Item 1. Acquisition or Disposition of Assets.
On April 16, 1996, the Registrant, Ridgewood Electric Power Trust
III, acquired an interest in a 12.3 megawatt capacity electrical
generating station (the "Providence Project") located at the
Central Landfill in Johnston, Rhode Island. The Providence
Project uses eight reciprocating engines fueled by methane gas
generated and collected from the landfill. The Project's
electricity output is sold to New England Power Corporation under
a long-term contract terminating in 2021.
The Registrant and Ridgewood Electric Power Trust IV, a Delaware
business trust ("Ridgewood Power IV"), organized a Delaware
limited partnership, Ridgewood Providence Power Partners, L.P.
(the "Partnership") to act as owner of the Providence Project.
The Registrant contributed an aggregate of $7,130,000 to the
capital of the Partnership and its corporate general partner and
owns a 35.7% equity interest in each, and Ridgewood Power IV
contributed an aggregate of $12,850,000 to those same entities
and owns a 64.3% interest in each. The Registrant funded its
capital contributions to the Partnership and its general partner
from the net proceeds of its private placement offering of shares
of beneficial interest. Distributions and allocations of income,
loss and tax items from the Providence Project will be divided
between the two trusts in proportion to their capital
contributions (except for a one percent allocation to the
corporate general partner).
The Partnership purchased the Providence Project from
Northeast Landfill Power Joint Venture, an Illinois general
partnership (the "Seller") between Northeast Landfill Power
Company and Johnson Natural Power Corporation (the "Venturers").
Neither the Seller nor the Venturers have material relationships
with the Registrant and its affiliates and the purchase price was
determined through arm's length negotiations.
The purchase price for the assets of the Providence Project
was $10,300,000, of which $500,000 is being withheld by the
Partnership and the Seller in a joint account pending completion
of a post-closing performance test for the system that collects
gas from the landfill. The $500,000 will be paid to the Seller
if the performance criteria are met. If not, the Partnership may
apply those funds to improvements in the gas collection system.
In addition, in order to obtain the consent of lenders to
the Project and of the owner of the landfill to the transaction,
the Partnership prepaid $3,000,000 in principal amount of debt
encumbering the Providence Project and $925,000 in gas royalties
to the landfill owner, Rhode Island Solid Waste Management Corp.
Together with other expenses of the acquisition, the total
investment by the Trust and Ridgewood Power IV in the assets
acquired was $14,700,000. The remaining $5,300,000 of the
Partnership's capitalization is to be applied to reserves for
capital improvements and expansion of the Providence Project and
to working capital.
The gas supply is currently being purchased under an
existing contract expiring in 2021 at a fixed price equal to 15%
of the Providence Project's gross revenues.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
The audited historical and unaudited pro forma financial
statements required by Regulation S-K are in preparation and
cannot be furnished at this time. They will be provided by
amendment to this Current Report no later than July 2, 1996.
(c) Exhibits.
Exhibit No. Item
2 Asset Acquisition Agreement by and
among Northeast Landfill Power Joint Venture,
Northeast Landfill Power Company, Johnson
Natural Power Corporation and Ridgewood
Providence Power Partners, L.P.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
RIDGEWOOD ELECTRIC POWER TRUST III
By: /s/ Robert K. Brady
Robert K. Brady, Senior Vice
President and Chief Financial
Officer
EXECUTION COPY
ASSET ACQUISITION AGREEMENT
Between and Among
Northeast Landfill Power Joint Venture,
Northeast Landfill Power Company,
Johnston Natural Power Corporation
and
Ridgewood Providence Power Partners, L.P.
Dated as of January 1, 1996
Acquisition of the Assets of
Northeast Landfill Power Joint
Venture.
TABLE OF CONTENTS
Article 1 Definitions and Interpretations Page 2
Article 2 Sale and Purchase of Assets; Purchase Price Page 14
Article 3 Closing Date and Actions at Closing Page 18
Article 4 Representations and Warranties Page 20
Article 5 Representations and Warranties of RPLP Page 37
Article 6 Conditions Precedent to the Obligations of RPLP Page 40
Article 7 Conditions Precedent to the Obligations of the Joint
Venture Page 45
Article 8 Pre-Closing Covenants and Termination Page 48
Article 9 Post Closing Covenants Page 55
Article 10 Indemnification Page 58
Article 11 Tax Matters Page 61
Article 12 Miscellaneous Page 63
Article 13 Execution Clause Page 69
EXHIBITS
Assignment and Assumption Agreement Exhibit A
Bill of Sale
Exhibit B
Financial Statements Exhibit C
Form of Sublease Amendment Exhibit D
ASSET ACQUISITION AGREEMENT
THIS ASSET ACQUISITION AGREEMENT (this "Agreement") is made
and entered into as of January 1, 1996, between and among Northeast
Landfill Power Joint Venture, a joint venture organized as a
general partnership under the laws of the State of Illinois (the
"Joint Venture"), Northeast Landfill Power Company, a Massachusetts
corporation and co-general partner of the Joint Venture ("NLPC"),
Johnston Natural Power Corporation, a Delaware corporation and co-
general partner of the Joint Venture ("JNPC"), and Ridgewood
Providence Power Partners, L.P., a Delaware limited partnership
("RPLP").
RECITALS
A. The Joint Venture owns all of the assets comprising an
approximately 12.2985 (net) megawatt landfill gas fired electric
generation facility located in the town of Johnston, Rhode Island
(the "Project"), which provides electric energy and capacity to NEP
(as defined below), pursuant to the Power Purchase Agreement (as
defined below).
B. The Joint Venture desires to sell substantially all of
its properties and assets to RPLP, and RPLP desires to purchase
substantially all of the properties and assets of the Joint
Venture.
C. The Joint Venture, NLPC and JNPC are entering into this
Agreement in order to consummate the sale of assets by the Joint
Venture to RPLP and to effectuate the other transactions
contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants set forth below, the parties, intending to
be legally bound, hereby agree as follows:
ARTICLE 1
Definitions and
Interpretations
1.1 Defined Terms. Capitalized terms used in this Agreement
without other definition shall have the meanings specified in
this Section 1.1, unless the context requires otherwise.
"Additional Consents and Notices" has the meaning set forth
in Section 4.6.
"Affiliate" of a specified Person means any other Person
that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the
Person specified. For purposes of the foregoing, "control,"
"controlled by" and "under common control with," with respect to
any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Affiliate Notes" means (i) the Promissory Note of the
Joint Venture dated July 14, 1989, payable to Douglas M. Kinney,
in the original principal amount of $67,141 and having a balance
due as of the Effective Date of $139,654.19 and (ii) the
Promissory Notes of the Joint Venture dated June 27, 1989, August
1, 1989 and August 9, 1989, each payable to JNPC in the original
principal amount of $20,000, $19,000 and $32,141 respectively,
and each having a balance due as of the Effective Date of
$41,800.21, $31,048.57 and $66,355.28, respectively (or
$139,204.06 in total).
"Agreement" means this Asset Acquisition Agreement,
including all Exhibits and Schedules attached hereto.
"Assignment" means an Assignment and Assumption Agreement
substantially in the form of Exhibit A attached hereto, or as
otherwise modified as agreed by the Joint Venture and RPLP.
"Bill of Sale" means the Bill of Sale substantially in the
form of Exhibit B attached hereto.
"Closing" has the meaning given in Section 3.1.
"Closing Date" has the meaning given in Section 3.1.
"Closing Documents" means, collectively, (i) this
Agreement, (ii) the Bill of Sale and (iii) each Assignment
required to be delivered hereunder.
"Code" means the Internal Revenue Code of 1986, as amended,
and all rules and regulations adopted thereunder as in effect
from time to time.
"Current Assets" means, collectively, the current assets of
the Joint Venture shown on the Balance Sheet contained in the
Financial Statements.
"Current Liabilities" means, collectively, all current
liabilities of the Joint Venture shown on the Balance Sheet
contained in the Financial Statements (excluding, however, all
amounts of principal due or to become due under the Northwestern
Financing Arrangements).
"Default" means, when used with reference to any agreement
without other reference, any event or circumstance that, with the
giving of notice or lapse of time, or both, would, unless cured
or waived, become an Event of Default under such agreement.
"Effective Date" means 12:01 a.m., January 1, 1996.
"Environmental Laws" means, collectively, all federal,
state, local and other laws, statutes and regulations, and any
other rule, guidance, guideline or common law, which in any way
relates to health, safety or the environment, including the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 43 U.S.C. section 9601 et seq.; the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, as amended by the Solid and Hazardous Waste
Amendments of 1984, 42 U.S.C. section 6901 et seq.; the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977,
33 U.S.C. section 1251 et seq.; the Toxic Substances Control Act of
1976, 15 U.S.C. section 2601 et seq.; the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. section 11001 et seq.;
the Clean Air Act of 1966, as amended, 42 U.S.C. section 7401 et seq.;
the National Environmental Policy Act of 1975, 42 U.S.C. section 4231;
the Rivers and Harbours Act of 1899, 33 U.S.C. section 401 et seq.; the
Endangered Species Act of 1973, as amended, 16 U.S.C. section 1531 et
seq.; the Occupational Safety and Health Act of 1970, as amended,
29 U.S.C. section 651 et seq.; the Safe Drinking Water Act of 1974, as
amended, 42 U.S.C. section 300(f) et seq.; the Hazardous Materials
Transportation Act, 42 U.S.C. sections 1471, 1472, 1655, 1801 et seq.;
the Federal Insecticide, Fungicide & Rodenticide Act, 7 U.S.C. sections
136 et seq.; the Atomic Energy Act, 42 U.S.C. sections 3011 et seq; and
any corresponding Rhode Island statutes.
"Event of Default" means, when used with reference to any
agreement without other reference, an event of default or other
similar event as defined in, or pursuant to, the terms of such
agreement.
"Excluded Assets" means the assets described in the
exclusions contained in sub-paragraphs (i), (ii), (iii) and (iv)
of the definition of "Purchased Assets".
"FERC" means the Federal Energy Regulatory Commission and
its successors.
"Financial Statements" means the unaudited balance sheet
and income statement of the Joint Venture as at December 31,
1995, attached hereto as Exhibit C.
"FPA" means the Federal Power Act, as amended, and all
rules and regulations adopted thereunder as in effect from time
to time.
"GAAP" means generally accepted accounting principles in
effect in the United States from time to time, applied on a
consistent basis by the accounting entity to which they refer.
"Gas Agreements" means, collectively, the Lease Agreement
and the Sublease Agreement.
"Gasco" has the meaning set forth in the definition of
"Sublease Agreement."
"Governmental Approval" shall mean any authorization,
consent, approval, waiver, exception, variance, order, franchise,
permit, license, or exemption issued by any federal, state or
local Governmental Person.
"Governmental Filing" shall mean any filings, reports,
registrations, notices or other submissions made to any federal,
state or local Governmental Person.
"Governmental Consents and Notices" has the meaning set
forth in Section 4.5.
"Governmental Person" means, with respect to any Person,
any federal, state, local or other government, or any political
subdivision thereof or any governmental, judicial, public or
statutory instrumentality, tribunal, agency (including those
pertaining to health, safety or the environment), authority, body
or entity, or other regulatory bureau, authority, body or entity
having legal jurisdiction over the matter or Person in question.
"Governmental Rule" means, with respect to any Person, any
applicable federal, state, local or other law, statute, treaty,
rule, regulation, ordinance, order, code, judgment, decree,
directive, injunction, writ or similar action or decision duly
implementing any of the foregoing by any Governmental Person, but
does not include Governmental Approvals.
"Hazardous Substance" shall mean any "hazardous substance"
as defined under Section 101(14) of CERCLA or the regulations
adopted pursuant thereto, or any "hazardous substance" as defined
under any similar Rhode Island statute, rule or regulation.
"HSR Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and all applicable rules
and regulations thereunder as in effect from time to time.
"H-W" means Hayden-Wegman, Inc., a New York Corporation.
"JNPC" has the meaning set forth in the preamble to this
Agreement.
"Joint Account" shall mean the joint checking account
described in Section 2.4 hereof.
"Joint Venture" has the meaning set forth in the recitals
hereto.
"Joint Venture Agreement" means that certain Joint Venture
Agreement dated as of February 3, 1989 between and among NLPC and
JNPC, as joint venturers, pursuant to which the Joint Venture is
organized.
"Joint Venture Interest" shall mean (i) with respect to
NLPC, its 50% partnership interest in the Joint Venture under the
Joint Venture Agreement, (ii) with respect to JNPC, its 50%
partnership interest in the Joint Venture under the Joint Venture
Agreement, and (iii) collectively, the partnership interests of
NLPC and JNPC in the Joint Venture under the Joint Venture
Agreement.
"Knowledge," "known" and "knows," whether or not
capitalized herein and when used with respect to matters set
forth in a representation, warranty, covenant or other provision
of this Agreement applicable to the Joint Venture means the
knowledge and beliefs of any executive officer of any of the
Joint Venture, NLPC or JNPC, including but not limited to Gordon
Deane, Doug Kinney and Hugh Eaton after due inquiry.
