardous and has been identified as regulated by any
Governmental Authority.
(B) For purposes of this Agreement, the term "Environmental
Requirements" means all applicable Laws, Permits and similar
items of all Governmental Authorities and all applicable
judicial, administrative, and regulatory judgments, decrees,
orders, writs or injunctions relating to the protection of human
health or the environment, including, without limitation:
(1) All requirements pertaining to reporting, licensing,
permitting, investigation, and remediation of emissions,
discharges, releases, or threatened releases of Hazardous
Materials;
(2) All requirements pertaining to the protection of the health
and safety of employees or the public; and
(3) All other limitations, restrictions, conditions, standards,
prohibitions, obligations, schedules and timetables
contained therein or in any notice or demand letter issued,
entered, promulgated or approved thereunder.
(C) For purposes of this Agreement, the term "Environmental Damages"
means any and all Liabilities (as defined in Section 11.1) which
are incurred at any time as a result of the existence prior to
Closing of Hazardous Material upon, about, beneath the Property
or migrating or threatening to migrate to or from the Property,
or the existence of a violation of Environmental Requirements
pertaining to the Property, regardless of whether the existence
of such Hazardous Material or the violation of Environmental
Requirements arose prior to the present ownership or operation of
the Property, and including without limitation:
(1) Damages for personal injury, or injury to property or
natural resources occurring upon or off of the Property,
foreseeable or unforeseeable, including, without limitation,
lost profits, consequential damages, the cost of demolition
and rebuilding of any improvements on real property,
interest and penalties;
(2) Fees incurred for the services of attorneys, consultants,
contractors, experts, laboratories and all other costs
incurred in connection with the investigation or remediation
of such Hazardous Materials or violation of Environmental
Requirements including, but not limited to, the preparation
of any feasibility studies or reports or the performance of
any cleanup, remediation, removal, response, abatement,
containment, closure, restoration or monitoring work
required by any Governmental Authority, or reasonably
16
<PAGE>
necessary to make full economic use of the Property or any
other property in a manner consistent with its intended use
or otherwise expended in connection with such conditions,
and including without limitation any attorneys' fees, costs
and expenses incurred in enforcing this Agreement or
collecting any sums due hereunder;
(3) Liability to any third Person or Governmental Authority to
indemnify such Person or Governmental Authority for costs
expended in connection with the items referenced in of
Section 11.2(b); and
(4) Diminution of the value of the Property, and damages for the
loss of business and restriction on the use of or adverse
impact on the marketing of rentable or usable space or of
any amenity of the Property.
(f) Approvals. Transferor has delivered to Transferee or its
---------
authorized representatives a list of all Consents that must be obtained or
satisfied by Transferor for the consummation of the transactions contemplated by
this Agreement, including, without limitation, all Consents that must be
obtained pursuant to Section 1.5(a). All Consents prescribed by any Law, or any
contract, agreement, commitment or undertaking, and which must be obtained or
satisfied by Transferor for the consummation of the transactions contemplated by
this Agreement, or for the continued performance by them of their rights and
obligations thereunder, have been, or shall by the Closing have been, made,
obtained and satisfied.