"Lease Agreement" means that certain Landfill Gas Lease
Agreement dated as of May 1, 1987 by and among RISWMC and H -W,
as supplemented by that certain Supplemental Agreement dated as
of May 1, 1987, by and between RISWMC and H-W, as further
supplemented by that certain letter from RISWMC to Mr. Donald
Dargie dated May 9, 1988, as amended by that certain letter
agreement dated July 28, 1988 between RISWMC and H-W, as further
amended by that certain Amendment to Landfill Gas Lease Agreement
dated as of March 31, 1989 by and between RISWMC and H-W, and as
further amended by that certain letter agreement dated September
6, 1991 between RISWMC and the Joint Venture (successor to H-W by
virtue of that certain Assignment dated as of March 31, 1989 and
consented to by RISWMC pursuant to that certain Consent to
Assignment and Agreement dated as of March 31, 1989) confirming
the "Primary Term" thereof, and as further amended by that
certain Second Amendment to Landfill Gas Lease Agreement dated as
of October 24, 1991 by and between RISWMC and the Joint Venture,
as evidenced and further amended by (i) that certain Memorandum
of Landfill Gas Lease Agreement dated October 30, 1989 by and
between RISWMC and H-W, (ii) that certain Memorandum of Landfill
Gas Lease Agreement dated December 18, 1989, by and between
RISWMC and H-W, (iii) that certain Memorandum of Landfill Gas
Lease Agreement and Easement Agreement dated April 19, 1991 by
and between RISWMC and the Joint Venture and (iv) that certain
Memorandum of Landfill Gas Lease Agreement and Easement Agreement
dated October 29, 1991 by and between RISWMC and the Joint
Venture recorded in the Land Evidence Records in Book 354, Page
145.
"Lien" means any lien, mortgage, encumbrance, charge,
pledge, lease, security interest, claim, option or right of any
kind (including any conditional sale or other title retention
agreement) which constitutes an interest in or claim against
property, except Permitted Liens.
"Management Agreements" mean (i) the Management Agreement
dated October 31, 1989 between the Joint Venture and NLPC and
(ii) the Management Agreement dated October 31, 1989 between the
Joint Venture and JNPC.
"NEP" means New England Power Company, a Massachusetts
corporation.
"NLPC" has the meaning set forth in the preamble to this
Agreement.
"Northwestern Financing Arrangements" means the Note
Purchase Agreement dated as of October 1, 1991 between and among
the Joint Venture and Northwestern National Life Insurance
Company, Northern Life Insurance Company and The North Atlantic
Life Insurance Company of America, and all documents, instruments
and agreements related thereto.
"Permits" means the Governmental Approvals and the
Governmental Filings described in Section 4.19 hereof.
"Permitted Liens" means (i) the Liens created under the
Northwestern Financing Arrangements, (ii) any Lien for real
estate or similar taxes which are not yet due and payable, (iii)
the Liens created under the Power Purchase Agreement and (iv)
Liens on record at the Johnston land records.
"Person" means any individual, corporation, partnership,
trust, joint venture, unincorporated association, limited
liability company, Governmental Person or other entity.
"Power Purchase Agreement" means that certain Power
Purchase Agreement dated as of November 6, 1987 by and between
NLPC and NEP, as amended by Amendment dated December 1, 1989, and
as further amended by Second Amendment dated October 31, 1991, as
assigned by NEP to Massachusetts Electric Company by Assignment
dated November 18, 1987, as reassigned by Reassignment dated
February 12, 1988 by Massachusetts Electric Company to NEP and as
assigned by Assignment Agreement dated March 31, 1989 by NLPC to
the Joint Venture and consented to by NEP on October 12, 1988.
"Project" has the meaning set forth in the recitals to this
Agreement.
"Project Documents" has the meaning set forth in Section
4.17.
"Project Information" has the meaning set forth in Section
4.29.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended, and all rules and regulations adopted
thereunder as in effect from time to time.
"Purchase Price" means the amount described in Section 2.2
hereof.
"Purchased Assets" means all of the properties and assets
(real and personal, tangible and intangible) of the Joint Venture
of every kind and wherever situated which are owned by the Joint
Venture or in which it has any right or interest as the same may
exist on the Closing Date (including, without limiting the
generality of the foregoing, its business as a going concern; its
goodwill and franchises; its trademarks, trademark registrations
and trademark applications; its trade names, copyrights,
copyright applications and copyright registrations; its patents
and patent applications; its franchises, permits, licenses,
processes, formulae, trade secrets, inventions and royalties,
including all rights to sue for past infringement; its lands,
leaseholds and other interests in land; its inventory, equipment
and supplies; its cash, money on deposit with banks and others,
certificates of deposit, commercial paper, stocks, bonds and
other investments; its accounts receivable; its causes of action,
judgments, claims and demands of whatever nature; its tangible
and intangible personal property of all kinds; its deferred
charges, advance payments, prepaid items, claims for refunds,
right of offset and credits of all kinds, including all credit
balances under any state unemployment compensation plan or fund;
its employment contracts, restrictive covenants and obligations
of present and former officers and employees and of individuals
and corporations; its contracts and rights under joint venture
agreements or other arrangements; its files, papers and records
relating to the aforesaid business, properties and assets);
provided, however, that the Purchased Assets shall not include
the following (collectively referred to as the "Excluded
Assets"):
(i) The consideration delivered to the Joint Venture
pursuant to this Agreement;
(ii) The rights of the Joint Venture to enforce the
obligations of RPLP to pay, perform or discharge the liabilities
and obligations of the Joint Venture assumed by RPLP as
hereinafter provided and all other rights of the Joint Venture
under this Agreement (including all rights to indemnification by
RPLP contained herein);
(iii) All insurance policies maintained by the Joint
Venture; provided, however that any such policies relate to or
provide coverage for the benefit of the Project with respect to
claims made or events which occurred after the Effective Date but
prior to the Closing Date, the Joint Venture will assign to RPLP,
or otherwise obtain for the benefit of RPLP, all rights to such
coverages under such policies;
(iv) Any tax benefits or tax attributes of the Joint
Venture (or any of its partners);
(v) The WPI Agreements;
(vi) The Management Agreements;
(vii) Books and records of the Joint Venture relating
solely to its organization;
(viii) Any current asset which is not included in the
determination of Current Assets; and
(ix) The rights by way of defense or counterclaim against a
claim asserted against the Joint Venture to the extent not
assumed or indemnified by RPLP.
The Purchased Assets shall include without limitation all assets
of the Joint Venture reflected on the balance sheet of the Joint
Venture contained in the Financial Statements, except for the
Excluded Assets and except as disposed of after the date of the
Financial Statements in the ordinary course and in compliance
with the provisions of this Agreement.
"PURPA" means the Public Utility Regulatory Policies Act
of 1978, as amended, and all rules and regulations adopted
thereunder as in effect from time to time.
"Qualifying Facility" means a "qualifying facility" within
the meaning of PURPA.
"RIPUC" means the Rhode Island Public Utilities Commission
and its successors.
"RISWMC" means Rhode Island Solid Waste Management
Corporation, a Rhode Island Corporation.
"RPLP" has the meaning set forth in the preamble of this
Agreement.
"Regulated Substance" means (a) asbestos, PCBs, petroleum
or petroleum products, and (b) any "hazardous substances",
"hazardous waste", "hazardous materials", "extremely hazardous
substances", "regulated substances", "industrial waste",
"residual waste", "solid waste", "toxic substances", "toxic
pollutants", "contaminants" or "pollutants" as any of those terms
is currently defined in or for the purpose of any applicable
Environmental Law.
"Release or Discharge" shall mean, whether or not
capitalized, any spill, leak, emission, dumping, discharge,
injection, escape, or disposal of any substance into the
environment, including any surface water, groundwater, land
surface, subsurface strata, or air.
"SCS Engineers Report" has the meaning set forth in Section
6.10(b) hereof.
"Securities Act" means the Securities Act of 1933, as
amended, and all rules and regulations adopted thereunder as in
effect from time to time.
"Site" means the land leased to the Joint Venture under the
Lease Agreement.
"Sublease Agreement" means that certain Rhode Island
Landfill Gas Contract and Sublease Agreement dated as of March
31, 1989 by and between Northeast Landfill Gas Limited
Partnership [now Gasco] and the Joint Venture, as amended by
Amendment dated December 3, 1989 by and between Gasco and the
Joint Venture and Second Amendment dated as of October 31, 1991
by and between Gasco and the Joint Venture.
"Sublease Amendment" means the amendment to the Sublease
Agreement referred to in Section 6.9 hereof.
"WPI" means WPI Packaging and Maintenance Company, Inc., a
Texas corporation.
"WPI Agreements" means all agreements, contracts, memoranda
and understandings, written or oral, to which the Joint Venture
is a party with WPI, including without limitation (i) the
Agreement for Turnkey Engineering, Procurement and Construction
Services dated November 22, 1989 between the Joint Venture and
WPI pursuant to which the Joint Venture purchased certain
equipment and services for the Project, (ii) the Operation and
Maintenance Contract dated as of November 22, 1989 between the
Joint Venture and WPI, as amended by an Amendment dated October
31, 1991, pursuant to which WPI provides certain operation and
maintenance services for the Project and (iii) the Settlement
Agreement dated October 12, 1995 between the Joint Venture and
WPI.
1.2 Interpretations. For purposes of this Agreement,
except where otherwise expressly provided or unless the context
otherwise necessarily requires:
1.2.1 the terms "herein," "herewith" and "hereof"
are references to this Agreement, taken as a whole;
1.2.2 the terms "include," "includes" and
"including" shall mean "including, without limitation";
1.2.3 references to a "Section," "Article,"
"Exhibit" or "Schedule" shall mean a Section, Article, Exhibit or
Schedule of this Agreement, as the case may be;
1.2.4 references to a given agreement, instrument or
other document shall be a reference to that agreement, instrument
or other document as modified, amended, supplemented and restated
through the date as of which such reference is made;
1.2.5 references to a Person include its permitted
successors and permitted assigns;
1.2.6 the singular shall include the plural and the
masculine shall include the feminine and neuter, and vice versa;
1.2.7 reference to a given Governmental Rule is a
reference to that Governmental Rule as amended, modified,
supplemented or restated as of the date on which the reference is
made; and
1.2.8 accounting terms have the meanings given to
them by GAAP.
ARTICLE 2
Sale and Purchase of
Assets; Purchase Price
2.1 Sale of Purchased Assets. Upon the terms and subject
to the conditions of this Agreement, at the Closing on the
Closing Date, the Joint Venture agrees to sell, assign, transfer,
convey and deliver to RPLP, and RPLP agrees to purchase, acquire
and accept from the Joint Venture, the Purchased Assets.
2.2 Determination of Purchase Price. The aggregate
purchase price to be paid to the Joint Venture by RPLP for the
Purchased Assets at the Closing as contemplated hereby, (the
"Purchase Price") shall be determined as of the Effective Date
and in accordance with GAAP, as follows:
(a) $8,000,000; plus
(b) $973,720, being an amount equal to the Effective Date
balance in the Escrow Account (as defined in the Power Purchase
Agreement), net of the 15% royalty payable to RISWMC and the .75%
payment in lieu of taxes to the Town of Johnston with respect
thereto; plus
(c) $877,087, being an amount equal to the sum of (i) the
$501,533 Effective Date balance in the Debt Service Reserve
Account (as defined in the Northwestern Financing Arrangements),
plus (ii) the $375,554 Effective Date balance in the Maintenance
Reserve Account (as defined in the Northwestern Financing
Arrangements); plus
(d) $447,542, being an amount equal to the amount by which
(1) the Current Assets exceed the Current Liabilities; minus
(e) All amounts, if any, paid by the Joint Venture from and
after the Effective Date with respect to the Management
Agreements (except to the extent such amounts were included in
the determination of Current Liabilities); minus
(f) All amounts (whether principal or interest) paid to
Affiliates of the Joint Venture from and after the Effective Date
with respect to the Affiliate Notes (except to the extent such
amounts were included in the determination of Current
Liabilities); plus
(g) An amount in lieu of interest computed at the rate of
5.2% per annum from the Effective Date through the Closing Date
on the sum of the amounts set forth in Sub-sections 2.2(a), (b),
(c), (d), (e) and (f) above, less the $500,000 amount of the
deposit to the Joint Account as provided in Section 2.3(a) below;
minus
(h) An amount equal to the lesser of (i) $400,000 or (ii)
amount of any and all prepayment premiums, legal fees, filing
fees and other costs and expenses (excluding debt repayment)
required to be paid or incurred by RPLP to or for the account of
Northwestern National Life Insurance Company and/or its
Affiliates in order to secure the consent of the holders of the
notes issued under the Northwestern Financing Arrangements to the
sale of assets by the Joint Venture and the assumption of the
Northwestern Financing Arrangements by RPLP.
The parties intend that the economic effects of the closing
of the transactions contemplated hereby shall relate back to the
Effective Date (notwithstanding the actual Closing Date) and the
parties are adopting the approach set forth herein so that the
economic burdens and benefits of ownership of the Project shall
be for the account of RPLP from and after the Effective Date.
2.3 Payment of Purchase Price. The Purchase Price shall
be paid to or for the account of the Joint Venture at the Closing
as follows:
(a) $500,000 of the Purchase Price shall be paid by deposit
by RPLP of $500,000 in cash in the Joint Account;
(b) An amount (not to exceed $300,000 in the aggregate)
shall be paid to the holders of the Affiliate Notes, in each case
by wire transfer of immediately available funds in the amounts
and to U.S. bank accounts identified to RPLP in writing by the
Joint Venture at least three business days prior to the Closing
Date (such payments being made in full satisfaction of the
Affiliate Notes and against receipt by the Joint Venture (with a
copy to RPLP) of the originals of all such notes from the holders
thereof marked "paid"); and
(c) The remaining balance of the Purchase Price shall be
paid by wire transfer of immediately available funds to a U.S.
bank account of the Joint Venture identified to RPLP in writing
by the Joint Venture at least 3 business days prior to the
Closing Date.
2.4 Joint Account. Prior to the Closing, RPLP shall cause
to be established a regular checking account at the main office
of Fleet National Bank in Providence, Rhode Island (the "Joint
Account"). Such account shall require two signatures to
authorize any disbursement of funds with one signatory to be
designated by RPLP and one signatory to be designated by the
Joint Venture. Each of RPLP and the Joint Venture agrees to
instruct their respective designees to authorize disbursements
from the Joint Account from time to time in accordance with the
terms and provisions of this Agreement, and pending any such
disbursements, to authorize the investment of the funds deposited
in the Joint Account in obligations of the United States having a
maturity of not more than 30 days.
2.5 Assumption of Liabilities. At the Closing, RPLP shall
assume and shall thereafter discharge, satisfy or pay when due,
the following liabilities of the Joint Venture existing as of the
Closing Date:
(a) All Current Liabilities (except to the extent
discharged, paid or satisfied by the Joint Venture after the
Effective Date and on or prior to the Closing Date);
(b) Additional current liabilities incurred by the Joint
Venture in the ordinary course of business and in accordance with
the provisions of this Agreement from and after the Effective
Date through the Closing Date to parties which were not
affiliated with the Joint Venture at the time that such current
liabilities were incurred (including, specifically, current
liabilities incurred under the Operation and Maintenance Contract
described in subparagraph (ii) of the definition of WPI
Agreements, the 15% royalty payable to RISWMC and the 0.75%
payment to the Town of Johnston in lieu of taxes);
(c) All liabilities to Gasco under the Sublease Agreement,
as amended by the Sublease Amendment;
(d) All liabilities and obligations under the Northwestern
Financing Arrangements, as amended or modified as contemplated
hereby;
(e) The amount equal to the amount of reduction in the
Escrow Account amount described in Section 2.2(b) attributable to
the 15% royalty payable to RISWC and the 0.75% payment to the
Town of Johnston in lieu of taxes; and
(f) The obligations of the Joint Venture under the other
agreements subject to the Assignments, to the extent set forth in
each of such Assignments.
Except as expressly provided by this Section 2.5 (and the
specific terms of the Assignments), RPLP shall not assume or
become responsible for any other liabilities of the Joint Venture
(including, for example, the WPI Agreements (except to the extent
described in subparagraph 2.5(b) above) and the Management
Agreements) and all such other liabilities shall be retained by,
and satisfied by, the Joint Venture.
ARTICLE 3
Closing Date and Actions at
Closing
3.1 Closing Date. Subject to the other provisions of this
Agreement, the closing of the transactions contemplated by this
Agreement (the "Closing") shall be held at the offices of
Hinckley, Allen & Snyder, 1500 Fleet Center, Providence, Rhode
Island, 02903, at 10:00 A.M., local time on April 10, 1996 or, if
later, within 5 days after the later to occur of (i) satisfaction
(or waiver by the Joint Venture) of the closing conditions set
forth in Article 7 hereof or (ii) satisfaction (or waiver by
RPLP) of the closing conditions set forth in Article 6 hereof or
(iii) such other time and place as may be mutually agreed upon by
the parties. The date of the Closing is sometimes referred to
herein as the "Closing Date".
3.2 Actions at Closing. In addition to and without
limiting any other provision of this Agreement, the Joint Venture
(in the case of Sections 3.2.1) and RPLP (in the case of Section
3.2.2) agree to take the following actions or use their
reasonable efforts to cause the following actions to be taken at
the Closing on or before the Closing Date:
3.2.1 Deliveries of the Joint Venture. The Joint
Venture will take such action as may be necessary to cause the
delivery to RPLP of:
(a) The Bill of Sale executed by the Joint Venture;
(b) An Assignment executed by the Joint Venture for
each of the Project Documents to which the Joint
Venture is a party (other than the Permits);
(c) Checks or drafts for all funds of the Joint
Venture on deposit with banks or other persons as of
the Closing Date (other than the Joint Account funds
and the Purchase Price funds); and
(d) Such other instruments of transfer as shall be
reasonably requested by RPLP to vest in RPLP good and
marketable title to the Purchased Assets.
3.2.2 Deliveries of RPLP. RPLP will take such
action as may be necessary:
(a) To cause the deposit of the sum of $500,000 in
the Joint Account in accordance with the provisions
of Section 2.3(a) above;
(b) To cause wire transfers of the balance of the
Purchase Price to be made in accordance with the
provisions of Section 2.3 (b) and (c) above;
(c) To deliver to the Joint Venture an Assignment
executed by RPLP for each of the Project Documents
described in 3.2.1(b) above; and
(d) To cause the amount described in Section 2.2(h)
above to be paid or applied to or for the account of
the holders of the notes issued under the
Northwestern Financing Arrangements.
3.3 Additional Actions. The Joint Venture and RPLP,
shall, on and after the Closing Date, take such further actions
as contemplated as may be requested by the other party pursuant
to Article 9.2 hereof.
ARTICLE 4
Representations and Warranties
Subject to the provisions of Section 12.11 below, each of
NLPC, JNPC and the Joint Venture hereby represent and warrant to
RPLP (regardless of any examinations, inspections, audits or
other investigations RPLP has heretofore made or may hereafter
make) that the following statements are true, correct and
complete in all respects; provided, however, that representations
and warranties pertaining (i) solely to NLPC shall be deemed to
be made individually by NLPC, (ii) solely to JNPC shall be deemed
to be made individually by JNPC, and (iii) to the Joint Venture,
the Project or the Purchased Assets shall be deemed to be made
jointly and severally by NLPC, JNPC and the Joint Venture.
4.1 Due Organization. Each of NLPC and JNPC is a
corporation, and the Joint Venture is a general partnership, in
each case duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and each
of such Persons is qualified to transact business in all
jurisdictions where the ownership of its properties or its
operations require such qualification. Each of NLPC and JNPC are
single purpose corporations organized solely for the purpose of
owning their respective Joint Venture Interests and have not
engaged in any other business or incurred any liabilities other
than pursuant to the Project Documents to which it is a party.
There are no dissolutions, winding up or similar proceedings
pending, or to the knowledge of NLPC, JNPC or the Joint Venture,
threatened against any of such Persons.
4.2 Power and Authority. Subject to obtaining the
consents and making the filings described in Sections 4.5 and 4.6
below, each of NLPC and JNPC has full corporate power and
authority, and the Joint Venture has full partnership power and
authority, to enter into and perform its obligations hereunder
and under any of the other Closing Documents to which it is or
will be a party and to consummate the transactions herein and
therein. All corporate or partnership proceedings required to be
taken by NLPC, JNPC or the Joint Venture to authorize it to
execute, deliver and perform the terms of this Agreement and the
other Closing Documents to which it is or will be a party have
been duly and validly taken.
4.3 Valid, Binding and Enforceable Obligation. Each of
this Agreement and the other Closing Documents to which any of
NLPC, JNPC or the Joint Venture is or will be a party has been,
or will be on the Closing Date, duly and validly executed by such
Person, and constitutes, or will constitute when executed, a
valid, binding, and legal obligation, enforceable against such
Person in accordance with its respective terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights and the enforcement of debtors' obligations
generally and by general principles of equity, regardless of
whether enforcement is pursuant to a proceeding in equity or at
law.
4.4 No Violations. The execution and delivery by NLPC,
JNPC and the Joint Venture of this Agreement and the other
Closing Documents to which any of such Persons is or will be a
party, and the consummation of the transactions contemplated
hereby and thereby will not (a) violate or be in conflict with
the charter documents of NLPC or JNPC or the organizational
documents of the Joint Venture, or, (b) subject to obtaining the
consents and making the filings described in Sections 4.5 and 4.6
below, violate or be in conflict with or constitute a Default or
Event of Default under, or cause or permit the acceleration of
the maturity of, or give rise to any right of termination,
cancellation, imposition of fees or penalties under, any Project
Document, any Permit or any other debt, obligation, contract,
commitment of fees or other agreement to which any of NLPC, JNPC
or the Joint Venture is a party or by which any of its respective
properties or assets is or may be bound, (c) result in the
creation or imposition of any Lien upon any of the property or
assets of any of NLPC, JNPC or the Joint Venture or (d) violate
any Governmental Rule.
4.5 Governmental Consents and Notices. Except for the
Governmental Approvals set forth on Schedule 4.5 (collectively,
the "Governmental Consents and Notices"), no Governmental
Approval is necessary or appropriate in connection with the
execution and delivery of this Agreement and the other Closing
Documents by any of NLPC, JNPC or the Joint Venture or the
consummation by such Persons of the transactions contemplated
hereby and thereby, including the transfer of the Purchased
Assets to RPLP. Except as expressly described on Schedule 4.5,
all of the Governmental Consents and Notices have been duly
obtained or made and none has been revoked or rescinded or has
expired. Except for the Governmental Approvals and Governmental
Filings set forth on Schedule 4.5, no Governmental Approval or
Governmental Filing is required either before or after Closing in
order for (i) the Project to continue to operate in compliance
with the Permits, and (ii) each of the Permits to remain in full
force and effect until its respective designated expiration or
renewal date.
4.6 Additional Consents and Notices. Except for the
consents, notices and other items set forth on Schedule 4.6
(collectively, the "Additional Consents and Notices"), no filing,
registration, qualification, notice, consent, approval or
authorization to, with or from any Person (excluding Governmental
Persons) is necessary or appropriate in connection with the
execution and delivery of this Agreement and the other Closing
Documents by any of NLPC, JNPC or the Joint Venture or the
consummation of the transactions contemplated hereby and thereby,
by such Persons, including the transfer of the Purchased Assets
to RPLP. Except as expressly described on Schedule 4.6, all of
the Additional Consents and Notices have been duly obtained or
made and none has been revoked or rescinded or has expired.
4.7 Ownership. NLPC and JNPC are the only partners of the
Joint Venture. Each of NLPC and JNPC has good and marketable
title to the Joint Venture Interest owned by it, in each case,
subject to no Liens. The Joint Venture will sell and transfer
the Purchased Assets to RPLP at the Closing free and clear of all
Liens as herein provided, and upon such conveyance to RPLP, RPLP
will acquire all rights in the Purchased Assets held by the Joint
Venture and, to the knowledge of NLPC, JNPC or the Joint Venture,
shall be entitled to conduct the business of the Project in the
same manner and to the same extent as previously conducted by the
Joint Venture without approval or consent of any other Person
(except as specifically identified herein).
4.8 No Litigation. There are no actions, suits or
proceedings of any type pending or, to the knowledge of NLPC,
JNPC or the Joint Venture threatened, against any of NLPC, JNPC
or the Joint Venture or any of their respective properties or
business, whether at law or in equity, before or by any
Governmental Person. Neither NLPC, JNPC nor the Joint Venture
has any knowledge of any state of facts or contemplated event
which may reasonably be expected to give rise to any such action,
suit or proceeding. Neither of NLPC, JNPC nor the Joint Venture
is operating under (other than any Governmental Approval), or
subject to, or in default with respect to, any order, writ,
injunction or decree of any Governmental Person (other than such
orders, writs, injunctions or decrees which the Joint Venture may
be subject by reason of the lease or occupation of the Site under
the Lease Agreement).
4.9 Bankruptcy. Neither NLPC, JNPC nor the Joint Venture
has filed any voluntary petition in bankruptcy or been
adjudicated a bankrupt or insolvent, filed any petition or answer
seeking any reorganization, liquidation, dissolution or similar
relief under any federal bankruptcy, insolvency, or other debtor
relief law, or sought or consented to or acquiesced in the
appointment of any trustee, receiver, conservator or liquidator
of all or any substantial part of its respective properties. No
court of competent jurisdiction has entered an order, judgment or
decree approving a petition filed against NLPC, JNPC or the Joint
Venture seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
any federal bankruptcy act, or other debtor relief law, and no
other liquidator has been appointed of NLPC, JNPC or the Joint
Venture, or of all or any part of their respective properties.