(g) Real Property. Transferor has delivered to Transferee or its
-------------
authorized representatives a true, correct and complete list of all instruments
and agreements creating any interest or right in real property relating to the
Business that is conducted at the Facilities (including all easements,
buildings, structures, fixtures and improvements). True, correct and complete
copies of the instruments and agreements identified in such list have been
delivered to Transferee or its authorized representatives. Each such instrument
and agreement is in full force and effect and is a legal, binding and
enforceable obligation of the parties thereto and no event has occurred which
constitutes or, with the giving of notice or passage of time, or both, would
constitute a default or breach thereunder. Transferor has the right to quiet
enjoyment of all real property subject to Lease Agreements under any such
instruments, for the full term of each such Lease Agreement and any renewal
option related thereto. There has been no disturbance of or challenge to the
Transferor's quiet possession under each such Lease Agreement, and no leasehold
or other interest of Transferor in such real property is subject to or
subordinate to any Liens except Permitted Liens. Neither the whole nor any
portion of any real property leased or occupied by Transferor has been
condemned, requisitioned or otherwise taken by any Governmental Authority, and,
to the best of Transferor's knowledge, no such condemnation, requisition or
taking is threatened or contemplated. All buildings, structures, fixtures and
appurtenances comprising part of the Real Properties of Transferor are in good
condition and have been well maintained, normal wear and tear excepted, and
there are no material physical or mechanical defects of the Real Property which
would interfere with the ongoing operations of the Business as currently
conducted at the Facilities. All water, sewer, gas and drainage facilities
required by the present use and operation of the Real Property by Transferor are
17
<PAGE>
installed to the property lines of the Real Property, are all connected and
operating pursuant to valid permits, and are adequate to service the Real
Property in accordance with the present use and operation of the Real Property
by Transferor. The Real Property complies with all applicable Laws and insurance
requirements and all zoning, building and other requirements relating to the use
or occupancy of all or any portion of the Real Property. There are no pending,
or to the best of Transferor's knowledge, contemplated zoning changes, variances
or special zoning agreements affecting or which might affect the Real Property.
(h) Lease Agreements. Each of the Lease Agreements described in
----------------
Section 1.1(d) has not been modified, altered, terminated or revoked, and is in
full force and effect. Transferor, as the present tenant under each Lease
Agreement, is not in default under, or in breach of, any of the terms of each
Lease Agreement, and there are no existing facts or conditions which could give
rise to any such breach or default, or any claim against Transferor, under each
Lease Agreement. Each of the present lessors under each respective Lease
Agreement is not in default thereunder, or in breach thereof, and there are no
existing facts or conditions which could give rise to any such breach or
default, or any claim against each lessor under each respective Lease Agreement.
5.2 Representations and Warranties of Transferee. Transferee
--------------------------------------------
represents and warrants to Transferor and Parent that:
(a) Organization and Standing; Corporate Power and Authority.
--------------------------------------------------------
Transferee is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois, and has full corporate power
and authority to make and perform this Agreement, and to perform the
transactions contemplated by this Agreement. This Agreement and all other
agreements and instruments executed and delivered by Transferee in connection
herewith have been duly executed and delivered by Transferee. This Agreement and
the transactions and the Transaction Documents have been duly approved by the
Board of Directors of Transferee (approval of Transferee's shareholders not
being required), and constitute the valid and binding obligations of Transferee,
enforceable in accordance with their respective terms.
(b) Conflicts; Defaults. Neither the execution and delivery of this
-------------------
Agreement by Transferee, nor the performance of its obligations hereunder, will
conflict with or constitute a default under any of the terms of Transferee's
Articles of Incorporation, as amended, or Bylaws.
5.3 Representations and Warranties of Parent. Subject only to those
----------------------------------------
exceptions and qualifications listed and described (including an identification
by section reference to the representations and warranties to which such
exceptions and qualifications relate) on the Schedule, Parent hereby represents
and warrants to Transferee (it being understood that for purposes of this
Article V, the portion of the Acquired Assets comprising the Dividend Assets
will first be dividended to Parent and then contributed to Transferee) that:
(a) Organization and Standing; Power and Authority. Parent is a
----------------------------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Missouri, and has full corporate power and authority to carry on
its business as now being conducted, and to enter into and perform this
Agreement and the transactions and other agreements and instruments contemplated
by this Agreement. This Agreement and all other agreements and instruments
18
<PAGE>
executed and delivered or to be executed and delivered by Parent in connection
herewith have been, or upon execution thereof will be, duly executed and
delivered by Parent, as the case may be. This Agreement and the transactions and
other agreements and instruments contemplated hereby have been duly approved by
the Board of Directors of Parent, and constitute the valid and binding
obligations of Parent, enforceable in accordance with their respective terms.
(b) Conflicts; Defaults. Neither the execution and delivery of this
-------------------
Agreement and the other agreements and instruments executed or to be executed in
connection herewith by Parent, nor the performance by Parent of the transactions
contemplated hereby or thereby, will (i) violate, conflict with, or constitute a
default under, any of the terms of Parent's Articles of Incorporation or
By-Laws, or any provisions of, or result in the acceleration of any obligation
under, any contract, sales commitment, license, purchase order, security
agreement, mortgage, note, deed, lien, lease, agreement or instrument,
including, without limitation, the Contracts, or any order, judgment or decree,
relating to the Business or the Acquired Assets, or by which Parent or the
Dividend Assets are bound, (ii) result in the creation or imposition of any
Liens or Claims in favor of any third Person or entity upon any of the Dividend
Assets, (iii) violate any Law, statute, judgment, decree, order, rule or
regulation of any Governmental Authority, (iv) constitute an event which, after
notice or lapse of time or both, would result in such violation, conflict,
default, acceleration, or creation or imposition of Liens or Claims, (v)
constitute an event which, after notice or lapse of time or otherwise would
create, or cause to be exercisable or enforceable, any option, agreement or
right of any kind to purchase any of the Dividend Assets. Except as otherwise
provided herein or in the Schedule, no consent, novation, approval, filing or
authorization will be required to be obtained or satisfied for the continued
performance by Transferee following the Closing of any contract, agreement,
commitment or undertaking included in the Dividend Assets.
(c) Dividend Assets; Title to the Dividend Assets. Parent will
---------------------------------------------
immediately transfer to Transferee all Dividend Assets received by Parent from
Transferor. The consummation of the transactions contemplated by this Agreement
(including, without limitation, the transfer or assignment of the Dividend
Assets, and all rights and interests therein, to Transferee as contemplated
herein) will not adversely affect such title or rights, or any terms of the
applicable agreements (whether written or oral) evidencing, creating or granting
such title or rights. The delivery to Transferee of the instruments of transfer
of ownership contemplated by this Agreement will vest good, marketable and
exclusive title (as to all Dividend Assets owned by Parent) or full right to
possess and use (as to all Dividend Assets not owned by Parent) to the Dividend
Assets in Transferee, free and clear of all Liens and Claims of any kind or
nature whatsoever, except for Permitted Liens.
(d) Approvals. Parent has delivered to Transferee or its authorized
---------
representatives a list of all Consents that must be obtained or satisfied by
Parent for the consummation of the transactions contemplated by this Agreement,
including, without limitation, all Consents that must be obtained pursuant to
Section 1.5(a). All Consents prescribed by any Law, or any contract, agreement,
commitment or undertaking, and which must be obtained or satisfied by Parent for
the consummation of the transactions contemplated by this Agreement, or for the
continued performance by them of their rights and obligations thereunder, have
been, or shall by the Closing have been, made, obtained and satisfied.
19
<PAGE>
ARTICLE VI. CONDITIONS TO CLOSING
---------------------------------
6.1 Conditions to Transferee's Obligations. The obligation of
--------------------------------------
Transferee to consummate the transactions provided for by this Agreement is
subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions, any of which may be waived by Transferee except for the
conditions set forth in subsection (c) (as to Consents of Governmental
Authorities) of this Section 6.1:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties of Transferor and Parent made in Section 5.1 and Section 5.3,
respectively, of this Agreement shall be true and correct in all material
respects both on the date hereof and as of the Closing Date as though made at
such time.
(b) Covenants. Each of Transferor and Parent shall have performed and
---------
complied with all covenants and agreements required to be performed or complied
with by it at or prior to the Closing Date.
(c) Consents. All Consents of Governmental Authorities and third
--------
parties described in Sections 1.5, 5.1(f) and 9.3 and necessary to consummate
the transactions contemplated hereunder shall have been obtained and satisfied.
(d) No Proceeding or Litigation. No litigation, action, suit,
---------------------------
investigation, Claim or proceeding challenging the legality of, or seeking to
restrain, prohibit or materially modify, the transactions provided for in this
Agreement shall have been instituted and not settled or otherwise terminated.