4.10 PUHCA, FPA, Etc. Neither NLPC, JNPC nor the Joint
Venture is a "public utility company," an "electric utility
company, a "holding company," a "subsidiary company," an
"associate company" or an "affiliate" within the meaning of
PUHCA, the FPA, PURPA or under any applicable state laws relating
to the regulation of electric utilities.
4.11 Business of the Joint Venture. The Joint Venture has
not engaged in any business or activities other than the
development, ownership, operation and maintenance of the Project
and matters incidental thereto. Without limiting the generality
of the foregoing, except as disclosed herein, the Joint Venture
(a) does not own any capital stock, partnership interest or other
interest of any type, directly or indirectly, in any other
corporation, partnership or other Person, (b) has not conducted
any business other than the business contemplated by the Project
Documents to which it is a party, (c) except as disclosed on
Schedules 4.11 and 4.17.1, is not a party to or bound by any
material contract, agreement, instrument or other document other
than the Project Documents to which it is a party and (d) has no
outstanding debt or other liability of any type other than
pursuant to the Project Documents to which it is a party or as
otherwise disclosed in the Financial Statements.
4.12 Qualifying Facility Matters. The Project has been
certified by the FERC (or self-certified by the Joint Venture) as
a Qualifying Facility. The Project is, and during all applicable
periods has been, a Qualifying Facility in compliance in all
material respects with all technical and ownership requirements
contained in all applicable FERC rules and regulations. To the
knowledge of NLPC, JNPC and the Joint Venture, the Project is in
compliance with all policies and procedures publicly promulgated
by FERC or NEP (if any) with respect to the compliance of
Qualifying Facilities with applicable FERC rules and regulations,
and NEP has never threatened to delay or withhold any payment due
or to become due under the Power Purchase Agreement or to cancel
the Power Purchase Agreement. To the knowledge of NLPC, JNPC and
the Joint Venture, no Person (including NEP, the RIPUC or the
FERC) has ever provided notice to the effect, or otherwise
asserted or alleged, that the Project has failed or may fail to
comply in any respect with any applicable rule or regulation
relating to Qualifying Facilities.
4.13 Financial Statements; Books of Account. NLPC, JNPC
and the Joint Venture have heretofore furnished to RPLP the
Financial Statements. Such Financial Statements have been
prepared in accordance with GAAP, and present fairly the
financial position and results of operations of the Joint Venture
at the dates and for the periods indicated therein, subject, in
the case of unaudited financial statements, to normal year-end
adjustments. The Joint Venture has not engaged in any
transaction, maintained any bank account or used any of the funds
of the Joint Venture in the conduct of its business except for
transactions, bank accounts and funds which have been and are
reflected in the Financial Statements.
4.14 Absence of Certain Changes. Except as disclosed on
Schedule 4.14, since the date of the Financial Statements, the
Joint Venture has not:
4.14.1 entered into any transaction which was not in
the ordinary course of its business;
4.14.2 suffered any material adverse change in its
business, operations, finances, assets or liabilities;
4.14.3 suffered any material damage to, destruction
of or loss of or to the Project or any of its assets;
4.14.4 declared, paid or set aside for payment any
amounts for distribution to NLPC, JNPC or any other Person; or
4.14.5 made any change in any method of accounting
or accounting practice or any change in depreciation or
amortization policies or rates theretofore adopted.
4.15 No Undisclosed Liabilities. The Joint Venture has no
liabilities or obligations of any nature (whether accrued,
absolute, fixed or unfixed, known or unknown, asserted or
unasserted, contingent, by guaranty, surety or assumption or
otherwise) in excess of $1,000 for any individual item or more
than $10,000 in the aggregate, which were not fully disclosed,
reflected or reserved against in the Financial Statements, or the
notes thereto, which are required to be disclosed in the
Financial Statements under GAAP (except for current trade
liabilities or other obligations which have been incurred to
parties which are not Affiliates of the Joint Venture since the
date of the Financial Statements in the ordinary course of
business and except for liabilities to Affiliates of the Joint
Venture incurred under the Sublease Agreement, the Management
Agreements or the Affiliate Notes).
4.16 Assets.
4.16.1 Real Property Rights; Title Insurance. The
Joint Venture does not own any real property. Schedule 4.16.1 is
a complete and accurate list of (i) all real property which is
leased by the Joint Venture and of all easements, rights of way,
rights of interconnection and other similar agreements in which
the Joint Venture has any rights and (ii) all title insurance
policies and similar insurance policies issued to the Joint
Venture or any of its Affiliates relating to any of the property
described in preceding clause (i).
4.16.2 Fixtures and Improvements. Schedule 4.16.2
is a complete and accurate list of all buildings, fixtures and
other improvements owned by the Joint Venture and located on the
Site or elsewhere.
4.16.3 Equipment and Other Personal Property. To
the extent not included on Schedule 4.16.2, Schedule 4.16.3 is a
complete and accurate list of all equipment, plant, machinery,
installations, tools, spare parts, furniture, supplies, vehicles
and other personal property owned by the Joint Venture, excluding
only those items which have a fair market value of less than
$1,000 individually, and Schedule 4.16.3 specifically indicates
any such item of property which is not located on or at the Site
and identifies the location thereof.
4.16.4 Title to Assets. The Joint Venture has good
leasehold title to the Site, free and clear of all Liens, and the
Joint Venture has good and marketable title to the remainder of
the Project and all of the Purchased Assets free and clear of all
Liens. Except to the extent set forth in Schedule 4.16.4, to the
knowledge of NLPC, JNPC and the Joint Venture, the Purchased
Assets constitute all of the assets necessary for the safe,
lawful and proper operation and use of the Project (including all
easements, rights of way, rights on interconnection and other
similar rights and agreements required for the operation of the
Project) in the manner contemplated by the Project Documents.
4.17 Project Documents. Schedule 4.17 attached hereto
sets forth a list and brief description of every written
agreement, contract, instrument, license, and franchise relating
to the Project, including all amendments, supplements and
exhibits, if any, thereto which are currently in effect and which
are or could be material in any way to the business of the Joint
Venture or the ownership or operation of the Project
(collectively, the "Project Documents"). A true, correct and
complete copy of each of the Project Documents requested by RPLP
has been delivered to RPLP.
4.17.1 Except for the Project Documents and except
as set forth on Schedule 4.17.1, the Joint Venture is not a party
to or subject to any agreement, contract, instrument, license or
franchise of any kind which is currently in effect and which is
or could be material in any way to the business of the Joint
Venture or the ownership or operation of the Project.
4.17.2 None of the Project Documents has been
modified, supplemented, amended or terminated in any material
respect, in any such case whether orally or in writing, except by
means of another Project Document.
4.17.3 Except as set forth on Schedule 4.17.3, each
of the Project Documents constituting an agreement, contract,
instrument or other similar document (including the Power
Purchase Agreement), has been duly authorized, executed and
delivered by the Joint Venture, and to the knowledge of NLPC,
JNPC and the Joint Venture by each of the other parties thereto
and, except to the extent fully performed in accordance with its
terms, is in full force and effect and is valid and enforceable
in accordance with its terms except as enforceability may be
limited by bankruptcy or other similar laws of general
application.
4.17.4 Except as set forth on Schedule 4.17.4, to
the knowledge of NLPC, JNPC and the Joint Venture, no Default or
Event of Default by or on behalf of the Joint Venture has
occurred under any Project Document (including the Power Purchase
Agreement), which could result in the payment by the Joint
Venture of $1,000 in any individual circumstance or $10,000 in
the aggregate and which remains unwaived or uncured, and none of
the Joint Venture, NLPC nor JNPC has received notice, oral or
written, that a Default or Event of Default on the part of any
other party thereto has occurred thereunder or that any other
Person has alleged or asserted any such Default or Event of
Default by any other party thereto (in each case, other than any
such Default or Event of Default has been cured or waived).
4.18 No Employees, Etc. The Joint Venture does not have
and never has had, any employees, or any compensation, bonus,
health, sick pay, disability, vacation pay, group-term life
insurance, dependent care assistance, accidental death and
dismemberment insurance, severance, employee welfare, pension,
profit sharing, retirement or other employee benefit plans,
funds, programs or arrangements.
4.19 Permits.
(a) Except as described on Schedule 4.19, the Joint
Venture has obtained and holds all Governmental Approvals which
are necessary for, or appropriate in connection with, the
construction, ownership, use, occupation, and operation of the
Project and the conduct of the Joint Venture's business and
activities in accordance with the Project Documents or otherwise.
The Joint Venture has made all Governmental Filings required
with respect to the construction, ownership, use, occupation, and
operation of the Project and the conduct of the Joint Venture's
business and activities. All such required Governmental
Approvals and Governmental Filings are listed on Schedule 4.19,
attached hereto (collectively, the "Permits"), and a true,
correct and complete copy of each of the Permits requested by
RPLP has been delivered to RPLP.
(b) Except as described on Schedule 4.19, each of the
Permits set forth in Schedule 4.19 has been issued and vested
exclusively in the name of the Joint Venture (except to the
extent otherwise noted on the face of the Permit), is in full
force and effect, and is final, any fixed period for appeal or
review having elapsed (other than as to ongoing compliance or
modification during the term of such Governmental Approval as
otherwise provided by law and as indicated in Schedule 4.19). To
the knowledge of NLPC, JNPC and the Joint Venture, no such Permit
is subject to any pending suit, action, investigation, proceeding
or appeal (whether judicial, administrative or otherwise) and no
such matter is threatened.
(c) To the knowledge of NLPC, JNPC and the Joint Venture,
neither the Joint Venture nor any Affiliate thereof has committed
any act, or failed to act, in any manner or under any
circumstances which could result in the revocation or suspension
of any existing Permit or in any other enforcement action.
(d) Neither the Joint Venture nor any Affiliate thereof
has received any written notice of violation or other
notification from any Governmental Person or from any third
party, alleging that the Joint Venture or any Affiliate thereof
has committed any act, or failed to act, in any manner or under
any circumstances which could result in the revocation or
suspension of any existing Permit or in any other enforcement
action.
(e) Except as otherwise disclosed on Schedule 4.19, the
consummation of the transactions provided for in this Agreement
and the other Closing Documents will not impair
or adversely affect any of the rights, power or privileges
granted pursuant to any of the Permits. Except as otherwise
disclosed in Schedule 4.19, no Governmental Approval or
Governmental Filing is required either before or after Closing in
order for (i) the Project to continue to operate in compliance
with the Permits, and (ii) each of the Permits to remain in full
force and effect until its respective designated expiration or
renewal date.
(f) Neither NLPC, JNPC nor the Joint Venture has any
reason to believe that (i) any Permit which is renewable will not
be renewed upon its natural expiration in the ordinary course of
business upon compliance with normal and customary renewal
procedures applicable to the respective Permit; or (ii) any
Permit will be modified, to impose more restrictive conditions or
requirements which may hinder the operation, production capacity,
or revenue of the Project, or to increase the costs of operating
the Project.
4.20 General Legal Compliance. Except as disclosed on
Schedules 4.20, 4.21 or 4.21.1, to the knowledge of NLPC, JNPC
and the Joint Venture, each of NLPC, JNPC, the Joint Venture and
the Project have at all times fully complied in all material
respects with all Governmental Rules applicable to such Person
and with all Permits, including all Governmental Rules applicable
to the conduct of such Person's business and activities and to
the construction, ownership, operation, maintenance and use of
the Project.
4.21 Environmental Legal Compliance. Without limiting the
generality of Section 4.20, and except as disclosed on Schedules
4.21, or 4.21.1
(a) To the knowledge of NLPC, JNPC and the Joint Venture,
the Joint Venture and the Project have each complied with, and
are in compliance with: (x) the terms and conditions of all
Governmental Approvals and Governmental Filings issued or
required pursuant to any Environmental Law, and (y) all other
limitations, restrictions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any
Environmental Law, or in any notice, order, or demand letter
issued, entered, promulgated, or approved pursuant to any
Environmental Law;
(b) To the knowledge of NLPC, JNPC and the Joint Venture,
neither the Joint Venture nor the Project (i) has been or is
alleged to have been in violation of any Environmental Law,
(ii) has received any notice of violation or other notification
from any Governmental Person or any third party alleging that the
Joint Venture or the Project are in violation of any
Environmental Law, or (iii) are subject to, or have been subject
to, any administrative or judicial proceedings or investigations
pursuant to any Environmental Law.
(c) To the knowledge of NLPC, JNPC and the Joint Venture,
neither NLPC, JNPC, the Joint Venture nor the Project has caused
or permitted the Release of any polychlorinated biphenyls,
asbestos containing material, or urea formaldehyde insulation at
the Site in such quantities as to impose any obligation on the
Joint Venture or the Project to remove or remediate any such
substances; provided, however, that such substances may be
present in the landfill gas used by the Project (or the
condensate derived therefrom) but are properly disposed of under
existing Permits.
(d) There are not now, and there have not been previously,
any underground storage tanks owned or installed by the Joint
Venture or the Project on the Site (other than one underground
oil/water separator installed by the Joint Venture on the Site).
(e) To the knowledge of NLPC, JNPC or the Joint Venture,
neither the Site nor other real property now or previously owned
or leased by the Joint Venture, contain any Regulated Materials
that, under any Environmental Law currently in effect, (i) impose
or could reasonably be expected to impose on NLPC, JNPC, the
Joint Venture or the Project a liability for removal,
remediation, or other cleanup, or damage to natural resources;
(ii) could have a material adverse affect on the value of the
Project or the Purchased Assets; or (iii) could reasonably be
expected to result in the imposition of a Lien on the Project or
any of the other Purchased Assets.
(f) None of the Joint Venture, NLPC, JNPC or their
respective Affiliates has received any request for information
from any Governmental Authority or other person which is related
to any location (including the Site) which is, or may be, subject
to actions for removal, response, remediation or cleanup of
Regulated Substances, including but not limited to any
information request pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA") or
any similar Rhode Island statute, rule or regulation and which
may subject the Joint Venture or the Project to any obligation
for removal, response, remediation or cleanup of Regulated
Substances at the location.
(g) None of the Joint Venture, NLPC, JNPC or their
respective Affiliates has received any notice of violation or
order, demand, or other claim (i) for removal, response,
remediation or cleanup of any Regulated Substances at any
location (including the Site); (ii) for damage to natural
resources; or (iii) for personal injury or property damage
related to the release or discharge of Regulated Substances.
(h) To the knowledge of NLPC, JNPC and the Joint Venture,
neither the Joint Venture nor the Project has, except in
compliance with all applicable rules, regulations and permits:
(i) disposed, discharged, or released any Hazardous
Substance or Regulated Substance at;
(ii) arranged for the disposal of any Hazardous
Substance or Regulated Substance at;
(iii) transported any Hazardous Substance or
Regulated Substance to; or
(iv) owned or operated,
any location or facility (including the Site) that is listed or
proposed for listing on the National Priority List under CERCLA
or any similar State remedial action priority list, or which has
been proposed for removal or remedial action under any
Environmental Law.
(i) To the knowledge of NLPC, JNPC and the Joint Venture,
the Joint Venture and the Project have obtained and complied with
all required Governmental Approvals for the disposal or
beneficial use of all wastes generated by the Project. Schedule
4.21.1 sets forth a full and complete list of all sites and
facilities where wastes generated by the Joint Venture and the
Project have been stored, treated, processed or disposed.
(j) The Project and all facilities and sites to which waste
materials generated by the Project have been sent for storage,
treatment, processing, or disposal are, to the knowledge of NLPC,
JNPC and the Joint Venture in compliance with all applicable
Environmental Laws.
(k) None of the Joint Venture, NLPC or JNPC has made or is
currently obligated to make, any report or notification to any
Governmental Person regarding the release or discharge of any
Regulated Substance.
(l) To the knowledge of NLPC, JNPC and the Joint Venture,
there has not been, whether prior to or in connection with the
construction and operation of the Project (including any
activities or processes relating to the Project) any release or
discharge by the Joint Venture or the Project of any Regulated
Substance at or to the Site (whether onto or into the ground,
soil, subsurface, surface water, ground water, air or otherwise),
and other than those which (i) are permitted under all applicable
Environmental Laws and Permits; and (ii) occur only in the
ordinary course of the operation of the Project.
4.22 Insurance. Schedule 4.22 contains a list and
description of all insurance policies of any type which are held
by any of NLPC, JNPC or the Joint Venture, specifying the
insurer, amount of coverage, type of insurance, policy number and
any pending claims thereunder. Except as disclosed on Schedule
4.22, no claim of any type is pending under any of such policies.
4.23 Utilities. All utility services necessary for the
operation of the Project are available at the location of the
Project, including water supply, sanitary and storm sewer
facilities, and gas, electric and telephone facilities.
4.24 Project Construction. Except as set forth on
Schedule 4.24, to the knowledge of NLPC, JNPC and the Joint
Venture, the Project is being operated and maintained in
accordance with all applicable Governmental Rules and Permits and
there are no design or other defects in the Project or any other
Purchased Asset.
4.25 Project Conditions. Except as set forth on Schedule
4.25, to the knowledge of NLPC, JNPC and the Joint Venture, the
Project and all of the Purchased Assets are in good operating
condition, maintenance and repair (subject only to normal wear
and tear).
4.26 Brokers. Neither this Agreement nor the consummation
of the transactions contemplated hereby was induced by or
procured through any Person acting on behalf of, or representing,
any of NLPC, JNPC, the Joint Venture or any of their respective
Affiliates as a broker, finder, investment banker, financial
advisor or in any similar capacity.
4.27 Tax Matters. The Joint Venture and each of NLPC and
JNPC has properly, accurately and timely completed and filed all
federal, state and local tax returns and reports, declarations
and information returns ("Tax Returns") required to be filed by
or on behalf of such Person and each such Person has withheld and
paid over all amounts shown on such returns and all other due and
payable charges. The Joint Venture is classified as a
partnership, and not as an association taxable as a corporation
under Section 7701 of the Code and the regulations promulgated
thereunder, and is taxed as a partnership for federal income tax
purposes under subchapter "K" of the Code. No Tax Returns have
been audited by any federal, state or local taxing authorities
except for a Massachusetts audit of the Joint Venture's tax
returns for the years 1990-1992 which resulted in a "no-change"
letter.
4.28 Bank Accounts. Schedule 4.28 sets forth an accurate
and complete list of (a) the names and locations of all banks,
trust companies, savings and loan associations and other
financial institutions at which the Joint Venture maintains
accounts of any nature or safe deposit boxes and the names of all
Persons authorized to draw thereon, make withdrawals therefrom or
to have access thereto and (b) the names of the Persons, if any,
holding general or specific powers of attorney from any of such
Persons the Joint Venture and a summary of the terms thereof.
4.29 For purposes of the HSR Act, the Joint Venture, NLPC
and JNPC represent and warrant to RPLP that the "ultimate parent
entity" (as defined in the HSR Act) of the Joint Venture has
total assets of less than $100 million and net sales of less than
$100 million.
4.30 Accuracy of Project Information. The information
contained in this Agreement, the Financial Statements and all
other certificates, documents and instruments furnished by or on
behalf of NLPC, JNPC or the Joint Venture in connection with this
Agreement and the transactions contemplated hereby (all such
information, being referred to collectively herein as the
"Project Information"), is true, correct and complete in all
material respects, and none of the Project Information contains
any untrue statement or representation of a material fact or
omits to state or represent a material fact necessary in order to
make the statements and representations included therein not
misleading in light of the circumstances under which they were
made.
ARTICLE 5
Representations and Warranties
of RPLP
Subject to the provisions of Section 12.11 below, RPLP
represents and warrants to each of NLPC, JNPC and the Joint
Venture as follows:
5.1 Due Organization. RPLP is a limited partnership duly
organized and validly existing under the laws of the State of
Delaware, and is qualified to transact business in all
jurisdictions where the ownership of its properties or its
operations require such qualification.
5.2 Power and Authority. RPLP has full partnership
authority to enter into and perform its obligations hereunder and
under the other Closing Documents to which it is or will be a
party and to consummate the transactions herein and therein
contemplated in accordance with the terms, provisions and
conditions hereof and thereof. All partnership proceedings
required to be taken by RPLP to authorize it to execute, deliver
and perform the terms of this Agreement and the other Closing
Documents to which it is or will be a party have been duly and
validly taken.
5.3 Valid, Binding and Enforceable Obligations. Each of
this Agreement and the other Closing Documents to which RPLP is
or will be a party has been, or will be on the Closing Date, duly
and validly executed by RPLP, and constitutes, or will when
executed constitute, a valid and binding obligation, enforceable
against RPLP, in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights and the enforcement of debtors' obligations
generally and by general principles of equity, regardless of
whether enforcement is pursuant to a proceeding in equity or at
law.
5.4 No Violations. The execution and delivery by RPLP of
this Agreement and the other Closing Documents to which it is or
will be a party, and the consummation of the transactions
contemplated hereby and thereby will not (a) violate or be in
conflict with the organizational documents of RPLP, (b) violate,
be in conflict with, or constitute a Default or Event of Default
under, or cause or permit the acceleration of the maturity of, or
give rise to any right of termination, cancellation, imposition
of fees or penalties under, any debt, obligation, contract,
commitment of fees or other agreement to which RPLP is a party or
by which any of its properties or assets is or may be bound, (c)
result in the creation or imposition of any Lien upon any of the
property or assets of RPLP, under any debt, obligation, contract,
commitment or other agreement to which RPLP is a party or by
which any of its properties or assets is or may be bound, or (d)
violate any Governmental Rule.
5.5 Bankruptcy. RPLP has not filed any voluntary petition
in bankruptcy or been adjudicated a bankrupt or insolvent, filed
any petition or answer seeking any reorganization, liquidation,
dissolution or similar relief under any federal bankruptcy,
insolvency, or other debtor relief law, or sought or consented to
or acquiesced in the appointment of any trustee, receiver,
conservator or liquidator of all or any substantial part of its
properties. No court of competent jurisdiction has entered an
order, judgment or decree approving a petition filed against RPLP
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
any federal bankruptcy act, or other debtor relief law, and no
other liquidator has been appointed of RPLP or of all or any part
of its properties.
5.6 No Litigation. There are no actions, suits or
proceedings of any type pending or, to its knowledge threatened,
against RPLP or any of its properties or business, whether at law
or in equity, before or by any Governmental Person. RPLP has no
knowledge of any state of facts or contemplated event which may
reasonably be expected to give rise to any such action, suit or
proceeding. RPLP is not operating under, or subject to, or in
default with respect to, any order, writ, injunction or decree of
any Governmental Person.
5.7 Brokers' Fees. Neither this Agreement nor the
consummation of the transactions contemplated hereby was induced
by or procured through any Person acting on behalf of, or
representing, RPLP or its Affiliates as a broker, finder,
investment banker, financial advisor or in any similar capacity
(other than Donald C. Stewart pursuant to a separate arrangement
between Mr. Stewart and RPLP).
5.8 Ownership of Qualifying Facility. The acquisition of
the Purchased Assets by RPLP hereunder will not result in a
violation of PURPA or the regulations promulgated thereunder with
respect to ownership of a "qualifying facility" by a person
"primarily engaged in the generation or sale of electric power
(other than electric power solely from cogeneration facilities or
small power production facilities)" for purposes of 18 CFR Sec.
292.206.
5.9 PUHCA. RPLP is not a "holding company" or a
"subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility," in each case within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
5.10 Due Diligence and Experience. RPLP has had the
opportunity to inspect the Project and to ask questions of and
receive answers from NLPC, JNPC and the Joint Venture with
respect to the Joint Venture, the Project and the Purchased
Assets. RPLP is experienced in making investments in the nature
of the transaction contemplated hereby.
5.11 HSR Act. For purposes of the HSR Act, the RPLP
represents and warrants to the Joint Venture, NLPC and JNPC that
the "ultimate parent entity" (as defined in the HSR Act) of RPLP
has total assets of less than $100 million and net sales of less
than $100 million.
ARTICLE 6
Conditions Precedent to the
Obligations of
RPLP
The obligations of RPLP to consummate the transactions
contemplated hereby shall be subject to the fulfillment to the
satisfaction of, or waiver by, RPLP, in its sole discretion, of
each of the following conditions on or prior to the Closing:
6.1 No Termination. This Agreement shall not have been
terminated pursuant to Section 8.5 hereof.
6.2 Representations True and Correct; Certificate. The
representations and warranties of NLPC, JNPC and the Joint
Venture contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date with the same
force and effect as if made on and as of the Closing Date, and
each such Persons shall have executed and delivered to RPLP an
officer's certificate confirming the same.
6.3 Compliance with Covenants; Certificate. Each of NLPC,
JNPC and the Joint Venture shall have performed and complied in
all material respects with all covenants, agreements and
conditions required by this Agreement to be performed or complied
with by it prior to or on the Closing Date, and each of such
Persons shall have executed and delivered to RPLP an officer's
certificate confirming the same.
6.4 No Adverse Proceedings. On the Closing Date, no
action or proceeding shall be pending by any public authority or
private individual or entity before any court or administrative
body to restrain, enjoin or otherwise prevent the consummation of
this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the
transactions proposed hereby.
6.5 Proceedings Satisfactory. All proceedings to be taken
in connection with the consummation of the transactions
contemplated by this Agreement and all documents incident
thereto, shall be reasonably satisfactory in form and substance
to RPLP and its counsel and RPLP and its counsel shall have
received copies of such documents as they shall reasonably
request in connection therewith.