(e) Certificate of Transferor and Parent. At the Closing, each of
------------------------------------
Transferor and Parent shall have delivered to Transferee a certificate (the
"Officer's Certificate") signed by that party's President or a Vice President,
and dated the Closing Date, to the effect that to the best of the knowledge of
such officer the conditions specified in Sections 6.1(a), (b), (c) and (d) have
been fulfilled.
(f) Certificate; Documents. Transferor, Parent and the other Persons
----------------------
shall have delivered the certificates and other documents required by Sections
4.2, 4.4 and 4.5.
6.2 Conditions to Transferor's Obligations. The obligations of
--------------------------------------
Transferor to consummate the transactions provided for by this Agreement are
subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions, any of which may be waived by Transferor except for the
conditions set forth in subsection (c) of this Section 6.2:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties of Transferee and Parent made in Section 5.2 and Section 5.3,
respectively, of this Agreement shall be true and correct in all material
respects both on the date hereof and as of the Closing Date as though made at
such time.
(b) Covenants. Transferee and Parent shall have performed and
---------
complied with all covenants and agreements required to be performed or complied
with by it at or prior to the Closing Date.
20
<PAGE>
(c) Consents. All Consents of Governmental Authorities, including
--------
those described in Section 1.5, 5.1(f) and 9.3, necessary to consummate the
transactions contemplated hereunder shall have been obtained.
(d) No Proceeding or Litigation. No litigation, action, suit,
---------------------------
investigation, Claim or proceeding challenging the legality of, or seeking to
restrain, prohibit or materially modify, the transactions provided for in this
Agreement shall have been instituted and not settled or otherwise terminated.
(e) Certificate of Transferee and Parent. At the Closing, each of
------------------------------------
Parent and Transferee shall have delivered to Transferor an Officer's
Certificate signed by the President or a Vice President of such party, and dated
the Closing Date, to the effect that to the best of the knowledge of such
officer the conditions specified in Sections 6.2(a), (b), (c) and (d) have been
fulfilled.
(f) Certificates; Documents. Transferee, Parent and the other Persons
-----------------------
shall have delivered the certificates and other documents required by Sections
4.3, 4.4 and 4.5.
6.3 Conditions to Parent's Obligations. The obligations of Parent to
----------------------------------
consummate the transactions provided for by this Agreement are subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions, any of which may be waived by Parent except for the conditions set
forth in subsection (c) of this Section 6.3:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties of Transferor and Transferee made in Section 5.1 and Section 5.2,
respectively, of this Agreement shall be true and correct in all material
respects both on the date hereof and as of the Closing Date as though made at
such time.
(b) Covenants. Transferee and Transferor shall have performed and
---------
complied with all covenants and agreements required to be performed or complied
with by it at or prior to the Closing Date.
(c) Consents. All Consents of Governmental Authorities, including
--------
those described in Sections 1.5, 5.1(f) and 9.3, necessary to consummate the
transactions contemplated hereunder shall have been obtained.
(d) No Proceeding or Litigation. No litigation, action, suit,
---------------------------
investigation, Claim or proceeding challenging the legality of, or seeking to
restrain, prohibit or materially modify, the transactions provided for in this
Agreement shall have been instituted and not settled or otherwise terminated.
(e) Certificate of Transferee and Transferor. At the Closing, each of
----------------------------------------
Transferor and Transferee shall have delivered to Parent an Officer's
Certificate signed by the President or a Vice President of such party, and dated
the Closing Date, to the effect that to the best of the knowledge of such
officer the conditions specified in Section 6.3(a), (b), (c) and (d) have been
fulfilled.
21
<PAGE>
(f) Certificates; Documents. Transferee, Transferor and the other
-----------------------
Persons shall have delivered the certificates and other documents required by
Sections 4.2, 4.3 and 4.5.