6.6 No Adverse Changes. There shall have been no
materially adverse change in the position, financial or
otherwise, or the assets, liabilities or results of operations of
the Joint Venture, the Project or the Purchased Assets other than
as permitted or contemplated by this Agreement, nor shall the
business, assets and properties of the Joint Venture have been
materially and adversely affected in any way as a result of fire,
explosion, earthquake, disaster, accident, flood, riot, civil
disturbance, uprising, activity of armed forces, or act of God or
public enemy, whether or not covered by applicable insurance, in
each case, from the date hereof through the Closing Date.
6.7 Consents and Notices. All Governmental Consents and
Notices, Additional Consents and Notices and other consents or
notices required to be obtained from or made to any Person for
the consummation of the transactions contemplated hereby shall
have been duly obtained, made or provided, as the case may be,
and shall be in full force and effect without adverse
modifications.
6.8 Insurance Certificate. RPLP shall have received
certificate confirming that RPLP has been named as an additional
insured under the insurance policies described in Section 4.22
above.
6.9 Modification of Sublease Agreement. The Sublease
Agreement shall have been amended and/or modified substantially
in the form of Exhibit D attached hereto and otherwise in form
and substance reasonably satisfactory to RPLP to reflect the
amendments to the Lease Agreement described in Section 6.19
below.
6.10 Due Diligence Items. RPLP shall have completed in a
satisfactory manner its due diligence review of the Joint
Venture, the Purchased Assets and the Project, which review shall
include the following:
(a) Performance testing of the Project's currently
installed equipment in accordance with specifications and
procedures designed by RPLP to confirm that the design and
capability of such equipment will permit the Project to generate
not less than 12,298.5 kilowatts (net) of electrical power.
(b) Receipt of a report of SCS Engineers (the "SCS
Engineers' Report) confirming that (i) the capacity of the
landfill to which Gasco has production rights under the Sublease
Agreement is adequate to assure the production of sufficient
landfill gas on a long term basis to permit the Project to
generate not less than 12,298.5 kilowatts (net) of electricity
for sale under the Power Purchase Agreement and (ii) a review of
Gasco's proposed development plan for the landfill gas field and
the estimated costs for such development plan are appropriate to
permit Gasco to deliver landfill gas in sufficient quantities to
permit the Project to generate not less than 12,298.5 kilowatts
(net) for sale under the Power Purchase Agreement;
(c) the absence of any environmental liabilities which
could have any significant adverse impact on the Project;
(d) confirmation that the Purchased Assets are being
acquired free and clear of all Liens, other than liabilities
arising after the Closing Date under agreements or arrangements
which are in effect on the Closing Date and which are being
assumed by RPLP hereunder; and
(e) completion and operation of a previously approved
secondary condensate handling facility for the Project, or,
alternatively, receipt by RPLP of financial accommodations
sufficient to permit RPLP to construct such condensate facility
without further cost to RPLP.
6.11 Legal Opinion. RPLP shall have received the
favorable legal opinion from counsel to NLPC, JNPC and the Joint
Venture as to the execution, delivery and enforceability of this
Agreement.
6.12 Execution and Delivery of Closing Documents. This
Agreement and each of the other Closing Documents shall have been
duly authorized, executed and delivered by the other parties
thereto and shall be in full force and effect on the Closing Date
without any material Default or Event of Default having occurred
and be continuing thereunder or material breach thereof or
circumstance which would give any party thereto the right to
terminate any such Closing Document.
6.13 No Violations. The consummation of the transactions
contemplated hereby and by the other Closing Documents shall not
violate any Governmental Rule.
6.14 Closing Actions. Each of the actions required to be
taken pursuant to Section 3.2 or otherwise to effect the
transactions contemplated hereby shall have been duly performed
and complied with, and RPLP shall have received satisfactory
evidence of any and all such actions.
6.15 Organizational Documents. RPLP shall have received a
copy of the Joint Venture Agreement and a copy of all
qualifications or other "doing business" filings made on behalf
of the Joint Venture in the States of Illinois and Rhode Island
and any other jurisdiction where such filings are required to be
made by the Joint Venture.
6.16 Issuance of Permits. RPLP shall have been issued or
effectively assigned all environmental, air quality or other
Permits which are required to permit RPLP to continuously operate
the Project at not less than 12,298.5 kilowatts (net), assuming
not more than 5% maintenance downtime.
6.17 Assumption of Northwestern Financing Arrangements.
The holders of the Notes issued under the Northwestern Financing
Arrangements shall have consented to the assumption by RPLP of
such arrangements on a basis which does not require that RPLP
reduce the principal amount outstanding as of the Effective Date
by more than $3 million or incur other expenses for the account
of Northwestern National Life Insurance Company or its Affiliates
in connection therewith in excess of $400,000 and otherwise on
terms and conditions satisfactory to RPLP.
6.18 Distribution Certificate. RPLP shall have received a
certificate of an officer of the Joint Venture setting forth the
aggregate amount of all payments to Affiliates of the Joint
Venture with respect to the Management Agreements and the
Affiliate Notes which were made from and after the Effective Date
and which reduce the Purchase Price as set forth in Section 2.2
above.
6.19 Amendment of Lease Agreement. RISWMC shall have
executed and delivered to the Joint Venture and RPLP an amendment
of the Lease Agreement in form and substance satisfactory to
RISWMC, the Joint Venture and RPLP, which adds to the definition
of the Site leased to the Joint Venture under the Lease Agreement
the additional land areas designated as Phase IV and Phase V.
6.20 Termination of the WPI Agreements. RPLP shall have
received written evidence, reasonably satisfactory to it, that
the WPI Agreements will be terminated in all respects, effective
on the Closing.
ARTICLE 7
Conditions Precedent to the
Obligations of the Joint
Venture
The obligations of the Joint Venture to consummate the
transactions contemplated hereby shall be subject to the
fulfillment to the satisfaction of, or waiver by, the Joint
Venture, in its sole discretion, of each of the following
conditions on or prior to the Closing:
7.1 No Termination. This Agreement shall not have been
terminated pursuant to Section 8.5 hereof.
7.2 Representations True and Correct; Certificate. The
representations and warranties of RPLP contained in this
Agreement shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as if
made on and as of the Closing Date, and RPLP shall have executed
and delivered to the Joint Venture an officer's certificate
confirming same.
7.3 Compliance with Covenants; Certificate. RPLP shall
have performed and complied in all material respects with all
covenants, agreements and conditions required by this Agreement
to be performed or complied with by it prior to or on the Closing
Date, and RPLP shall have executed and delivered to the Joint
Venture an officer's certificate confirming the same.
7.4 No Adverse Proceedings. On the Closing Date, no
action or proceeding shall be pending by any public authority or
private individual or entity before any court or administrative
body to restrain, enjoin or otherwise prevent the consummation of
this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the
transactions proposed hereby.
7.5 Proceedings Satisfactory. All proceedings to be taken
in connection with the consummation of the transactions
contemplated by this Agreement and all documents incident
thereto, shall be reasonably satisfactory in form and substance
to the Joint Venture and its counsel, and the Joint Venture and
its counsel shall have received copies of such documents as they
may reasonably request in connection therewith; including, but
not limited to, complete and unconditional discharges and
releases of the Joint Venture from any and all obligations and
liabilities under the Northwestern National Financing
Arrangements, any Assignments and the Lease.
7.6 Consents and Notices. All Governmental Consents and
Notices, Additional Consents and Notices and other consents or
notices required to be obtained from or made to any
Person shall have been duly obtained, made or provided, as the
case may be, and shall be in full force and effect.
7.7 Modification of Sublease Agreement. Modification of
the Sublease Agreement in the manner described in Section 6.9
above and otherwise in form and substance reasonably satisfactory
to the Joint Venture to reflect amendments to the Lease Agreement
described in Section 6.19 above.
7.8 Legal Opinion. The Joint Venture shall have received
the favorable legal opinion from counsel for RPLP as to the
execution, delivery and enforceability of this Agreement.
7.9 Execution and Delivery of Closing Documents. This
Agreement and each of the other Closing Documents shall have been
duly authorized, executed and delivered by the other parties
thereto and shall be in full force and effect on the Closing Date
without any material Default or Event of Default having occurred
or existing thereunder or material breach thereof or circumstance
which would give any party thereto the right to terminate any
such Closing Document.
7.10 No Violations. The consummation of the transactions
contemplated hereby and by the other Closing Documents shall not
violate any Governmental Rule.
7.11 Closing Actions. Each of the actions required to be
taken pursuant to Section 3.2 or otherwise to effect the
transactions contemplated hereby, including the payment of the
Purchase Price, shall have been duly performed and complied with,
and the Joint Venture shall have received satisfactory evidence
of any and all such actions.
7.12 WPI Releases. The Joint Venture shall have received
complete and unconditional discharges and releases from any and
all liabilities or obligations under the WPI Agreements.
ARTICLE 8
Pre-Closing Covenants and
Termination
8.1 General Pre-Closing Covenants of NLPC, JNPC and the
Joint Venture. Until the Closing Date, each of NLPC, JNPC and
the Joint Venture shall, and shall cause their respective
affiliates to do the following, unless RPLP shall otherwise agree
in writing, or except as shall otherwise be required in order to
comply with the requirements of any Project Document, Permit or
Governmental Rule:
8.1.1 Full Access. Permit RPLP and its
representatives, agents, counsel and accountants upon reasonable
notice and in compliance with reasonable rules and regulations of
the Joint Venture to have full access during normal business
hours to all properties, books, accounts, records, contracts,
files, correspondence, tax records and documents of the Joint
Venture relating to the ownership, construction, permitting,
financing or operation of the Project and the Purchased Assets
which are in the possession or control of any of such Persons
(excluding, however, any documents relating to the potential sale
of the Project or the Purchased Assets to parties other than
RPLP), and permit RPLP to cause its agents to conduct such
reviews, inspections, surveys, tests and investigations of the
Joint Venture, the Project and the Purchased Assets as RPLP deems
necessary or advisable.
8.1.2 Furnishing Information. Promptly furnish or
cause to be furnished, at its sole cost and expense, to RPLP and
its representatives originals or copies of all Project Documents
and other documents, records, data and information concerning
such businesses, assets, finances and properties of or relating
to any of the Joint Venture, the Project and the Purchased Assets
that may be reasonably requested by RPLP, including copies of all
environmental reports, and plans and specifications pertaining to
all or any portion of the Project or the Site, in each case, in
the possession or control of such Persons.
8.1.3 Consultation with Accountants. Subject to the
standards set forth in Section 8.1.1 above, permit RPLP to
consult with the accountants for the Joint Venture and the
Project and said accountants are hereby authorized to disclose
all information in their possession to RPLP with respect thereto;
provided, however, that the accountants' expenses incurred as a
result of such consultation shall be paid by RPLP.
8.1.4 Discussions with Project Participants. Permit
RPLP and their representatives and agents to discuss the
transactions contemplated hereby with any of the parties to the
Project Documents or any other Person who has any relationship to
the Project or the Joint Venture; provided, however, that in each
case, NLPC, JNPC and the Joint Venture shall be given notice of
such proposed contact and the opportunity to participate in such
discussions.
8.1.5 Representations and Warranties. Refrain from
doing, or causing to be done, anything which would cause the
representations and warranties set forth in Article 4 hereof from
being true, complete and accurate in all material respects on the
Closing Date as if made on such date.
8.1.6 Conduct of Business. Except as expressly
contemplated hereby (including amendments to the Sublease
Agreement and the transfer of the blowers to Gasco), carry on the
Project and the business of the Joint Venture in the ordinary
course, and not sell, transfer or otherwise dispose of any of the
Purchased Assets (other than in the ordinary course) and continue
to use, operate, maintain and repair the Project and all
Purchased Assets in accordance with all Permits, all Project
Documents and all applicable Governmental Rules and otherwise in
accordance with the prior practice.
8.1.7 Preservation of Assets, Relationships, Etc.
Except for the Amendment to the Sublease Agreement and the
transfer of the blowers to Gasco, preserve intact the Project,
the Purchased Assets and the business organization of the Joint
Venture and (except for the Sublease Amendment) preserve the
present relationships with all other parties to the Project
Documents and others involved with or having any relationship to
the Project.
8.1.8 New Obligations. Except for the Sublease
Amendment, refrain from entering into any material contract,
agreement or instrument of any type, whether written or oral, or
otherwise incur any new liabilities, whether contingent or
otherwise, except in the ordinary course of business or in
accordance with the Project Documents.
8.1.9 No Defaults or Events of Default. Refrain
from doing any act or omitting to do any act, or permitting any
act or omission to act, which will cause a Default or Event of
Default under any Project Document.
8.1.10 No Solicitations, Etc. Refrain from
soliciting or encouraging (by way of furnishing information,
negotiations, or otherwise) any inquiries or proposals for the
direct or indirect acquisition of the stock of NLPC or JNPC,
their respective Joint Venture Interests, the Project or the
Purchased Assets, except in the ordinary course and consistent
with past practices.
8.1.11 No Distributions. From and after the
Effective Date, refrain from making any distribution or other
payment by the Joint Venture to any of NLPC or JNPC or any of
their respective Affiliates other than (i) payments to Gasco
under the Sublease Agreement and (ii) payments with respect to
the Management Agreements and Affiliate Notes which were not
included in the determination of Current Liabilities and which
will reduce the Purchase Price as described in Section 2.2 above.
8.2 Notification. Each of the Joint Venture, NLPC and
JNPC, on the one hand, and RPLP, on the other hand, shall
promptly notify the other party in writing of any event,
circumstance or condition that results or, with the passage of
time or notice, or both, would reasonably be likely to result, in
(a) any representation or warranty made to or for the benefit of
such other party under this Agreement being false in any material
respect at any time, or (b) any condition to Closing for the
benefit of such other party being unable to be satisfied or (c)
the inability of the notifying party to perform any of its
respective obligations hereunder.
8.3 Filings and Consents. As promptly as practicable,
each of NLPC, JNPC and the Joint Venture, on the one hand, and
RPLP, on the other hand, shall use their reasonable, good faith
and diligent efforts to make, or cause to be made, all such
filings and submissions and obtain or cause to be obtained all
such consents and approvals applicable to it, in order to
consummate the transactions contemplated by this Agreement in
accordance with the terms
hereof.
8.4 Confidentiality.
(a) RPLP understands that as part of its due diligence to
date and its subsequent due diligence as a result of this
Agreement, RPLP has had and will have access to certain
information provided to it by NLPC, JNPC and the Joint Venture
which such Persons deem confidential and/or proprietary. Such
information may include, but not be limited to:
(i) information identified at the time of disclosure as
confidential, proprietary or secret by NLPC, JNPC or the
Joint Venture, or any of their respective employees,
agents, attorneys or consultants;
(ii) information involving the economic plans, development,
construction, permitting, financing, equipment procurement,
feasibility assessments, or contracts relating to the
Project and the Joint Venture's business;
(iii) analyses, computations, studies, documents and
records prepared by, or with respect to, NLPC, JNPC or the
Joint Venture, or any of their respective employees, agents
or representatives; and
(iv) the Financial Statements and the Project Documents.
All such information shall, unless approved in writing otherwise
by the Joint Venture, be deemed "Confidential Information" and
shall be treated as such in accordance with Section 8.4(b) below.
Confidential Information shall not be deemed to include
information which (x) is now generally known or readily available
in the trade or public, (y) RPLP or its Affiliates can document
was possessed by RPLP or its Affiliates prior to its disclosure
by the Joint Venture or (z) was acquired by RPLP or its
Affiliates from a third party (other than the parties hereto or
their respective accountants or attorneys); provided that in each
case RPLP or its Affiliates did not have reason to know or
believe that such information was obtained in violation of any
obligation of confidentiality in favor of the Joint Venture or
its Affiliates.
(b) RPLP specifically agrees for itself, its Affiliates and
their agents that until the Closing Date, or thereafter if the
transactions contemplated hereby are not consummated:
(i) all such Persons will maintain the Confidential
Information so imparted, secret and confidential;
(ii) all such Persons will not use the Confidential
Information or any information derived therefrom other than
for the purpose contemplated herein;
(iii) all such Persons will not transmit or further
disclose such Confidential Information to any third party,
including, but not limited to RISWMC, NEP, WPI, the Rhode
Island Department of Environmental Management ("RIDEM") or
the United States Environmental Protection Agency ("EPA");
(iv) all such Persons will not contact directly or
indirectly any of RISWMC, NEP, WPI, RIDEM or EPA without
the prior written permission of the Joint Venture for the
purpose of discussing this transaction or any of the
Confidential Information; and
(v) any unauthorized use of the Confidential Information or
contact with RISWMC, NEP, WPI, RIDEM or EPA other than as
permitted herein may cause material harm to the Joint
Venture and/or its Affiliates, that such harm may be
difficult to ascertain, and that the Joint Venture shall
have, in addition to its rights and remedies at law, the
right to obtain an injunction from any court of competent
jurisdiction to restrain RPLP or any of its Affiliates from
continuing such violation.
Further, RPLP agrees that neither it nor any of its Affiliates
shall make any copy or in any way reproduce or excerpt such
Confidential Information except as necessary to accomplish the
purpose which is specifically contemplated herein or as otherwise
authorized by the Joint Venture in writing. In the event that
either party terminates this Agreement, then upon the request of
the Joint Venture, RPLP shall promptly cause all Confidential
Information and all copies thereof to be returned to the Joint
Venture.
8.5 Termination. This Agreement may be terminated at any
time prior to the Closing as follows, and in no other manner:
(a) By the mutual agreement of RPLP, NLPC, JNPC and the
Joint Venture in writing.
(b) By written notice from (i) RPLP to NLPC, JNPC and the
Joint Venture or (ii) NLPC, JNPC and the Joint Venture to RPLP,
if at any time any of such parties fails to perform any
obligation hereunder in a timely manner and fails to cure the
same promptly after written notice thereof from the other
party(s) or any representation or warranty of any party hereunder
proves to be false in any material respect and is not promptly
cured after written notice thereof from the other party(s),
except to the extent that any such representation or warranty is
made as of a specified date, in which case, such representation
or warranty shall have been true and correct in all material
respects as of such date unless the circumstances that made any
such representation or warranty false or misleading at the time
shall no longer be continuing.
(c) After March 31, 1996 by written notice from each of
NLPC, JNPC and the Joint Venture to RPLP unless on or before such
date, RPLP shall provide written confirmation to the Joint
Venture that (i) the Closing conditions set forth in Sections
6.10(a), 6.10(b) and 6.10(c) have been satisfied (or waived by
RPLP) and (ii) RPLP has been capitalized with equity
contributions from its partners in an amount of not less than
$10,500,000.
(d) By written notice from any party to the other parties
if the Closing contemplated hereunder has not taken place on or
before June 30, 1996 (other than as a result of the notifying
party's failure to satisfy a condition to Closing which is within
its control).
(e) In the event that this Agreement is terminated pursuant
to this Section 8.5, then no party hereto shall have any further
liability or obligation to any other party hereunder, except
that RPLP shall continue to comply with the provisions of Section
8.4 above.
8.6 Further Amendment of Sublease Amendment. Each of RPLP
and the Joint Venture agree to make such further amendments to
the Sublease Amendment as Gasco and/or LKD may reasonably
request, so long as such further requested amendments are not
reasonably likely to have a material adverse affect, directly or
indirectly, on the ownership, possession or operation of their
respective assets or their respective prospects or financial
condition.
ARTICLE 9
Post Closing
Covenants
and
Conditions
9.1 Provision of Information. The originals of the books
and records, accounts, contracts, and other documents held by any
of NLPC, JNPC, the Joint Venture or any of their Affiliates and
relating to the Joint Venture, the Project or the Purchased
Assets (other than wholly internal documents which are not
reasonably necessary to the proper operation and management of
the Project) shall be delivered by such parties to RPLP at the
Closing or promptly after the Closing Date, but in no event later
than fifteen (15) days after the Closing Date.
9.2 Further Assurances. Each of NLPC, JNPC and the Joint
Venture, on the one hand, and RPLP, on the other hand, shall on
request made on or after the Closing Date, cooperate with each
other by furnishing any additional information, executing and
delivering any additional documents and/or instruments and doing
any and all such other things as may be reasonably requested by
any of the parties or their counsel to consummate or otherwise
further implement or effectuate the transactions contemplated by
this Agreement and the other Closing Documents, provided that no
party shall be required to incur any additional liability or
unreimbursed expenses in connection with any such request.
9.3 Performance Test. Within 60 days after the Closing
Date, RPLP will purchase and install, at its expense, monitoring
equipment and instrumentation which will provide instantaneous
and continuous measurement of (a) the quantity of landfill gas
delivered by the gas collection system, (b) the percentage of
methane and oxygen in such landfill gas and (c) the total BTU
content of such landfill gas. At any time and from time to time
within the six month period after such monitoring equipment and
instrumentation is installed by RPLP, and upon five days prior
written notice to RPLP, the Joint Venture may conduct a test (the
"Performance Test") to demonstrate that the landfill gas
gathering system can supply landfill gas for a cumulative total
of 720 hours which (x) contains not less than 50% methane, (y)
contains not more than 2% oxygen and (z) has a minimum caloric
content of not less than 158.224 MMBTU/hr (Higher Heating Value).
RPLP and the Joint Venture shall each have the right to
designate personnel to observe the conduct of the Performance
Test, and each agrees that the Performance Test shall be
conducted in accordance with the following criteria:
(i) Any quantity of landfill gas delivered by the landfill
gas collection system containing less than 50% methane and/or
more than 2% oxygen shall be disregarded in determining whether
the 158.224 MMBTU/hr (Higher Heating Value) requirement has been
met.
(ii) Any hour in which the landfill gas collection system
delivers less than 158.224 MMBTU/hr (Higher Heating Value) shall
not count towards the 720 hour cumulative total, and the 720 hour
cumulative total standard shall be increased by one additional
hour for each such uncounted hour, provided, however, if the
cause of such non-delivery is an event or occurrence which is
beyond the control of Gasco (including the failure of any of
RPLP's equipment which adversely affects the ability of the
landfill gas collection system to make such delivery) then the
720 hour cumulative total shall not be extended by reason of such
non-delivery.
(iii) For purposes of the 158.244 MMBTU/hr (Higher Heating
Value) portion of the Performance Test, an "hour" shall be a
period of 60 consecutive minutes commencing with the first minute
of each whole clock hour.
(iv) All landfill gas deliveries meeting the minimum
specifications described in (i), (ii) and (iii) above shall be
included in the Performance Test, without regard to whether such
deliveries are utilized by the Facility or are flared.
RPLP will cooperate with the Joint Venture in such manner as the
Joint Venture shall request to maximize the performance of the
landfill gas gathering system for purposes of the Performance
Test; provided, however, that RPLP shall not be required to incur
any material unreimbursed expense in connection with such
cooperation or to operate the Facility except in accordance with
good operating practices. At the request of RPLP or the Joint
Venture, SCS Engineers may be retained to resolve any dispute in
connection with the administration or conduct of the Performance
Test or the interpretation of the results thereof and each of
RPLP and the Joint Venture agrees that in the event SCS Engineers
are retained to perform any verification or confirmation of the
Performance Test results, the cost of SCS Engineers shall be
shared equally by RPLP and the Joint Venture.
9.4 Release and/or Use of Joint Account. At such time as
the Joint Venture has conducted and satisfactorily met the
requirements of the Performance Test within the six month period
allowed for the Performance Test, then RPLP shall immediately
authorize distribution to the Joint Venture of any amounts
remaining in the Joint Account. However, if the Joint Venture
shall not have satisfactorily completed the Performance Test
within such six month period, then NLPC, JNPC and the Joint
Venture shall (a) cause their respective affiliates to implement
such modifications, maintenance or repairs to the landfill gas
gathering system as may be recommended by SCS Engineers, with
RPLP's consent, to increase the production capability of the gas
gathering system so as to produce on a continuous basis 158.224
MMBtu/hr (Higher Heating Value) and (b) authorize disbursement of
amounts remaining in the Joint Account (up to the full amount
thereof) to pay for any and all expenses related to such items
until such time as the requirements of the Performance Test have
been met. The Joint Venture may conduct a Performance Test in
accordance with the terms of Section 9.4 at any time the Joint
Venture believes sufficient modifications, maintenance or repairs
have been completed. Amounts remaining in the Joint Account (if
any) after satisfactory completion of the Performance Test and
payment of all the aforementioned expenses shall be promptly
distributed to the Joint Venture. RPLP shall promptly consent to
the authorization for any such disbursements for expenses and
distribution to the Joint Venture. The liability of NLPC, JNPC
and the Joint Venture for obligations under this Section 9.4
shall be limited to amounts remaining in the Joint Account (if
any), and RPLP remedies shall be limited in recourse to such
balance.
ARTICLE 10
Indemnificat
ion
10.1 Indemnification by NLPC, JNPC and the Joint Venture.
(a) Each of NLPC, JNPC and the Joint Venture shall, to the
maximum extent not prohibited by law, indemnify, defend and hold
harmless RPLP and all of its Affiliates, shareholders, partners,
members, investors, directors, officers, employees and agents
from and against any and all losses, liabilities, damages, claims
or expenses (including reasonable attorneys' fees and expenses)
arising after the Closing and suffered or incurred by any such
Person by reason of or resulting directly from the inaccuracy of
the representation and warranty contained in Section 4.29 above
or the breach, nonfulfillment or nonperformance of any post
closing covenant or agreement by NLPC, JNPC or the Joint Venture
as the case may be, under this Agreement or any other Closing
Document. Such indemnity shall be the exclusive remedy for any
such inaccuracy, breach, non-fulfillment or non-performance.