22
<PAGE>
ARTICLE VII. COVENANTS OF TRANSFEROR
------------------------------------
7.1 Conduct of Business. During the period from the date hereof
-------------------
through the Closing Date, Transferor shall conduct the Business at the
Facilities and operate the Acquired Assets diligently and in the ordinary and
normal course and consistent with past practice (including, without limitation,
using its best efforts to preserve beneficial relationships between Transferor
and its distributors, agents, lessors, suppliers and customers) and continue
normal maintenance, marketing, advertising, distributional and promotional
expenditures in connection with the Business that is conducted at the
Facilities. Transferor shall engage in no transactions in connection with the
Business that is conducted at the Facilities or the Acquired Assets, including
transactions relating to the purchase or sale of goods, raw materials,
inventories or other operating or production items, intracorporate or otherwise,
with any of its Affiliates from the date hereof until the Closing other than (a)
transactions approved by Transferee; or (b) transactions on terms no more
favorable to Transferor or its Affiliates than would have been obtainable in
arm's-length dealing.
ARTICLE VIII. COVENANTS OF TRANSFEREE
-------------------------------------
8.1 Maintenance of, and Access to, Records. From and after the
--------------------------------------
Closing, Transferee shall, whenever reasonably requested by Transferor, permit
Transferor to have access to such Business Records turned over to Transferee
pursuant to this Agreement as may be required by Transferor in connection with
any audit or investigation by any Governmental Authority, or any matter relating
to insurance coverage or third party Claims, in each such case to the extent
relating to the operation of the Business at the Facilities by Transferor prior
to the Closing. Transferee shall preserve and maintain the records relating to
the Business that is conducted at the Facilities which are part of the Acquired
Assets for at least three years after the Closing Date.
8.2 Closing. Each of Transferee and Transferor and Parent, as
-------
applicable, shall use its best efforts to cause the conditions set forth in
Sections 6.1, 6.2 and 6.3 to be satisfied by the Closing Date.
ARTICLE IX. CERTAIN ADDITIONAL COVENANTS
----------------------------------------
9.1 Expenses; Transfer Taxes. Each party hereto will bear the legal,
------------------------
accounting and other expenses incurred by such party in connection with the
negotiation, preparation and execution of this Agreement, the Transaction
Documents, and the transactions contemplated hereby. All sales, transfer,
recordation and documentary Taxes and fees which may be payable in connection
with the transactions contemplated by this Agreement shall be borne by
Transferor.
9.2 Bulk Transfer Laws. Transferee hereby waives compliance by
------------------
Transferor with the laws of any jurisdiction relating to bulk transfers which
may be applicable in connection with the transfer of the Acquired Assets to
Transferee.
9.3 Regulatory Approvals. Transferor will, and will cause its
--------------------
appropriate Affiliates to, and Transferee will, use, in each case, its best
efforts to obtain any authorizations, consents, orders and approvals of any
Governmental Authority necessary for the performance of its respective
obligations pursuant to this Agreement and any of the other Transaction
23
<PAGE>
Documents, and the consummation of the transactions contemplated hereby and
thereby, and will cooperate fully with each other in all reasonable respects in
promptly seeking to obtain such authorizations, consents, orders and approvals.
9.4 Employee Matters. Transferor shall retain all liabilities and
----------------
obligations in respect of its past, present and future employees under the
Employee Plans and applicable Laws.
ARTICLE X. TERMINATION
----------------------
10.1 Termination. This Agreement and the transactions contemplated
-----------
hereby may be terminated at any time prior to the Closing (any such date upon
which this Agreement is terminated pursuant to this Article X shall be referred
to herein as the "Termination Date"):
(a) Mutual Consent. By mutual written consent of Parent, Transferor
--------------
and Transferee;
(b) Court Order. By Transferor, Transferee or Parent if consummation
-----------
of the transactions contemplated hereby shall violate any non-appealable final
order, decree or judgment of any court or Governmental Authority having
competent jurisdiction;
(c) Transferee's Conditions. By Transferee, if any condition
-----------------------
precedent to Transferee's obligation to effect the Closing as set forth in
Section 6.1 is not satisfied, or shall have become incapable of fulfillment, and
such condition is not waived, if waivable, by Transferee on or prior to the
Termination Date; and
(d) Transferor's Conditions. By Transferor, if any condition
-----------------------
precedent to Transferor's obligation to effect the Closing as set forth in
Section 6.2 is not satisfied, or shall have become incapable of fulfillment, and
such condition is not waived, if waivable, by Transferor on or prior to the
Termination Date.
(e) Parent's Conditions. By Parent, if any condition precedent to
-------------------
Parent's obligation to effect the Closing as set forth in Section 6.3 is not
satisfied, or shall have become incapable of fulfillment, and such condition is
not waived, if waivable, by Parent on or prior to the Termination Date.
10.2 Effect of Termination. If this Agreement is terminated pursuant
---------------------
to Section 10.1, written notice thereof shall forthwith be given to the other
party and this Agreement shall thereafter become void and have no further force
and effect and all further obligations of Transferor and Transferee under this
Agreement shall terminate without further liability of Transferor or Transferee.
ARTICLE XI. INDEMNIFICATION
---------------------------
11.1 Indemnification by Transferee.
-----------------------------
(a) General. From and after the Closing, Transferee shall indemnify,
-------
defend and hold each of Transferor and Parent, their respective Affiliates, and
their respective directors, officers, representatives, employees and agents, as
the case may be, harmless from and against any and all claims, actions, suits,
24
<PAGE>
demands, assessments, judgments, losses, liabilities, damages, costs and
expenses (including, without limitation, interest, penalties, attorneys' fees to
the extent permitted by law, and accounting fees and investigation costs)
(collectively, "Liabilities") that may be incurred by Transferor or Parent, as
the case may be, resulting or arising from or related to, or incurred in
connection with: (a) the failure of Transferee to assume, pay, perform and
discharge the Assumed Liabilities, and (b) any breach of any representation,
warranty, covenant, obligation or agreement of Transferee contained herein or in
any other Transaction Document.
(b) Environmental Indemnification. Transferee agrees to indemnify,
-----------------------------
defend, reimburse and hold harmless Transferor and Parent, their respective
Affiliates and their respective directors, officers, representatives, employees
and agents, as the case may be, from and against any and all Assumed
Environmental Liabilities. This obligation to indemnify shall include, but not
be limited to, the expense of defending all Claims, suits and administrative
proceedings (with counsel reasonably approved by the indemnified parties), even
if such Claims, suits or proceedings are groundless, false or fraudulent, and
paying and discharging, when and as the same become due, any and all judgments,
penalties or other sums due against such indemnified Persons; provided, however,
that Transferee will be entitled to control any clean-up or remediation, and any
related proceeding, and, except as provided in the following sentence, any other
proceeding with respect to which indemnity may be sought under this Section. The
procedures described in Section 11.3 shall apply to any Claim solely for
monetary damages relating to a matter covered by this Section.
11.2 Indemnification by Transferor.
-----------------------------
(a) General. From and after the Closing, Transferor shall indemnify,
-------
defend and hold Transferee and Parent, their respective Affiliates, and their
respective directors, officers, representatives, employees and agents, as the
case may be, harmless from and against any and all Liabilities that may be
incurred by Transferee or Parent, as the case may be, resulting or arising from,
related to or incurred in connection with: (i) the failure of Transferor to
assume, pay, perform and discharge the Retained Liabilities and (ii) any breach
of any representation, warranty, covenant, obligation or agreement of Transferor
contained herein or in any other Transaction Document.
(b) Environmental Indemnification. Transferor agrees to indemnify,
-----------------------------
defend, reimburse and hold harmless Transferee and Parent, their respective
Affiliates and their respective directors, officers, representatives, employees
and agents, as the case may be, from and against any and all Non-Assumed
Environmental Liabilities. This obligation to indemnify shall include, but not
be limited to, the expense of defending all Claims, suits and administrative
proceedings (with counsel reasonably approved by the indemnified parties), even
if such Claims, suits or proceedings are groundless, false or fraudulent, and
paying and discharging, when and as the same become due, any and all judgments,
penalties or other sums due against such indemnified Persons; provided, however,
that Transferor will be entitled to control any clean-up or remediation, and any
related proceeding, and, except as provided in the following sentence, any other
proceeding with respect to which indemnity may be sought under this Section. The
procedures described in Section 11.3 shall apply to any Claim solely for
monetary damages relating to a matter covered by this Section.