10.2 Indemnification by RPLP. RPLP shall, to the maximum
extent not prohibited by law, indemnify, defend and hold harmless
each of NLPC, JNPC and the Joint Venture and all of their
respective Affiliates, shareholders, partners, members,
investors, directors, officers, employees and agents, from and
against any and all losses, liabilities, damages, claims or
expenses (including reasonable attorneys' fees and expenses)
arising after the Closing and suffered or incurred by any such
party by reason of or resulting directly from the inaccuracy of
the representation and warranty contained in Sections 5.8 and
5.11 above, or the breach, nonfulfillment or nonperformance of
any post-closing covenant or agreement of RPLP under this
Agreement or any other Closing Document, including, but not
limited to, RPLP's obligations under Section 2.2 to pay the
Purchase Price; under Section 2.5 to discharge, satisfy or pay
when due certain liabilities of the Joint Venture assumed by RPLP
under such Section; and under Section 11.2.1 to pay increase in
taxes due. Such indemnity shall be the exclusive remedy for any
such inaccuracy, breach, non-fulfillment or non-performance.
10.3 Procedure for Claims. Any Person entitled to
indemnification hereunder shall give prompt, written notice to
the indemnifying party setting forth the circumstances giving
rise to such claim as well as the amount sought. The
indemnifying party shall have the right, but not the obligation,
to defend against, negotiate, settle or otherwise deal with such
claim, at its own expense and represented by counsel of its
choice, which right shall be exercised within 15 days after
receipt of notice of the claim; provided, however, that if the
indemnifying party exercises such right, the Person seeking
indemnification nevertheless may participate in any proceeding at
its expense with counsel of its choice, and provided, further,
that the indemnifying party may not enter into a settlement with
respect to such claim without the consent of the Person seeking
indemnification unless such settlement is limited to a payment of
money for which the Person seeking indemnification is fully
indemnified by the indemnifying party. If the indemnifying party
does not elect to deal with any claim, the such indemnifying
party shall have no liability with respect to any compromise or
settlement thereof undertaken without its consent. The parties
will cooperate fully with one another in connection with the
defense, negotiation or settlement of any claim.
ARTICLE 11
Tax
Matters
11.1 Sales and Transfer Taxes. All transfer, sales, use,
documentary transfer, stamp or excise taxes, or other similar
taxes of any type payable in connection with the sale and
transfer of the Purchased Assets or otherwise in connection with
the consummation of the transactions contemplated by this
Agreement and the other Closing Documents, shall be the exclusive
responsibility of and shall be paid by the Joint Venture.
11.2 Income Tax Matters.
11.2.1 Certain Income Tax Effects of the
Transaction. The parties acknowledge and agree that the
transactions contemplated by this Agreement constitute, for
income tax purposes, a taxable sale of the Purchased Assets on
the Closing Date, and the Joint Venture will report, and NLPC and
JNPC will take into account, and there will be reported by such
Persons to the Internal Revenue Service (and to the appropriate
state, local and foreign income tax authorities), their allocable
share of the Joint Venture's income, gains, deductions, losses,
credits and other items realized by the Joint Venture in
connection with the sale of the Purchased Assets in the taxable
year of the Joint Venture in which the Closing Date occurs. RPLP
shall indemnify each of NLPC and JNPC against the increase (if
any) in the aggregate total of all federal, state or local income
taxes imposed on such Persons to the extent that the parties'
decision to close as of the Effective Date rather than on the
Closing Date is the cause of such increase (to be calculated
using the applicable rates in effect on the Effective Date as the
applicable rates in effect on the Closing Date, regardless of the
actual rates applicable on the Closing Date). Within 20 days
after the Closing Date, the Joint Venture shall deliver to RPLP
an officer's certificate setting forth the amount due (if any)
pursuant to this Section 11.2.1, together with two computations
setting forth the (x) total amount of tax which would have been
payable by NLPC and JNPC if the Closing had occurred on the
Effective Date and if the Purchase Price had been invested in
U.S. Government obligations earning the same 5.2% per annum rate
specified in Section 2.2(g) above from the Effective Date through
the Closing Date and (y) the total amount of taxes payable by
NLPC and JNPC as a result of closing the transactions
contemplated hereby on the Closing Date. To the extent that the
amount described in (y) exceeds the amount described in (x), RPLP
shall pay over such excess amount to the Joint Venture within 10
days of receipt of such certificate and computations (absent
manifest error).
11.2.2 Cooperation and Exchange of Information.
Each of NLPC, JNPC, the Joint Venture and RPLP shall furnish or
cause to be furnished to each other (at reasonable times) upon
request and as promptly as practicable, such information
(including, without limitation, access to personnel and books and
records) pertinent to tax matters to which this Agreement relates
and assistance relating to such tax matters as is reasonably
necessary for the preparation, review, audit and filing of any
tax return, the preparation for any tax audit, or the defense or
prosecution of any assessment or other similar claim or any
administrative or court proceeding. The party requesting
information shall reimburse the other for the third party costs
of providing such information. Any information obtained by a
party hereto from another party hereto in connection with any tax
matters to which this Agreement relates shall be kept
confidential, except as may be otherwise necessary in connection
with the filing of tax returns or claims for refund or in
conducting an audit or other proceeding.
ARTICLE 12
Miscellane
ous
12.1 Transaction Costs. Except as otherwise expressly
provided herein, RPLP, on the one hand, and each of RLPC, JNPC
and the Joint Venture, on the other, shall pay all of their own
costs and expenses (including attorney's fees and other legal
costs and expenses and accountants' fees and other accounting
costs and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
12.2 Entire Agreement. This Agreement represents the
entire understanding and agreement among the parties with respect
to the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made by
and among such parties.
12.3 Amendments. The provisions of this Agreement may not
be amended, supplemented, waived or changed orally, but only by a
writing signed by each of the parties hereto.
12.4 Assignments. No party shall assign its rights and/or
obligations hereunder without the prior written consent of each
other party to this Agreement.
12.5 Binding Effect. All of the terms and provisions of
this Agreement, whether so expressed or not, shall be binding
upon, inure to the benefit of, and be enforceable by the parties
and their respective administrators, executors, legal
representatives, heirs, successors and permitted assigns.
12.6 Headings. The headings contained in this Agreement
are for convenience of reference only, are not to be considered a
part hereof and shall not limit or otherwise affect in any way
the meaning or interpretation of this Agreement.
12.7 Notices. All notices, requests, consents and other
communications required or permitted under this Agreement shall
be in writing and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service,
telefaxed, or mailed by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
To RPLP:
Ridgewood Providence Power Partners, L.P.
c/o Ridgewood Power Corporation With a copy to: De Forest &
Duer
947 Linwood Avenue 90 Broad
Street
Ridgewood, New Jersey 07450 New York,
NY 10004
Attn: President Attn: Lee Black, Esq.
Fax: (201) 447-0474 Fax: (212) 425-7581
To NLPC, JNPC and the Joint Venture:
c/o Palmer Management Corporation
13 Elm Street
Suite 200 With a copy to: Hinckley,
Allen & Snyder
Cohasset, MA 02025 1500 Fleet
Center
Providence, RI 02903
Fax: (617) 383-3205 Attn: Pasco Gasbaro, Jr.
Fax: (401) 277-9600
or to such other address as any party may designate by notice
complying with the terms of this Article 12.7. Each such notice
shall be deemed delivered (a) on the date actually delivered if
by messenger or courier service; (b) on the date of confirmed
answer-back if by telefax; and (c) on the date upon which the
return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the
case may be, if mailed.
12.8 Severability. If any provision of this Agreement or
any other Agreement entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be
given full force and effect so far as possible. If any provision
of this Agreement may be construed in two or more ways, one of
which would render the provision invalid or otherwise voidable or
unenforceable and another of which would render the provision
valid and enforceable, such provision shall have the meaning
which renders it valid and enforceable.
12.9 Waivers. The failure or delay of any party at any
time to require performance by another party of any provision of
this Agreement, even if known, shall not affect the right of such
party to require performance of that provision or to exercise any
right, power or remedy hereunder. Any waiver by any party of any
breach of any provision of this Agreement should not be construed
as a waiver or any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any
right, power or remedy under this Agreement. No notice to or
demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or
other circumstances.
12.10 Enforcement Costs. If any legal action or other
proceeding is brought for the enforcement of this Agreement or
any other Closing Document, or because of an alleged dispute,
breach, default or misrepresentation in connection with any
provision of this Agreement or any other Closing Document, the
successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs
(including, without limitation, all such fees, taxes, costs and
expenses incident to arbitration, appellate, bankruptcy and post-
judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may
be entitled. Attorneys' fees shall include, without limitation,
paralegal fees, investigative fees, administrative costs, sales
and use taxes and all other customary charges billed by the
attorney to the prevailing party.
12.11 Each of NLPC, JNPC and the Joint Venture, on the one
hand, and RPLP, on the other hand, confirm that the
representations, warranties, covenants, undertakings and
agreements set forth herein are being made as an inducement to
the other parties to enter into this Agreement; provided,
however, that:
(a) RPLP acknowledges and agrees that (i) the
representations and warranties being made by NLPC, JNPC and the
Joint Venture in Article 4 hereof (other than the HSR Act
representation contained in Section 4.29) and any certificate
delivered pursuant to Article 6 hereof confirming same, shall not
survive the Closing, (ii) in the event RPLP determines prior to
the Closing that any representation or warranty contained in
Article 4 (other than Section 4.29) or in such certificate is not
true, then RPLP's only options and sole and exclusive remedies
are either to terminate this Agreement in accordance with the
provisions of Section 8.5 hereof, or to proceed to close the
transaction, and thereby waive the requirement that such
representation and warranty be true and (iii) in all events, RPLP
shall have no claim or cause of action (and hereby waives any and
all such claims or causes of action) against any of NLPC, JNPC or
the Joint Venture or their respective Affiliates and any partner,
shareholder, officer, director, agent or representative for any
breach of any of the representations and warranties contained in
Article 4 (other than Section 4.29) or any certificate delivered
pursuant to Article 6 or for reliance by RPLP as an inducement to
take or refrain from taking action, at any time, either before or
after the Closing Date.
(b) Each of NLPC, JNPC and the Joint Venture acknowledges
and agrees that (i) the representations and warranties being made
by RPLP in Article 5 hereof (other than the representations
contained in Sections 5.8 and 5.11) and any certificate delivered
pursuant to Article 7 hereof confirming same, shall not survive
the Closing, (ii) in the event NLPC, JNPC or the Joint Venture
determines prior to the Closing that any representation or
warranty contained in Article 5 (other than Sections 5.8 and
5.11) or in such certificate is not true, then their only options
and sole and exclusive remedies are either to terminate this
Agreement in accordance with the provisions of Section 8.5
hereof, or to proceed to close the transaction, and thereby waive
the requirement that such representation and warranty be true and
(iii) in all events, none of NLPC, JNPC or the Joint Venture
shall have any claim or cause of action (and hereby waives any
and all such claims and causes of action) against RPLP or its
Affiliates for any breach of any of the representations and
warranties contained in Article 5 (other than Sections 5.8 and
5.11) or for reliance by any of NLPC, JNPC or the Joint Venture
as an inducement to take or refrain from taking any actions, at
any time, either before or after the Closing Date.
(c) In all events, the representations and warranties made
by NLPC, JNPC and the Joint Venture in Section 4.29 and by RPLP
in Sections 5.8 and 5.11 survive the Closing and are subject to
the indemnification provisions of Article 10 hereof.
12.12 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. Confirmation of execution by telefax of a signature
page shall be binding upon any party so confirming.
12.13 Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of
the State of Rhode Island, without regard to principles of
conflicts of laws. Each party hereby consents to the
jurisdiction of any Rhode Island court or tribunal for the
purpose of resolving any disputes hereunder.
12.14 Preparation of Agreement. This Agreement shall not
be construed more strongly against any party regardless of who is
responsible for its preparation. The parties acknowledge each
contributed and is equally responsible for its preparation.
12.15 Materiality. As used in this Agreement the word
"material" shall refer to materiality with respect to the subject
matter of the particular representation, warranty or covenant in
question, and not materiality in relation to the purchase price
or transactions contemplated hereby as taken as a whole.
12.16 Receipt of Monies, Etc. Any monies, checks, drafts,
money orders, postal notes and other instruments received after
the Closing Date by any of NLPC, JNPC or the Joint Venture or
their Affiliates in payment of any amounts due the Joint Venture
or the Project shall be promptly delivered to RPLP.
ARTICLE 13
Execution
Clause
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
Ridgewood Providence Power Partners, L.P.
By: Ridgewood Providence Power Corporation
By: /s/ Robert E. Swanson
Name: Robert E. Swanson
Title: President
Northeast Landfill Power Company
By:/s/ Gordon L. Deane_
Name: Gordon L. Deane
Title: President
Johnston Natural Power Corporation
By: /s/Hugh M. Eaton
Name: Hugh M. Eaton
Title: Chairman
Northeast Landfill Power Joint Venture
By: Northeast Landfill Power Company, general partner
By: /s/ Gordon L. Deane
Name: Gordon L. Deane
Title: President
By: Johnston Natural Power Corporation, general partner
By:/s/ Hugh M. Eaton
Name: Hugh M. Eaton
Title: Chairman
By:/s/ Doualel F. Dargie
Name: Doualel F. Dargie
Title: Vice President
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