25
<PAGE>
11.3 Notice of Claim; Right to Participate in and Defend Third Party Claim.
----------------------------------------------------------------------
(a) If any indemnified party receives notice of the assertion of any
Claim, the commencement of any suit, action or proceeding, or the imposition of
any penalty or assessment by a third party in respect of which indemnity may be
sought hereunder (a "Third Party Claim"), and the indemnified party intends to
seek indemnity hereunder, then the indemnified party shall promptly provide the
indemnifying party with prompt written notice of the Third Party Claim, but in
any event not later than 30 calendar days after receipt of such notice of Third
Party Claim. The failure by an indemnified party to notify an indemnifying party
of a Third Party Claim shall not relieve the indemnifying party of any
indemnification responsibility under this Article XI, unless such failure
materially prejudices the ability of the indemnifying party to defend such Third
Party Claim.
(b) The indemnifying party shall have the right to control the
defense, compromise or settlement of the Third Party Claim with its own counsel
(reasonably satisfactory to the indemnified party) if the indemnifying party
delivers written notice to the indemnified party within seven days following the
indemnifying party's receipt of notice of the Third Party Claim from the
indemnified party acknowledging its obligations to indemnify the indemnified
party with respect to such Third Party Claim in accordance with this Article XI,
and establishes security in form and substance reasonably satisfactory to the
indemnified party to secure the indemnifying party's obligations under this
Article XI with respect to such Third Party Claim; provided, however, that the
indemnifying party shall not enter into any settlement of any Third Party Claim
which would impose or create any obligation or any financial or other liability
on the part of the indemnified party if such liability or obligation (i)
requires more than the payment of a liquidated sum, or (ii) is not covered by
the indemnification provided to the indemnified party hereunder. In its defense,
compromise or settlement of any Third Party Claim, the indemnifying party shall
timely provide the indemnified party with such information with respect to such
defense, compromise or settlement as the indemnified party shall request, and
shall not assume any position or take any action that would impose an obligation
of any kind on, or restrict the actions of, the indemnified party. The
indemnified party shall be entitled (at the indemnified party's expense) to
participate in the defense by the indemnifying party of any Third Party Claim
with its own counsel.
(c) In the event that the indemnifying party does not undertake the
defense, compromise or settlement of a Third Party Claim in accordance with
subsection (b) of this Section 11.3, the indemnified party shall have the right
to control the defense or settlement of such Third Party Claim with counsel of
its choosing; provided, however, that the indemnified party shall not settle or
compromise any Third Party Claim without the indemnifying party's prior written
consent, unless (i) the terms of such settlement or compromise release the
indemnified party or the indemnifying party from any and all liability with
respect to the Third Party Claim, or (ii) the indemnifying party shall not have
acknowledged its obligations to indemnify the indemnified party with respect to
such Third Party Claim in accordance with this Article XI and established
security in form and substance reasonably satisfactory to the indemnified party
to secure the indemnifying party's obligations under this Article XI with
respect to such Third Party Claim. The indemnifying party shall be entitled (at
the indemnifying party's expense) to participate in the defense of any Third
Party Claim with its own counsel.
26
<PAGE>
(d) Any indemnifiable Claim hereunder that is not a Third Party Claim
shall be asserted by the indemnified party by promptly delivering notice thereof
to the indemnifying party. If the indemnifying party does not respond to such
notice within 60 days after its receipt, it shall have no further right to
contest the validity of such Claim.
11.4 Time Limitations on Claims for Indemnification. The right of
----------------------------------------------
Transferee, Transferor or Parent to indemnification for any breach of any
representation or warranty shall apply only to those claims for indemnification
which are given pursuant to this Agreement on or before the date which is five
years following the Closing Date.
ARTICLE XII. MISCELLANEOUS
--------------------------
12.1 Amendments. This Agreement may be amended only by a writing
----------
executed by each of the parties hereto.
12.2 Entire Agreement. This Agreement and the other agreements
----------------
expressly provided for herein, set forth the entire understanding of the parties
hereto with respect to the subject matter hereof, and supersede all prior
contracts, agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written, between the parties.
12.3 Governing Law. This Agreement shall in all respects be governed
-------------
by and construed in accordance with the laws of the State of Illinois, without
regard to its conflicts of law doctrine.
12.4 Notices. Any notice, request or other communication required or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given (a) when received if personally delivered, (b) within 5 days after being
sent by registered or certified mail, return receipt requested, postage prepaid,
(c) within 12 hours after being sent by telecopy, with confirmed answerback, or
(d) within 1 business day of being sent by priority delivery by established
overnight courier, in each case to the address set forth below.
If to Transferor, at:
Union Electric Company
1901 Chouteau Avenue
St. Louis, Missouri 63103
Attention: Vice President
If to Transferee, at:
Central Illinois Public Service Company
607 East Adams Street
Springfield, Illinois 62739
Attention: Vice President
27
<PAGE>
If to Parent, at:
Ameren Corporation
1901 Chouteau Avenue
St. Louis, Missouri 63103
Attention: President
Any party by written notice to the other given in accordance with this Section
12.4 may change the address or the contact to whom notices or copies thereof
shall be directed.
12.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
12.6 Assignment. This Agreement shall be binding upon and inure to the
----------
benefit of the successors and assigns of each party hereto, but no rights,
obligations or liabilities hereunder shall be assignable by either party without
the prior written consent of the other party.
12.7 Waivers. Except as otherwise provided herein, Parent, Transferee
-------
or Transferor (acting on behalf of itself and its appropriate Affiliates), may
waive in writing compliance by any of the other party hereto (to the extent such
compliance is for the benefit of the party giving such waiver) with any of the
terms, covenants or conditions contained in this Agreement or in any of the
other Transaction Documents (except such as may be imposed by law). Any waiver
by either party of any violation of, breach of, or default under, any provision
of this Agreement or any of the other Transaction Documents, by the other party
shall not be construed as, or constitute, a continuing waiver of such provision,
or waiver of any other violation of, breach of or default under any other
provision of this Agreement or any of the other Transaction Documents.
12.8 Third Parties. Nothing expressed or implied in this Agreement is
-------------
intended, or shall be construed, to confer upon or give any Person or entity
other than Parent, Transferee and Transferor any rights or remedies under or by
reason of this Agreement.
12.9 Schedules, Addenda and Exhibits. The Schedule, Addenda and
-------------------------------
Exhibits attached to this Agreement are incorporated herein and shall be part of
this Agreement for all purposes.
12.10 Headings. The headings in this Agreement are solely for
--------
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
12.11 Certain Definitions. For purposes of this Agreement, (a) the
-------------------
term "Affiliate" shall mean any Person that directly, or indirectly through one
or more Persons, controls, is controlled by, or is under common control with,
the Person specified or, directly or indirectly, is related to or otherwise
associated with any such Person or entity and (b) references to an "Account"
that are followed by a three-digit number shall mean Transferor's accounting
entries identified by the applicable number.
12.12 Remedies Not Exclusive. No remedy conferred by any of the
----------------------
specific provisions of this Agreement is intended to be exclusive of any other
remedy and each remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or hereafter existing at law or in equity or by
statute or otherwise. No remedy shall be deemed to be a limitation on the amount
or measure of damages resulting from any breach of this Agreement. The election
28
<PAGE>
of any one or more remedies shall not constitute a waiver of the right to pursue
other available remedies.
12.13 Gender and Number. The masculine, feminine or neuter gender and
-----------------
the singular or plural number shall each be deemed to include the others
whenever the context so indicates.
[SIGNATURE PAGE FOLLOWS]
29
<PAGE>
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
UNION ELECTRIC COMPANY d/b/a
AMEREN UE, a Missouri corporation
By:
------------------------------------
Print Name:
Title:
CENTRAL ILLINOIS PUBLIC SERVICE
COMPANY d/b/a AMEREN CIPS, an Illinois
corporation
By:
------------------------------------
Print Name:
Title:
AMEREN CORPORATION, a Missouri
corporation
By:
------------------------------------
Print Name:
Title:
